Section 175(3) BNSS Empowers Magistrate to Direct FIR Without Hearing the Accused: Madras High Court

“No Right to Be Heard Before FIR Registration Based on Private Complaint Under BNSS …..When Prima Facie Material Exists, Magistrate Need Not Invite Accused Before Directing FIR; Anticipatory Bail Conditions Must Be Honoured in Letter and Spirit” –  In a significant judgment concerning the procedural scope of Section 175(3) of the Bharatiya Nyaya Sanhita, 2023, the Madras High Court dismissed a Criminal Revision Petition filed by the first accused challenging the direction of the Judicial Magistrate-II, Alandur to register an FIR based on a private complaint alleging cheating of ₹63 lakhs via RTGS transfers.

Justice T.V. Thamilselvi upheld the lower court’s directive, stating that pre-cognizance hearing of the accused is not required when the Magistrate finds sufficient prima facie material to direct registration of an FIR. The court also cancelled the anticipatory bail granted earlier to the second accused due to breach of conditions and misuse of court orders.

“Section 175(3) BNSS Empowers Magistrate to Direct FIR Without Hearing the Accused”

The petitioner, Shantharam Baskar Devar, had challenged the Magistrate’s order dated 12.02.2025 (incorrectly recorded as 24.02.2025) under Section 175(3) BNSS, arguing that he ought to have been heard before any such directive was issued. He invoked Section 223 BNSS, contending that the directive violated procedural fairness.

However, the High Court rejected this submission, holding:

“The trial judge has found that there is prima facie material to take cognizance of the offence and accordingly directed registration of FIR… opportunity to the accused arises only after investigation, not at the pre-registration stage.” [Para 5]

It was reiterated that Magistrate’s power under Section 175(3) BNSS is limited to examining whether the allegations disclose a cognizable offence. At that stage, the accused has no statutory right to be heard.

“Receipt of ₹63,00,000 by RTGS Clearly Established; FIR Properly Registered”

The facts of the case revealed that the de facto complainant, a compensation claimant who lost a leg in an accident, had received ₹1.67 crore by order of the Motor Accidents Claims Tribunal. On the advice of his auditor (A2), he invested ₹63,00,000 with A1 (the petitioner) under the promise of “fancy interest”.

Despite 17 RTGS transactions (detailed in the complaint), neither interest nor principal was returned. The complainant approached police and later the court when no progress was made.

Justice Thamilselvi observed: “On perusal of the bank transactions… there is prima facie material for registration and investigation. The petitioner had already attended preliminary enquiry and was aware of the proceedings.” [Para 5]

“No Jurisdictional Error—Madipakkam Police Rightly Handled the Matter”

The petitioner also challenged the jurisdiction of the Madipakkam Police Station, contending that only Velacherry Police had territorial jurisdiction.

This argument too was rejected:

“The FIR was properly registered based on locus of receipt and transaction nexus. Petitioner had himself attended enquiry at the same police station earlier. Hence, no prejudice caused.” [Para 3]

“Breach of Bail Undertaking is Abuse of Process—Bail of 2nd Accused Cancelled”

Both A1 and A2 had obtained anticipatory bail by agreeing to deposit ₹20,00,000 and ₹10,00,000 respectively, and giving written undertakings that they had no objection to the complainant receiving the amount.

However, the second accused (A2) later moved a petition seeking modification, thereby blocking withdrawal of the amount by the complainant.

Justice Thamilselvi held:

“This conduct is a clear abuse of process of law… the anticipatory bail granted to the 2nd accused is liable to be cancelled.” [Para 7]

Accordingly, the anticipatory bail of A2 was cancelled, and the complainant was permitted to withdraw ₹20,00,000 deposited by the petitioner (A1), who had raised no objection.

“Magistrate’s Order Based on Prima Facie Satisfaction—Not Revisable Under Section 401 CrPC”

The petitioner invoked Section 397 read with Section 401 CrPC, seeking revision of the Magistrate’s order. But the High Court emphasized that:

“A direction to register FIR, when based on satisfaction of material facts, is not a final order or one affecting rights of the accused so as to warrant interference under Section 401.” [Para 6]

Since the order was neither perverse nor illegal, the revision petition was dismissed in limine.

“Clerical Error in Date of Order Must Be Rectified in Records and FIR”

It was pointed out that the order, though signed on 12.02.2025, erroneously mentioned the date as 24.02.2025.

Accepting the request, the High Court directed: “The trial judge is directed to rectify the date of the order in records and direct appropriate correction in the FIR.” [Para 8]

“Settlement Possibility Considered—Case Referred to Mediation Centre”

In a progressive move aimed at restorative resolution, the Court also referred the case to the Tamil Nadu Mediation and Conciliation Centre, Chennai.

“The matter is referred for mediation… Mr. Saikrishnan is appointed as Mediator… Parties shall appear before the Mediation Centre on 18.11.2025.” [Para 10]

BNSS Reforms Supported—No Procedural Breach When FIR is Directed on Prima Facie Proof

This ruling aligns with emerging jurisprudence under the Bharatiya Nyaya Sanhita, emphasizing that procedural fairness for the accused begins only after registration of the FIR, not at the preliminary complaint stage.

Justice T.V. Thamilselvi concluded: “The trial court’s direction to register FIR was based on well-substantiated bank records and material. The revision has no merit and is dismissed.” [Para 7]

Date of Decision: 27 October 2025