Rajasthan High Court – Jodhpur
Jogendra Pal vs State Of Rajasthan on 6 April, 2026
Author: Farjand Ali
Bench: Farjand Ali
[2026:RJ-JD:14948]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Misc(Pet.) No. 4503/2025
Jogendra Pal S/o Manohar Lal, Aged About 54 Years, Resident Of
Mnl Clav Colony, Near Ajay Hotel, Bhadra, Tehsil Bhadra, District
Hanumangarh (Raj.)
----Petitioner
Versus
1. State Of Rajasthan, Through Public Prosecutor
2. Muskan Bano D/o Rqfiq Qureshi, Resident Of Ward No. 9,
(Old Ward No. 14), Bhadra, Tehsil Bhadra, District
Hanumangarh
----Respondents
For Petitioner(s) : Mr. Moti Singh
For Respondent(s) : Mr. N.S. Chandawat Dy.G.A.
Mr. Manjeet Godara
HON'BLE MR. JUSTICE FARJAND ALI
Order
DATE OF CONCLUSION OF ARGUMENTS 11/02/2026
DATE ON WHICH ORDER IS RESERVED 11/02/2026
FULL ORDER OR OPERATIVE PART Full Order
DATE OF PRONOUNCEMENT 06/04/2026
REPORTABLE
BY THE COURT:-
1. By way of the instant Misc. Petition, the petitioner has laid a
challenge to the order dated 06.05.2025 passed by the learned
Additional Chief Judicial Magistrate, Bhadra, District
Hanumangarh, in Criminal Complaint No.82/2025, whereby the
learned Magistrate, instead of directing registration of an FIR and
investigation in the manner sought by the petitioner, has
proceeded to adopt the course of inquiry permissible under law
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and has sought assistance of the police for the limited purpose of
facilitating such inquiry.
2. The facts of the case are that upon presentation of the
complaint, the learned Magistrate proceeded to examine the
complainant under Section 223 of the Bharatiya Nagarik Suraksha
Sanhita, 2023 (hereinafter referred to as “the BNSS”). It is
noteworthy that the complainant did not choose to produce any
supporting witnesses or documentary evidence at that stage.
2.1. In the backdrop of the allegations made in the complaint,
and upon preliminary satisfaction, the learned Magistrate vide
order dated 06.05.2025, deemed it appropriate to forward the
complaint to the concerned police authority for the purpose of
conducting a limited investigation and to submit a report, so as to
assist the Court in forming an opinion as to whether sufficient
grounds exist for proceeding further in the matter. The case was
accordingly posted for further consideration on 13.06.2025.
2.2. Aggrieved by the said course adopted by the learned
Magistrate, the petitioner has approached this Court contending
that the prayer for registration and investigation of the FIR has
been erroneously declined. Hence the instant Misc. Petition.
3. I have given my thoughtful consideration to the submissions
advanced and upon perusal of the impugned order, this Court finds
that the learned Magistrate has scrupulously adhered to the
statutory framework envisaged under the BNSS.
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4. Before adverting to the merits of the controversy, it is
apposite to delineate the statutory architecture governing
complaints before a Magistrate under the BNSS.
4.1. Section 223 BNSS embodies the foundational requirement
that while taking cognizance of an offence on a complaint, the
Magistrate shall examine the complainant and the witnesses
present, if any, upon oath, and the substance of such examination
shall be reduced into writing. This provision serves as a
preliminary judicial filter, ensuring that frivolous, vexatious or
untenable complaints do not proceed unchecked. The said stage
assumes significance as it marks the point where the Magistrate
applies judicial mind and assumes seisin over the matter.
4.2. A significant and progressive departure introduced under the
BNSS is the incorporation of a participatory safeguard, whereby
the proposed accused is accorded a limited right of hearing at the
pre-process stage. This innovation seeks to infuse procedural
fairness and to prevent mechanical issuance of process without
due application of mind, thereby strengthening the balance
between the rights of the complainant and the proposed accused.
4.3. At this juncture, it becomes necessary to reproduce Section
225 BNSS (corresponding to Section 202 CrPC), which governs
postponement of issue of process and the scope of
inquiry/investigation at this stage:
“BNSS Section 225 – Postponement of issue of process
(1) Any Magistrate, on receipt of a complaint of an offence of which he
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[2026:RJ-JD:14948] (4 of 10)under section 212, may, if he thinks fit, and shall, in a case where the
accused is residing at a place beyond the area in which he exercises
his jurisdiction, postpone the issue of process against the accused,
and either inquire into the case himself or direct an investigation to be
made by a police officer or by such other person as he thinks fit, for
the purpose of deciding whether or not there is sufficient ground for
proceeding:
Provided that no such direction for investigation shall be made,–
(a) where it appears to the Magistrate that the offence complained of
is triable exclusively by the Court of Session; or
(b) where the complaint has not been made by a Court, unless the
complainant and the witnesses present (if any) have been examined
on oath under section 223.
