Prashant Kaushik vs State Of Rajasthan
2026 Latest Caselaw 5234 Raj

Rajasthan High Court - Jodhpur

Prashant Kaushik vs State Of Rajasthan on 7 April, 2026

Author: Farjand Ali

Bench: Farjand Ali

[2026:RJ-JD:14705]

      HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                       JODHPUR
              S.B. Criminal Revision Petition No. 47/2026

1.       Prashant Kaushik S/o Shri Chandra Dev Sharma, Aged
         About 52 Years, Resident Of 4/viii, J.n.b. Nagar, Bikaner
         At Rpesent Deputy Superintendent Of Police, Anupgarh,
         District Sri Ganganagar Rajasthan.
2.       Manohar Singh S/o Shri Bhanwar Singh, Aged About 46
         Years, R/o Sameja Kothi Ps Sameja Kothi At Present
         Assistant Sub Inspector Circle Office Anoopgarh District
         Sri Ganganagar Raj.
3.       Sardar Singh S/o Shri Chothu Ram, Aged About 53 Years,
         R/o Gokul Ka Baas Ps Khandela District Sikar At Present
         Sub Inspector Sameja Kothi District Sri Ganganagar Raj.
4.       Kishan Singh S/o Late Shri Ishwar Singh, Aged About 40
         Years, R/o Village Post Binjasi Via Sighet Badi Tehsil Dhod
         District Sikar At Present Driver Ps Anoopgarh District Sri
         Ganganagar Raj.
                                                                   ----Petitioners
                                    Versus
1.       State Of Rajasthan, Through Pp
2.       Tek Chand S/o Shri Doonger Ram, R/o Wad No. 33
         Anoopgarh District Sri Ganganagar Raj.
                                                                 ----Respondents


For Petitioner(s)         :     Mr.Anand Purohit,Sr. Adv.

                                Assisted by Mr. D.S. Thind

                                Ms. Sonika

                                Mr. Mayank Roy
For Respondent(s)         :     Mr. N.S. Chandawat,Dy.G.A.

                                Mr.Shrawan Choudhary

                                Mr. Bhom Singh



                HON'BLE MR. JUSTICE FARJAND ALI

Order

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Reportable-

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                           :                      07/04/2026


By the Court-


      Grievance of the Case :

1. By way of filing the instant revision petition, the petitioners

have assailed the legality and propriety of the order dated

21.11.2025 passed by learned Special Judge, SC/ST

(Prevention of Atrocities) Act Cases, Sri Ganganagar, in a

criminal complaint titled "Tek Chand v. Prashant Kaushik &

Ors.", whereby the learned court has directed the

Superintendent of Police, Sri Ganganagar, under Section

175(3) of the BNSS, 2023, to register an FIR against the

present petitioners. The said impugned order is challenged

as being contrary to law, passed without due application of

judicial mind, and in excess of jurisdiction, thereby causing

serious prejudice to the petitioners.

Facts of the Case

2. The facts, in brief, necessary for adjudication of the present

revision petition are that the learned Special Judge, SC/ST

(Prevention of Atrocities) Act Cases, Sri Ganganagar, vide

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order dated 21.11.2025, forwarded a private complaint filed

by the respondent-complainant Tek Chand to the

Superintendent of Police, Sri Ganganagar, under Section

175(3) of the BNSS, 2023, with a direction to register an FIR

against the present petitioners, who are government

employees. The said order is alleged to have been passed

without following due process of law and without recording

reasons, thus being a non-speaking order.

3. Prior to the filing of the said complaint, an FIR bearing No.

500/2025 dated 20.08.2025 was registered at Police Station

Anupgarh, District Sri Ganganagar, on the complaint of

Sanjay Kumar against Tek Chand (present respondent) and

others for offences under Sections 115(2), 126(2), 3(5) of

the BNS, 2023, along with Sections 3(1)(r), 3(1)(s) and 3(2)

