4 months ago
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A complainant tin straight attack the High Court if a constabulary presumption “rejects” the complaint, and determination is nary request for the complainant to archetypal attack the superior constabulary serviceman against the rejection of the ailment and later, if the superior serviceman excessively rejects it, to lodge a backstage ailment earlier the jurisdictional Magistrate, ruled the High Court of Karnataka.
The tribunal said that the process of approaching a superior serviceman and the Magistrate, prescribed nether Section 173(4) of Bharatiya Nagarik Suraksha Sanhita (BNSS), applies exclusively to cases of “refusal” to grounds accusation and does not widen to cases of “rejection” of a ailment by a reasoned endorsement.
Rejection connected merit
When the ailment is rejected connected merits, the complainant is entitled to situation the legality of specified rejection directly, including by invoking the writ jurisdiction of the High Court, without being compelled to exhaust remedies that are inapposite to the quality of the grievance, the tribunal said.
Justice Suraj Govindaraj passed the bid portion directing the constabulary to registry a First Information Report (FIR) based connected a ailment lodged by B.H. Nagaraju of Bengaluru, who was allegedly cheated by his member successful property business. The constabulary had fixed an endorsement to Mr. Nagaraju stating that “it is simply a civilian quality and it has to beryllium redressed earlier a competent court”.
Interpreting Section 173(4) of the Bharatiya Nyaya Sanhita (BNS), the tribunal said that a “refusal” of complainant contemplated nether Section 173(4) is for the script wherever the constabulary serviceman either “does not person the ailment astatine all, oregon having received it, chooses not to grounds it arsenic required nether law”, without entering into immoderate adjudicatory appraisal of the allegations. In specified circumstances, the tribunal said, the statute obligates the complainant to archetypal attack the superintendent of police, and lone thereafter, if the grievance remains unredressed, to invoke the jurisdiction of the Magistrate.
Different footing
However, “rejection” of a ailment stands connected a fundamentally antithetic footing, the tribunal said, portion pointing retired that it presupposes that the ailment has been received, taken connected record, and consciously considered by the constabulary authority. The grievance of the complainant past “shifts from 1 of administrative inaction to 1 of jurisdictional overreach oregon erroneous workout of discretion,” the tribunal said.
In the contiguous case, the tribunal said, the presumption location serviceman has assumed unto himself the relation of adjudicating the quality of the dispute, terming it arsenic a civilian quality astatine the pre-registration stage, a relation which is neither contemplated nor sanctioned by the statutory model governing registration of FIRs.
Conflating the two
“This conscious ‘rejection’ transforms the quality of the grievance and removes it from the ambit of Section 173(4) of BNS,” the tribunal said, portion stating that asking the complainant to inactive traverse the remedies nether Section 173(4), firstly earlier the superior serviceman and aboriginal earlier the Magistrate, would “amount to conflating refusal with rejection”.
“Such an mentation would not lone dilute the statutory strategy but would besides licence the constabulary to efficaciously insulate their decisions from judicial scrutiny by the specified issuance of an endorsement, nevertheless erroneous oregon unsustainable it whitethorn be,” the tribunal observed.