(2) In an inquiry under sub-section (1), the Magistrate may, if he
thinks fit, take evidence of witnesses on oath:
Provided that if it appears to the Magistrate that the offence
complained of is triable exclusively by the Court of Session, he shall
call upon the complainant to produce all his witnesses and examine
them on oath.
(3) If an investigation under sub-section (1) is made by a person not
being a police officer, he shall have for that investigation all the
powers conferred by this Sanhita on an officer in charge of a police
station except the power to arrest without warrant.”
4.4. A plain reading of Section 225 BNSS makes it abundantly
clear that the Magistrate is vested with discretion to postpone
issuance of process and either conduct an inquiry himself or direct
an investigation for the limited purpose of determining whether
sufficient grounds exist to proceed. The concluding words of sub-
section (1), namely, “for the purpose of deciding whether or not
there is sufficient ground for proceeding”, unmistakably
circumscribe the scope of such investigation.
4.5. It is equally well-settled, both on principle and precedent,
that prior to invoking the jurisdiction under Section 225 BNSS, the
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Magistrate is ordinarily required to comply with the mandate of
Section 223 by examining the complainant and the witnesses
present, if any, upon oath, except in cases where the complaint is
preferred by a Court or falls within statutorily recognized
exceptions. This requirement is not a mere procedural formality
but constitutes a substantive safeguard intended to lend
authenticity and credibility to the complaint at its very inception.
The examination under Section 223 serves to crystallize the
allegations, enables the Magistrate to test the veracity and
consistency of the complainant’s version, and facilitates an
informed exercise of discretion at the subsequent stage. It is only
upon such preliminary satisfaction, derived from sworn
statements, that the Magistrate may consider it appropriate to
postpone issuance of process and resort to the mechanism under
Section 225. In the present case, this foundational requirement
stands duly complied with, thereby rendering the subsequent
course adopted by the learned Magistrate procedurally sound and
in consonance with the statutory scheme.
4.6. It is of seminal importance to appreciate that the expression
“investigation” occurring in Section 225 BNSS (corresponding to
Section 202 CrPC) does not connote or import a full-fledged police
investigation of the nature contemplated upon registration of an
FIR under the provisions governing cognizable offences. The
investigation under Section 225 is of a markedly restricted,
circumscribed and facilitative character, intended solely to assist
the Magistrate in the limited domain of inquiry at the pre-process
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stage. It is essentially inquisitorial and preliminary in nature,
devoid of the trappings of a regular police investigation, and is not
aimed at collection of evidence for prosecution in the strict sense.
Such investigation neither authorizes the exercise of coercive
powers such as arrest, nor does it culminate in the submission of
a charge-sheet or final report in the conventional sense under
Section 193 BNSS. Rather, it results in a discreet report or factual
input meant to aid the Magistrate in forming a tentative, prima
facie opinion as to whether sufficient grounds exist for proceeding
further. The legislative intent is thus clear that the “investigation”
under Section 225 operates in a narrow compass, functioning as
an ancillary tool in aid of judicial satisfaction, and cannot be
equated with, or elevated to, the status of a substantive police
investigation that triggers the full rigour of criminal prosecution.
4.7. In contradistinction, Section 175 BNSS (corresponding to
Section 156 CrPC), falling within Chapter XIII of the Sanhita,
delineates the powers of police officers to investigate cognizable
offences. The said provision reads as under:
“BNSS Section 175 – Police officer’s power to investigate
cognizable case
(1) Any officer in charge of a police station may, without the order
of a Magistrate, investigate any cognizable case which a Court
having jurisdiction over the local area within the limits of such
station would have power to inquire into or try under the
provisions of Chapter XIV:
Provided that considering the nature and gravity of the offence,
the Superintendent of Police may require the Deputy
Superintendent of Police to investigate the case.
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[2026:RJ-JD:14948] (7 of 10)(2) No proceeding of a police officer in any such case shall at any
stage be called in question on the ground that the case was one
which such officer was not empowered under this section to
investigate.
(3) Any Magistrate empowered under section 210 may, after
considering the application supported by an affidavit made under
sub-section (4) of section 173, and after making such inquiry as
he thinks necessary and submission made in this regard by the
police officer, order such an investigation as above-mentioned.