(va) of the SC/ST Act, 1989 (as amended in 2015). Upon

completion of investigation, the investigating agency

submitted a charge-sheet dated 21.10.2025 against Tek

Chand and other accused persons before the competent

court. It is further borne out from the record that Tek Chand,

in turn, lodged FIR No. 587/2025 dated 25.09.2025 at the

same police station against Sanjay Kumar and others for

offences under Sections 115(2), 307, 190, 191(2) and

191(3) of the BNS, 2023. However, after a thorough

investigation, the Investigating Officer submitted a negative

final report dated 25.11.2025, observing that the said FIR

appeared to have been lodged with an oblique motive to

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exert undue pressure in retaliation to the earlier FIR

No.500/2025. Subsequently, the respondent-complainant Tek

Chand filed a criminal complaint dated 01.11.2025 before

the Special Court under Section 175(3) of the BNSS, 2023,

alleging various offences under the BNS and the SC/ST Act

against the present petitioners, primarily on the ground of

alleged irregularities in the investigation of FIR No. 587/2025

and inaction on a prior complaint submitted to the Director

General of Police (Vigilance), Jaipur. Acting upon the said

complaint, the learned Special Judge, without complying with

the mandatory requirements of Section 175(4) of the BNSS,

passed the impugned order dated 21.11.2025 directing

registration of an FIR. Aggrieved thereby, the petitioners

have preferred the present revision petition.

4. Heard learned counsels present for the parties and gone

through the materials available on record.

5. Upon hearing learned counsel for the parties and upon a

careful perusal of the material available on record, this Court

proceeds to examine the legality, propriety and sustainability

of the impugned order dated 21.11.2025 passed by the

learned Special Judge, SC/ST (Prevention of Atrocities) Act

Cases, Sri Ganganagar.

6. At the outset, it is apposite to note that the impugned order

has been passed on a private complaint filed by the

respondent-complainant invoking Section 175(3) of the

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BNSS, 2023, whereby a direction has been issued to the

Superintendent of Police for registration of an FIR against the

present petitioners, who undisputedly are public servants.

7. Upon a holistic and contextual appreciation of the complaint,

this Court finds that the predominant allegations levelled

against the petitioners substantially emanate from and are

intrinsically connected with the discharge of their official

duties, particularly in relation to the investigation of FIR No.

587/2025 and the consequential procedural actions

undertaken therein. Although, in addition to such allegations,

the complainant has also averred instances of abuse, use of

force, and assault, it cannot be overlooked that such

allegations, in the given factual matrix, do not exist in

isolation but arise in the backdrop of pre-existing criminal

litigation and cross-FIRs between the parties. The

respondent-complainant himself stands arraigned as an

accused in FIR No. 500/2025, and his own FIR No. 587/2025

has already culminated in a negative final report with

observations indicative of a retaliatory intent. In such

circumstances, allegations of abuse, assault, or use of force

against police officials, particularly when made in the course

of or in proximity to investigative proceedings, become

highly disputed questions of fact, which are susceptible to

being easily alleged and cannot be mechanically accepted at

face value without preliminary judicial scrutiny. Even

otherwise, the determination as to whether such alleged acts

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fall within or outside the ambit of official duty is itself a

nuanced and debatable issue, dependent upon evidence and

surrounding circumstances. Therefore, in view of the

intertwined nature of allegations and the surrounding factual

complexities, it becomes imperative to adopt a cautious and

balanced approach, ensuring that while the grievance of the

complainant is not prematurely discarded, adequate

protection is also afforded to public servants against

vexatious or retaliatory prosecution. In such a scenario, the

safer and legally sound course would be to afford an

opportunity of hearing to the concerned public servants and

to examine the matter in light of the statutory safeguards,

rather than proceeding in a mechanical manner.

8. It is precisely in such complex and overlapping factual

scenarios that the legislative intent underlying Section 223 of

the BNSS assumes critical significance. For the ease of

reference, Section 223 of BNSS is reproduced herein below:-

223. Examination of complainant (1) A Magistrate having jurisdiction while taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate:

Provided that no cognizance of an offence shall be taken by the Magistrate without giving the accused an opportunity of being heard: Provided further that when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses--

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(a) if a public servant acting or purporting to act in the discharge of his official duties or a Court has made the complaint; or

(b) if the Magistrate makes over the case for inquiry or trial to another Magistrate under section 212:

Provided also that if the Magistrate makes over the case to another Magistrate under section 212 after examining the complainant and the witnesses, the latter Magistrate need not re-examine them. (2) A Magistrate shall not take cognizance on a complaint against a public servant for any offence alleged to have been committed in course of the discharge of his official functions or duties unless--

(a) such public servant is given an opportunity to make assertions as to the situation that led to the incident so alleged; and

(b) a report containing facts and circumstances of the incident from the officer superior to such public servant is received.

