Deepak Joshi vs State Of Rajasthan (2026:Rj-Jd:5634) on 29 January, 2026

[2026:RJ-JD:5634]

      HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                       JODHPUR
               S.B. Criminal Misc(Pet.) No. 10223/2025

Deepak Joshi S/o Gopi Lal, Aged About 41 Years, R/o Badi Josiyo
Ki Bhagal, Tehsil Gogunda, Distt. Udaipur.
                                                                      ----Petitioner
                                      Versus
1.       State Of Rajasthan, Through Pp
2.       The Station House Officer, The Station House Officer Of
         Police Station Gogunda, District Udaipur.
3.       Ashok Joshi S/o Prem Shankar Joshi, R/o Chhoti Joshiyo
         Ki Bhagal, Jaswantgarh, Tehsil Gogunda, District Udaipur.
                                                                   ----Respondents


For Petitioner(s)             :    Mr. Vivek Agarwal
For Respondent(s)             :    Mr. Vikram Singh Rajpurohit, PP



              HON'BLE MR. JUSTICE SANDEEP SHAH

Order

29/01/2026

1. The present criminal miscellaneous petition has been filed

under Section 528 of BNSS by the petitioner with the following

prayer: -

"It is, therefore, most respectfully prayed on behalf of petitioners that this Cr. Misc. petition may kindly be allowed and the observation made by Respondent No.02 - Station House Officer of Police Station Gogunda, District Udaipur by Observation dated 07.10.2025 may kindly be quashed and set aside and he may be directed to register the FIR and make the investigation accordingly."

2. Brief facts of the case are that on 23.09.2025, petitioner filed

a complaint against respondent No.3 before the learned

Magistrate, Gogunda, District Udaipur, wherein, it was alleged that

he received life threats from the respondent No.3 and messages

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using abusive languages via Instagram. The learned Magistrate

under Section 175(3) of BNSS forwarded petitioner's complainant

to the SHO, Gogunda for investigation vide order dated

25.09.2025. Thereafter, the SHO, Gogunda submitted a report

observing that no case to proceed with investigation was made out

as no cognizable offences are made out in the complaint. The said

report of the SHO, Gogunda read as under:

"दिनां क: 07.10.2025 समय:-- 01.15 पीएम यह टाइपशुदा इस्तगाशा माननीय न्यायालय से अन्तर्गत धारा 175(3) बीएनएसएस में प्रार्थी श्री दीपक जोशी पुत्र श्री गोपी लाल जोशी जाति ब्राह्मण उम्र बालिग निवासी बड़ी जोशियों को भागल गोगुन्दा का जरिये डाक प्राप्त हुआ।

मजमून रिपोर्ट से मामला अपराध धारा 351 (2)(3) बीएनएस व आई.टी. एक्ट का टाइप हो प्राप्त हुआ मजमून धारा असंज्ञेय होने से प्रकरण दर्ज करना विधि सम्मत नहीं होने से एवं आई.टी. एक्ट को प्रथम दृष्टया कोई धारा नहीं होने से इस्तगाशा वास्ते उचित आदे शार्थ माननीय न्यायालय के समक्ष उचित आदे शार्थ पेश है । "

3. Learned counsel for the petitioner submits that pursuant to

an order dated 25.09.2025 passed by the learned Magistrate

under Section 175(3) BNSS, the police after receiving the

complaint without any investigation submitted the report stating

therein that since offences under Sections 351(2) and 351(3) of

the BNS, 2023 are non-cognizabale and prima facie no specific

offences under the IT Act is mentioned in the complaint, thus, the

complaint cannot be registered.

4. The learned counsel for the petitioner further submits that

the respondent No.3, who is influential person, has given life

threats to the petitioner and sent messages to the petitioner using

abusive languages with dire consequences via Instagram. He

further submits that the manner in which the SHO, Gogunda acted

is against the law, as it was his duty to comply with the order

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passed by the learned Magistrate to investigate the matter and

should not have denied to proceed further only for a reason that

no cognizable offences were made out and no offences under the

IT Act were specified in complaint.

5. Learned counsel for the State submits that the action of the

SHO, Gogunda is well within the law for not proceeding further

since no cognizable offences were made out and no offence under

IT Act was specified in complaint.

6. Heard learned counsel for the petitioner and the public

prosecutor as well as perused the material available on the record.

