Proposed Accused Has No Right To Prior Hearing Before Writ Court Directs Registration Of FIR; Sec 175(4) BNSS Safeguard Inapplicable To Article 226: Madras High Court

"Succinctly put, a direction to register an FIR is not a finding against anyone. It only starts the process of investigation, and it is during that investigation, and at trial if matters go that far, that the review applicant will have every opportunity to place his version and test the case against him." Madras High Court, in a significant ruling delivered on October 26, 2026, held that a proposed accused possesses no vested or statutory right to a prior hearing before a constitutional writ court directs the registration of a First Information Report (FIR) and an investigation into cognizable offences.

A Division Bench comprising Chief Justice Sushrut Arvind Dharmadhikari and Justice G. Arul Murugan observed that "a direction to register a case and investigate is, by its very character, a preliminary step" which settles nobody's guilt, while clarifying that statutory safeguards mandating prior hearing under Section 175(4) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) apply exclusively to Magistrates and cannot constrain High Courts exercising writ jurisdiction under Article 226 of the Constitution of India.

The dispute originated from allegations of corruption and rigging in the recruitment process for 2,538 posts in the Municipal Administration and Water Supply Department, uncovered during search operations conducted by the Enforcement Directorate (ED) and subsequently shared with State authorities under Section 66(2) of the Prevention of Money Laundering Act, 2002 (PMLA). When the State authorities failed to act, Rajya Sabha Member of Parliament I.S. Inbadurai approached the High Court in a writ petition, leading to a Division Bench order dated February 20, 2026, directing the Directorate of Vigilance and Anti-Corruption (DVAC) to forthwith register an FIR and conduct an expeditious investigation. Aggrieved by this direction, the State of Tamil Nadu and the concerned Department Minister, K.N. Nehru, preferred review petitions, while Inbadurai instituted contempt proceedings alleging willful non-compliance.

The primary questions before the court were whether a review petition seeking recall of an order directing the registration of an FIR in a criminal writ petition is maintainable under Order 47 Rule 1 CPC read with the Madras High Court Writ Rules, 2021, notwithstanding the statutory bar under Section 362 CrPC and Section 403 BNSS. The court was further called upon to determine whether a proposed accused is entitled to prior notice and hearing before a writ court directs an FIR, and whether the protective pre-investigation enquiry mechanism under Section 175(4) BNSS binds constitutional courts under Article 226.

Section 362 CrPC Bar Inapplicable To Constitutional Writ Review Under Order 47 Rule 1 CPC

At the threshold, the High Court rejected the preliminary objection raised by the State and the original writ petitioner that review was impermissible because the proceedings were criminal in nature. The Bench held that the order under review was not rendered by a criminal court exercising statutory powers under the Code of Criminal Procedure, 1973 or BNSS, but by a constitutional court exercising powers under Article 226 of the Constitution of India.

The court noted that petitions carrying the nomenclature "W.P.(Crl.)" are titled so purely due to Rule 3(7) of the Madras High Court Writ Rules, 2021, and that Rule 1(4) makes the rules uniformly applicable to all writ petitions without drawing distinctions based on civil or criminal subject matter. Emphasising that Rule 29(1) of the Writ Rules explicitly provides that the High Court may review its orders on the grounds recognized under Order 47 Rule 1 CPC, the Bench held that statutory bars governing ordinary criminal courts cannot curb constitutional writ jurisdiction.

"Section 362 Cr.P.C. and Section 403 BNSS bar a criminal court, viz., a Court exercising jurisdiction under that Cr.P.C, from reviewing or altering its own judgment; neither provision purports to, nor could it, cut down the review contemplated by this Court's own Rules in the exercise of its writ jurisdiction, a jurisdiction the Cr.P.C. does not create and cannot curtail."

No Right Of Hearing Accrues To Proposed Accused At Pre-Investigation Stage

Addressing the Minister's grievance regarding the denial of an opportunity to be heard before the direction to register an FIR was issued, the Bench held that the rule of audi alteram partem does not apply to a person who is merely a proposed accused or likely to be investigated. Drawing authoritative support from the Supreme Court's decisions in Union of India v. W.N. Chadha and E. Sivakumar v. Union of India, the court affirmed that the accused has no locus to participate in proceedings that merely set the criminal law into motion.

The court emphasized that compelling prior notice before an FIR is lodged would defeat the very purpose of criminal investigation by alerting potential offenders and enabling tampering with evidence. It was further observed that the writ court made no judicial determination regarding anyone's culpability, having merely recorded the prima facie material transmitted by a statutory agency.

"The question is not whether audi alteram partem is implicit, but whether the occasion for its attraction exists at all... A direction to register a case and investigate is, by its very character, a preliminary step. It settles nobody's guilt, and it need not await the version of every person who might eventually come to be investigated."

The Bench also noted that although notice had been dispatched on February 2, 2026, and received by the Minister on February 4, 2026, no application was moved to reopen the matter or place objections on record prior to the pronouncement of judgment on February 20, 2026. A litigant who sits back and observes proceedings cannot subsequently plead prejudice or violation of natural justice once the outcome is unfavourable.

Section 175(4) BNSS Inapplicable To Article 226 Powers Of High Court

The court specifically rejected the reliance placed on the Supreme Court's ruling in XXX v. State of Kerala regarding Section 175(4) of the BNSS, which requires a Magistrate to call for a report from a superior officer and consider a public servant's version before ordering an investigation under Section 175(3) BNSS. The Bench clarified that this provision constitutes a specialized statutory procedure governing lower magistracy and cannot circumscribe the High Court's plenary writ powers under Article 226.

The Bench underscored that Section 175(4) BNSS cannot be inflated into a general, overarching right of pre-decisional hearing extending to every proceeding that may culminate in a criminal investigation. Consequently, when a High Court acts on credible material forwarded by a statutory agency like the Enforcement Directorate demonstrating a cognizable offence, it remains free to direct registration of an FIR without invoking the preliminary filtration mechanism designed for Magistrates.

"That is a specific safeguard built into a specific statutory procedure. It is not, in our view, a general right of pre-decisional hearing attaching itself to every proceeding, of whatever kind, that might in due course lead to a police investigation, and we do not think it applies to a writ court acting on information already forwarded by a statutory agency showing, prima facie, a cognizable offence."

State Entitled To Withdraw Review Petition To Ensure Compliance With Law

Addressing the objection that the State could not withdraw its review petition following a change in political administration, the court held that the principle barring approbate and reprobate does not preclude the State from relinquishing an untenable legal challenge. Relying on A.P. Dairy Development Corpn. Federation v. B. Narasimha Reddy, State of T.N. v. K. Shyam Sunder, and Kedar Nath Yadav v. State of W.B., the Bench ruled that the State is not estopped from departing from an earlier stand if persisting with it would perpetuate an illegality or undermine the rule of law.

The court observed that withdrawing an objection to comply with a judicial direction to register an FIR upholds the administration of justice. Since the State confirmed that an FIR had already been registered and that investigation was underway, the review petition by the State was permitted to be withdrawn, rendering the contempt petition infructuous.

The Madras High Court dismissed the Minister's review petition while allowing the State to withdraw its review, and subsequently closed the contempt proceedings in view of the registration of the FIR and the undertaking to investigate without delay. The decision cements the legal proposition that while review of orders passed under Article 226 in criminal writ petitions is legally maintainable under Order 47 Rule 1 CPC, a proposed accused has no legal standing to demand a pre-investigation hearing, nor does Section 175(4) BNSS curtail the High Court's extraordinary writ powers.

Date of Decision: October 26, 2026