(4) Any Magistrate empowered under section 210, may, upon
receiving a complaint against a public servant arising in course of
the discharge of his official duties, order investigation, subject to–
(a) receiving a report containing facts and circumstances of the
incident from the officer superior to him; and
(b) after consideration of the assertions made by the public
servant as to the situation that led to the incident so alleged.”
4.8. The investigation contemplated under Section 175 BNSS is
qualitatively and fundamentally distinct in its nature, scope, sweep
and legal consequences from the limited inquiry envisaged under
Section 225 BNSS. An investigation under Section 175 is set into
motion upon the registration of information disclosing the
commission of a cognizable offence and is carried out by the police
in exercise of their statutory powers under Chapter XIII of the
Sanhita. Such investigation is comprehensive, adversarial in
character and directed towards collection of legally admissible
evidence with a view to ascertain the truth of the allegations and
to identify the culpability of the persons involved. It clothes the
investigating agency with wide-ranging powers, including the
authority to examine witnesses, conduct searches and seizures,
effect arrests in accordance with law, and employ other coercive
processes sanctioned by statute. The process is not merely
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exploratory or assistive, but is determinative in its potential
outcome, inasmuch as it culminates in the submission of a final
report under Section 193 BNSS (corresponding to Section 173
CrPC), either in the nature of a charge-sheet indicting the accused
or a closure report. The consequences flowing from such
investigation are thus grave and far-reaching, as they may set the
criminal law into full motion against the accused, exposing them
to prosecution and possible penal consequences. It is, therefore,
manifest that the legislative scheme draws a clear and conscious
distinction between an investigation under Section 175 BNSS,
which is a substantive step in the criminal process having serious
legal and penal ramifications, and the limited, preliminary and
facilitative inquiry under Section 225 BNSS, which is merely
intended to aid the Magistrate in forming an informed opinion at
the threshold stage without triggering the coercive machinery of
the State.
4.9. The provisions contained in Chapter XIII (police investigation)
and Chapter XVI (complaint procedure) operate in entirely distinct
spheres. While both may be triggered by a complaint, their
procedural trajectories diverge significantly. Even where a
Magistrate directs investigation under Section 175(3) BNSS, such
direction is issued at a pre-cognizance stage. However, once
cognizance is taken, the Magistrate is bound to proceed under
Chapter XVI, and the mechanism under Section 225 alone
becomes applicable.
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4.10. Thus, the investigation under Section 225 BNSS is merely an
extension of the Magistrate’s inquiry and not a substitute for police
investigation under Section 175 BNSS. It is exploratory and
ancillary in nature, and may be conducted not only by a police
officer but also by any other person such as a revenue, tax or
administrative officer, as deemed fit by the Magistrate. The
purpose remains confined to assisting the Magistrate in concluding
the inquiry.
4.11. In the course of investigation under Section 175 BNSS, the
police may arrest the accused and submit a charge-sheet.
However, in proceedings under Section 225 BNSS, no such
coercive steps are contemplated. The report submitted is only to
aid and assist the Magistrate, and the ultimate decision whether to
issue process rests solely with the Court upon independent
application of mind.
4.12. In the present case, the learned Magistrate, after examining
the complainant under Section 223 BNSS and noticing the absence
of supporting material, has consciously chosen not to direct the
registration of an FIR, but instead to invoke Section 225 BNSS in
order to conduct an inquiry himself, to deliberate upon the
question of cognizance, and thereafter either to issue process
against the proposed accused or to dismiss the complaint. In the
course of such inquiry, he may seek the assistance of the police to
arrive at a conclusion. Such an approach reflects judicial prudence
and due application of mind.
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4.13. The contention of the petitioner that the learned Magistrate
ought to have directed registration of an FIR is devoid of merit.
The law does not mandate that every complaint must culminate in
such direction. The choice of procedure, whether to proceed under
the complaint mechanism or to direct investigation, is vested in
the sound judicial discretion of the Magistrate, depending upon
facts and circumstances of each case.
4.14. No perversity, illegality or jurisdictional error is discernible in
the impugned order. On the contrary, the course adopted by the
learned Magistrate is in consonance with the statutory scheme and
settled legal principles, ensuring that neither frivolous complaints
are entertained nor genuine grievances are prematurely stifled.
4.15. The concerned police officer is expected to comply with the
directions issued by the learned Magistrate and to complete the
limited investigation expeditiously, and to submit a comprehensive
report before the learned Magistrate on the date already fixed or
any subsequent date as may be assigned.
4.16. In view of the foregoing discussion, this Court is of the
considered opinion that the impugned order does not suffer from
any infirmity warranting interference.
5. Accordingly, the Misc. Petition, being devoid of substance, is
hereby dismissed. The stay petition as well as all pending
applications stand disposed of.
(FARJAND ALI),J
37-Mamta/-
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