9. The said provision marks a conscious and substantive

departure from the earlier regime by introducing a safeguard

at the pre-cognizance stage. The scheme of Section 223

BNSS clearly envisages that the process of taking cognizance

is no longer an instantaneous act but a calibrated judicial

exercise, wherein the Magistrate is required to apply his

mind in a structured and informed manner. The use of the

expression "while taking cognizance" signifies the existence

of an intermediate stage, during which the Court is

empowered and in certain cases obligated to afford an

opportunity of hearing to the proposed accused.

10.More importantly, sub-section (2) of Section 223 specifically

mandates that where the complaint is directed against a

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public servant for acts purportedly committed in discharge of

official duties, the Magistrate shall not proceed to take

cognizance unless two essential conditions are satisfied:

• firstly, the public servant must be afforded an opportunity to

explain the circumstances leading to the alleged incident; and

• secondly, a report containing the factual matrix must be

obtained from the superior officer.

11.This statutory requirement is not an empty formality but a

substantive safeguard intended to protect public servants

from frivolous, retaliatory, or vexatious prosecutions arising

out of their official functions.

12.The object of incorporating such a provision is to strike a

delicate balance between the right of a complainant to seek

redressal and the necessity to shield public servants from

undue harassment for bona fide acts performed in discharge

of duty. The provision acts as a judicial filter, a protective

sieve, to ensure that criminal law is not set into motion

mechanically or as a tool of vendetta, particularly in cases

where allegations stem from official actions. It ensures that

before the coercive machinery of criminal law is activated,

the Magistrate is equipped with a more complete and

balanced perspective, having considered the version of the

proposed accused and the administrative context in which

the alleged acts occurred.

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13.In the present case, this Court finds that the learned Special

Judge has, while exercising powers under Section 175(3) of

the BNSS, failed to advert to or comply with the mandatory

requirements engrafted under Section 223 of the BNSS. It is

no doubt true, as a settled position of law, that when a

Magistrate directs registration of an FIR and investigation

under Section 175(3), he does not, strictly speaking, take

cognizance of the offence at that stage. However, such a

proposition cannot be construed to mean that the power

under Section 175(3) is to be exercised in a casual,

mechanical, or routine manner. The very act of examining a

complaint, appreciating its averments, and forming an

opinion as to whether the matter warrants invocation of

police machinery or requires further judicial scrutiny

necessarily postulates application of judicial mind. Once the

Magistrate embarks upon such evaluative exercise and

reaches a stage where he considers whether an inquiry

ought to be undertaken on the complaint, it reflects an

incipient application of mind akin to the stage "while taking

cognizance" as contemplated under Section 223 of the BNSS.

The expression "while taking cognizance" employed in

Section 223 is of wide amplitude and signifies not merely the

final act of cognizance, but also the preparatory stage where

the Magistrate is required to judiciously assess the complaint

before proceeding further. Therefore, even if in the strict

technical sense cognizance is not said to have been taken,

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the statutory safeguards embedded under Section 223,

particularly in cases involving public servants, cannot be

rendered otiose by resorting to Section 175(3) in a routine

manner. The Magistrate, in such circumstances, was under a

legal obligation to examine the nature of allegations with

greater circumspection and to consider whether the

complaint necessitated adherence to the protective

framework envisaged under Section 223(2), including

affording an opportunity of hearing to the concerned public

servants before setting the criminal law into motion.

14.Furthermore, the impugned order does not reflect any

application of judicial mind to the peculiar facts and

circumstances of the case, particularly the existence of prior

FIRs, the negative final report, and the apparent retaliatory

nature of the complaint. The order, being non-speaking and

mechanical, fails to demonstrate the satisfaction required for

invoking powers under Section 175(3) of the BNSS. It is

evident that the learned Magistrate has proceeded with a

closed or uncritical approach, without meaningfully engaging

with the contents of the complaint. A bare perusal of the

complaint would have revealed that the allegations are

directed against public servants in relation to acts

purportedly performed in discharge of their official duties,

thereby attracting the rigours of Section 223(2) of the BNSS.

