Source: Allahabad High Court 

Why in News? 

Recently, the Allahabad High Court in the matter of XXX v. State of U.P. has held that the present case where the allegations were of sexual assault and molestation directing the police for making preliminary inquiry and relying on the police report in favor of the accused is neither desired nor lawful. 

What was the Background of XXX v. State of U.P Case?  

• In the present case the applicant (victim) filed an application under Section 156(3) of the Code of Criminal Procedure, 1973 (CrPC). 
• The victim alleged that the time when she was moving towards her office after finishing her teaching work at school suddenly the opposite party abused her and also acted in obscene manner. 
• The opposite party tried to touch her inappropriately and molested her and hence outraged her modesty. 
• On hearing her shierks her husband reached on the spot while the opposite party tried escaping and also threatened the victim’s husband with life. 
• This was a very routine act of the opposite party towards the victim, the same was also registered to the police but no actions were taken. 
• An application was moved towards the Chief Judicial Magistrate (CJM) under Section 156(3) of CrPC. 
• Based on the preliminary inquiry report the CJM dismissed the application stating that: 
  • The application has been made due to the personal animosity of the applicant and her husband with the opposite party. 
  • The reports hold no evidence against the opposite party. 
  • The act does not amount to any cognizable offence. 
• Aggrieved by the decision of the CJM the present revision application is made to the Allahabad High Court. 

What were the Court’s Observations? 

• The Allahabad High Court observed that: 
  • Based on the precedent the scope of preliminary inquiry is to ascertain if the information received reveals any cognizable offence and not to check the veracity. 
  • The preliminary inquiry is conducted based on the facts and circumstances of the case. 
  • On further referring to the precedents it was observed that on an application under Section 156(3) of CrPC the Magistrate before the initiation of criminal prosecution may direct for a preliminary inquiry. 
  • The magistrate requires to apply minds and while passing any order. 
  • The case should be dealt keeping in mind the allegations made, time of incident and if any cognizable offence is made out remotely. 
  • The Magistrate must take steps to verify the nature of allegations of the case and preliminary inquiry in the cases pertaining to fiscal sphere, matrimonial/family disputes, commercial offences, medical negligence cases, corruption cases, or cases where there is abnormal delay/laches in initiating criminal prosecution have been permitted. (the list is not exhaustive). 
• It was held that in the present case where the allegations were of sexual assault and molestation directing the police for making preliminary inquiry and relying on the police report in favor of the accused is neither desired nor lawful. 
• Based on the above observations the Allahabad High Court set aside the order passed by the CJM and remanded the matter to him and directed the CJM to provide the applicant an opportunity of hearing in compliance with the precedents set by the Supreme Court. 

What is Section 175(3) of Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS)? 

• About: 
  • Section 175(3) of BNSS states that a Magistrate who is empowered to take cognizance under Section 210 of Sanhita may order investigation for the cognizable offence. 
  • An application under section 175(3) of BNSS discloses the cognizable offence, then it is the duty of the concerned Magistrate to direct registration of the FIR, which is to be investigated by the Investigation Agency, in accordance with law. 
  • If the information received does not disclose the commission of cognizable offence apparently, but indicates necessity for inquiry, the preliminary inquiry may be conducted in order to ascertain whether the cognizable offence is disclosed or not. 
  • Any judicial magistrate may order an investigation under Section 175(3) of CrPC before taking notice of the offence. 
• Essential Elements 
  • The power to order police investigation under Section 175 (3) is exercisable at the pre-cognizance stage. 
  • The power under Section 175 (3) can be invoked by the Magistrate before he takes cognizance of the offence. 
  • An order made under sub-section (3) of Section 175, is in the nature of a peremptory reminder or intimation to the police to exercise their plenary powers of investigation. 

Case Laws 

• Har Prasad v. State of UP (2006)  
  • The Supreme Court held that if the application under Section 156(3) CrPC. discloses the commission of cognizable offence and at the stage of Section 156(3) CrPC, which is the cognizable stage, once the cognizable offence is disclosed through an application, it was the duty of the concerned Court to order for registration and investigation of the offences, as crime detection and crime prevention are the foremost duty of the police and not of the Court. 
• Lalita Kumari v. Govt. of UP (2014) 
  • The Supreme Court held that if the information received does not disclose a cognizable offence but indicates the necessity for an inquiry, a preliminary inquiry may be conducted only to ascertain whether cognizable offence is disclosed or not. 
• Priyanka Srivastava and Ors v. State of UP and Ors (2015) 
  • The Supreme Court held that a stage has come in this country where Section 156(3) Code of Criminal Procedure applications are to be supported by an affidavit duly sworn by the applicant who seeks the invocation of the Magistrate’s jurisdiction.