Section 156(3) vs. Section 175(3): A Comparative Analysis of Procedural Changes

The new interpretation of the Bharatiya Nagarik Suraksha Sanhita (BNSS), specifically Section 175(3), which replaces Section 156(3) of the Code of Criminal Procedure (CrPC), introduces significant procedural changes that will affect its practical application. These changes aim to enhance judicial scrutiny, reduce misuse, and increase accountability in the process of ordering investigations. Below is an explanation of how these changes will impact the working of Section 156 in practice:

Key Changes and Their Practical Implications

1.       Mandatory Application to Superintendent of Police (SP):

o   Under BNSS, complainants must first apply to the SP under Section 173(4) before approaching a Magistrate under Section 175(3). This application must be supported by an affidavit.

o   Impact: This requirement ensures that complaints are first addressed administratively by higher police authorities, reducing the burden on Magistrates and discouraging frivolous or malicious complaints. It also holds complainants accountable for false allegations, as filing a false affidavit can lead to legal consequences.

2.       Magistrate’s Inquiry Before Ordering Investigation:

o   The Magistrate is now required to conduct an inquiry as deemed necessary before directing an investigation. This step was discretionary under the CrPC but is now codified in BNSS.

o   Impact: This procedural safeguard ensures that Magistrates exercise judicial discretion and verify the merit of complaints before ordering investigations. It reduces instances of arbitrary or baseless FIRs being registered.

3.       Consideration of Police Submissions:

o   Magistrates must consider submissions made by the concerned police officer explaining why an FIR was not registered before issuing any directions for investigation..

o   Impact: This measure increases police accountability and provides an opportunity for officers to justify their actions, ensuring that investigations are ordered only when genuinely warranted.

4.      Safeguards for Public Servants:

o   Section 175(4) introduces additional protections for public servants accused of offenses committed during official duties. Magistrates can order investigations only after receiving a report from a superior officer and considering the accused’s assertions.

o   Impact: This provision prevents harassment of public officials through frivolous complaints while maintaining avenues for legitimate grievances to be addressed.

5.       Enhanced Accountability and Judicial Oversight:

o   By codifying judicial practices such as requiring affidavits and inquiries, BNSS ensures that Magistrates apply their minds judiciously and pass reasoned orders.

o   Impact: This strengthens judicial oversight, reduces misuse of legal provisions, and promotes fairness in criminal proceedings.

Challenges and Criticisms

·       Increased Procedural Burden: The additional steps required under BNSS, such as affidavits and inquiries, may delay the registration of FIRs in urgent cases.

·       Potential Overburdening of Magistrates: The requirement for inquiries could increase the workload on Magistrates, potentially leading to delays in justice delivery.

·       Reduced Judicial Independence: Some critics argue that requiring Magistrates to consider police submissions before ordering investigations undermines their independence and gives undue weight to police discretion.

Conclusion

The new interpretation of BNSS aims to strike a balance between preventing misuse of investigative powers and ensuring access to justice. While these changes promote accountability and reduce frivolous litigation, they also introduce procedural complexities that could slow down the process in some cases. In practice, these reforms are expected to enhance the integrity of criminal investigations but may require adjustments in judicial and administrative workflows to avoid delays.

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