Considering the submissions made, it is pertinent to note that

Section 175(3) BNSS empowers a Magistrate, to order police

investigation only in cases where a cognizable offense is disclosed.

Sections 351(2) and 351(3) of the BNS are classified as non-

cognizable under the BNSS Schedule, but the offences under IT

Act (though was not specified in the complaint) are mostly

cognizable.

7. Hon'ble Supreme Court in "Lalita Kumari vs Govt. of U.P.

& Ors", reported in 2014 (2) SCC 1, has held that registration

of an FIR is mandatory if the information discloses cognizable

offence and no preliminary inquiry is permissible in such a

situation, however, where information received does not disclose a

cognizable offence, then a preliminary inquiry may be conducted

to ascertain whether cognizable offence is disclosed or not.

Hon'ble Supreme Court in Lalita Kumari (supra) also discussed and

held that the scope of preliminary inquiry is not to verify the

veracity or otherwise the information received but only to

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ascertain whether the information reveals any cognizable offence.

The relevant paragraphs of the judgement read as under: -

"119. Therefore, in view of various counter claims regarding registration or non-registration, what is necessary is only that the information given to the police must disclose the commission of a cognizable offence. In such a situation, registration of an FIR is mandatory. However, if no cognizable offence is made out in the information given, then the FIR need not be registered immediately and perhaps the police can conduct a sort of preliminary verification or inquiry for the limited purpose of ascertaining as to whether a cognizable offence has been committed. But, if the information given clearly mentions the commission of a cognizable offence, there is no other option but to register an FIR forthwith. Other considerations are not relevant at the stage of registration of FIR, such as, whether the information is falsely given, whether the information is genuine, whether the information is credible etc. These are the issues that have to be verified during the investigation of the FIR. At the stage of registration of FIR, what is to be seen is merely whether the information given ex facie discloses the commission of a cognizable offence. If, after investigation, the information given is found to be false, there is always an option to prosecute the complainant for filing a false FIR.

Conclusion/Directions:

120. In view of the aforesaid discussion, we hold: 120.1. Registration of FIR is mandatory under Section 154 of the Code, if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation.

120.2. 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. 120.3. If the inquiry discloses the commission of a cognizable offence, the FIR must be registered. In cases where preliminary inquiry ends in closing the complaint, a copy of the entry of such closure must be supplied to the first informant forthwith and not later than one week. It must disclose reasons in brief for closing the complaint and not proceeding further.

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120.4. The police officer cannot avoid his duty of registering offence if cognizable offence is disclosed. Action must be taken against erring officers who do not register the FIR if information received by him discloses a cognizable offence. 120.5. The scope of preliminary inquiry is not to verify the veracity or otherwise of the information received but only to ascertain whether the information reveals any cognizable offence.

120.6. As to what type and in which cases preliminary inquiry is to be conducted will depend on the facts and circumstances of each case. The category of cases in which preliminary inquiry may be made are as under:

a) Matrimonial disputes/ family disputes

b) Commercial offences

c) Medical negligence cases

d) Corruption cases

e) Cases where there is abnormal delay/laches in initiating criminal prosecution, for example, over 3 months delay in reporting the matter without satisfactorily explaining the reasons for delay. The aforesaid are only illustrations and not exhaustive of all conditions which may warrant preliminary inquiry.

120.7. While ensuring and protecting the rights of the accused and the complainant, a preliminary inquiry should be made time bound and in any case it should not exceed 7 days. The fact of such delay and the causes of it must be reflected in the General Diary entry.

120.8. Since the General Diary/Station Diary/Daily Diary is the record of all information received in a police station, we direct that all information relating to cognizable offences, whether resulting in registration of FIR or leading to an inquiry, must be mandatorily and meticulously reflected in the said Diary and the decision to conduct a preliminary inquiry must also be reflected, as mentioned above.

121. With the above directions, we dispose of the reference made to us. List all the matters before the appropriate Bench

for disposal on merits."

8. As per the guidelines of Lalita Kumari (supra), the police

authority should have conducted preliminary inquiry to check

which of the offences under the IT Act are made out as per the

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allegations and whether they are classified as cognizable offences

or not. The report of the SHO Gogunda submitted before the

learned Magistrate, pursuant to the order dated 25.09.2025,

without making any efforts to conduct preliminary inquiry to check

which offences under IT Act are made out, is in violation of the