Prospective Accused Has No Right to Stall Investigation Before Cognizance – FIR Direction Cannot Be Challenged Under Section 528 BNSS: Allahabad High Court

“Until Cognizance is Taken, Suspect Remains a Stranger to Judicial Process” –  In a significant reaffirmation of criminal procedural law under the Bharatiya Nagarik Suraksha Sanhita, 2023, the Allahabad High Court held that a prospective accused cannot challenge an order passed by a Magistrate directing the registration of an FIR and investigation under Section 173(4) read with Section 175(3) of BNSS, before cognizance is taken or process is issued.

Justice Dinesh Pathak, speaking for the Court, dismissed an application filed under Section 528 BNSS by three senior bank officials, accused of criminal conspiracy, forgery, and offences under the SC/ST Act, who sought to quash the Magistrate’s order for investigation.

"The present applicants, who are the prospective accused, have no locus standi to assail the direction for investigation under Section 173(4) read with 175(3) BNSS before the summoning or cognizance stage,” held the Court, while affirming that the Magistrate had complied with all procedural safeguards under the new Code.

“Judicial Process Begins After Cognizance – Accused Has No Role in Pre-Investigation Stage”: Court Rejects Challenge to FIR by Suspected Bank Officers

The case arose from a complaint filed by Veerendra Singh, a retired Scheduled Caste community bank manager, who alleged that certain bank officers forged and fabricated documents in order to falsely implicate and defame him. The Magistrate, after evaluating the material—including affidavits, witness statements, and police reports—found a prima facie case of cognizable offences including conspiracy, forgery, and defamation, and directed the registration of an FIR and investigation.

This direction, issued on 5th July 2025, was challenged by the accused—Kamlesh Meena and two others—who argued that no offence was made out, and the Magistrate had not applied his judicial mind in issuing the order.

But the Court disagreed.

“There is neither any abuse of process of court nor any ground made out to pass an order to interfere with the complaint under Section 173(4) for securing the ends of justice,” Justice Pathak held.

“Full Bench in Father Thomas Binding – Prospective Accused Has No Locus Until Process is Issued”: Magistrate’s FIR Order Not Open to Interference

Referring to the Full Bench decision in Father Thomas v. State of U.P., 2011 (1) ADJ 333 (FB), the Court reiterated that a suspect in a criminal case has no right to be heard at the stage when a Magistrate is merely deciding whether to direct the police to investigate:

“In the light of the aforesaid discussion, it is abundantly clear that the prospective accused has no locus standi to challenge a direction for investigation of a cognizable case under Section 156(3) CrPC before cognizance or issuance of process against the accused.”

This legal position, the Court emphasized, continues to apply even under the recast procedural framework of the BNSS, and must be followed by all courts.

“BNSS Introduces Procedural Safeguards, But Does Not Create Pre-Cognizance Hearing Rights for Accused”: Court Affirms Proper Compliance by Magistrate

The Court noted that the Bharatiya Nagarik Suraksha Sanhita, 2023 brings in specific procedural steps before a Magistrate may direct investigation under Section 175(3), corresponding to the old Section 156(3) CrPC, including:

• Prior application to the police and Superintendent of Police under Section 173(1) and (4)

• Mandatory affidavit supporting the application to the Magistrate

• Power of Magistrate to conduct preliminary inquiry

• Consultation with the police and submission of reports

But the Court clarified that these safeguards do not translate into a right for the suspect to challenge the FIR direction, as long as the process is pre-cognizance.

“The learned Magistrate, in exercise of his discretionary power under Section 175(3) BNSS, has conducted an inquiry... and expressed his view that prima facie cognizable offence appears to have been committed,” the Court recorded, holding the order to be legally valid and procedurally sound.

“Om Prakash Ambadkar Case Cannot Be Stretched to Create Rights for the Accused at Pre-Cognizance Stage”: Supreme Court Ruling Distinguished

The applicants heavily relied on the Supreme Court’s decision in Om Prakash Ambadkar v. State of Maharashtra (Criminal Appeal No. 352 of 2020, decided on 16 January 2025), where an order under Section 156(3) CrPC was quashed due to lack of application of mind by the Magistrate.

However, the High Court distinguished that ruling:

“Locus standi of the prospective accused to assail the order for registration of the F.I.R. and investigation was neither in question nor discussed by the Hon’ble Apex Court in the case of Om Prakash Ambadkar.”

It emphasized that Ambadkar did not deal with the right of an accused to challenge an FIR direction, but with whether the Magistrate had properly evaluated the complaint. That was not the case here.

“Accused Cannot Block Investigation Based on Departmental Proceedings Against Complainant”: Criminal Allegations Must Be Investigated Independently

The applicants also argued that the complaint was a malicious counterblast to departmental proceedings initiated against the complainant.

But the Court rejected this defence, reiterating the principle laid down by the Supreme Court in Lalita Kumari v. State of U.P., (2014) 2 SCC 1:

“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... At the stage of registration of F.I.R., what is to be seen is merely whether the information given ex facie discloses the commission of a cognizable offence.”

“Judicial Mind Was Applied, Procedural Steps Were Taken, and Prima Facie Offence Was Found – No Ground to Interfere”: Application Dismissed

The Court recorded that the Magistrate had:

• Received and considered affidavits, including one from the complainant

• Issued notice to the General Manager of the Bank, who responded with a denial

• Examined the police reply confirming that no FIR had yet been lodged

• Considered documentary evidence and gave reasons for why investigation was required

“In this conspectus... it would be difficult to infer that the order has been passed in a perfunctory or mechanical manner without application of mind,” the Court held.

Concluding, the Court dismissed the application with the clear observation:

“Resultantly, instant application at the behest of the prospective accused, the person who is suspected to have committed the crime, is dismissed as not maintainable.” [Para 22]

Date of Decision: 25 July 2025