In such a situation, the Magistrate ought to have, before

directing registration of an FIR, at least considered whether

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it was necessary to call for a response from the concerned

public servants and to obtain a report from their superior

officer, as statutorily mandated. The failure to undertake

such an exercise indicates that the power under Section

175(3) has been invoked in a perfunctory manner, without

due regard to the legislative safeguards designed to prevent

misuse of criminal process against public officials. The law

does not countenance a blind or mechanical forwarding of

complaints for registration of FIR; rather, it obligates the

Magistrate to read, analyse, and scrutinize the complaint

with care, and upon such scrutiny, to form an informed

opinion as to whether the case falls within the domain of

Section 175(3) or calls for recourse to the procedure under

Section 223. In the present case, such essential judicial

exercise having been conspicuously absent, the impugned

order stands vitiated for non-application of mind and for

failure to adhere to the statutory mandate.

15.In view of the above, this Court is of the considered opinion

that the direction issued for registration of FIR against the

petitioners, without adhering to the statutory safeguards and

without proper judicial consideration, cannot be sustained in

the eyes of law. At the same time, this Court deems it

appropriate not to foreclose the remedy of the complainant,

but to ensure that the matter is examined afresh in

accordance with the procedure established by law.

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16.Accordingly, the impugned order dated 21.11.2025 is hereby

set aside. All consequential proceedings undertaken pursuant

thereto are also quashed.

17.In consequence of the foregoing analysis and the legal

infirmities noticed in the impugned order, the matter is

deemed fit to be remanded back to the learned court below

for fresh adjudication. The remand is necessitated to ensure

that the complaint is examined in its proper legal

perspective, in conformity with the statutory framework

governing the field. The learned court below is, therefore,

directed to reconsider the complaint de novo, by undertaking

a comprehensive and independent evaluation of the

allegations, the material available on record, and the

surrounding factual matrix, strictly in accordance with law.

18.Having regard to the peculiar facts of the present case, it is

evident that the allegations levelled in the complaint are

predominantly rooted in and arise out of the earlier FIRs

between the parties, particularly concerning the manner of

investigation, alleged procedural irregularities, deliberate

distortion of facts, and purported misuse or mishandling of

authority by the concerned police officials. Such allegations

are not independent or isolated in nature, but are

inextricably interwoven with the earlier investigative process

and the attendant circumstances. In such a situation, it

would be neither prudent nor legally sustainable to proceed

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in a mechanical manner; rather, the appropriate course

would be to first undertake a preliminary inquiry so as to

ascertain the veracity, context, and substance of the

allegations made.

19.During the course of such inquiry, it shall be incumbent upon

the learned Magistrate to strictly adhere to the statutory

mandate embodied under Section 223 of the BNSS, 2023. In

particular, since the allegations are directed against public

servants in respect of acts purportedly done in discharge of

their official duties, an effective and meaningful opportunity

of hearing must necessarily be afforded to them at this stage

itself, and such opportunity shall not be treated as a mere

formality but as a substantive safeguard. The learned

Magistrate shall also ensure that any report from the

competent superior authority, as contemplated under law, is

duly called for and considered in its proper perspective.

20.Only upon completion of such inquiry, and after duly

considering the explanation of the concerned public servants

along with the material available on record, including any

report obtained in terms of Section 223, shall the learned

Magistrate proceed to take a reasoned decision. The entire

exercise shall culminate in a well-reasoned and speaking

order, reflecting due application of judicial mind to all

relevant aspects, including the background of prior FIRs, the

nature of allegations, the outcome of earlier investigations,

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and the explanations furnished by the concerned officials.

Depending upon the outcome of such inquiry and evaluation,

the learned court shall then be at liberty either to dismiss the

complaint in accordance with law or to proceed further by

taking cognizance and issuing process, as the case may

warrant.

21.The revision petition stands disposed of in the above terms.

22.All pending applications are also disposed of.

(FARJAND ALI),J 191-mamta/-

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