Anshuman Santra vs State Of Odisha & Anr.

Dr. Sanjeeb K Panigrahi, J.

The present petition has been filed seeking quashing of the entire criminal proceeding arising out of Khandagiri P.S. Case No.515 of 2025, corresponding to C.T. Case No.1311 of 2025, pending before the learned J.M.F.C.-V, Bhubaneswar, including the order dated 30.09.2025, whereby the learned Magistrate has taken cognizance of the offences punishable under Sections 351(3), 246 and 356(2) of the Bharatiya Nyaya Sanhita, 2023 (BNS, 2023).

The Informant alleges that, while serving as a Nursing Officer at AIIMS, Bhubaneswar, she came into contact with the Petitioner through Facebook, whereafter the Petitioner approached her with a proposal of marriage. The Informant informed the Petitioner that she would discuss the proposal with her parents. However, it is alleged that the Petitioner did not disclose his previous marriage with one Ms. Anamika Biswas. Upon learning about the Petitioner's earlier marriage, the Informant and her parents declined the marriage proposal. Thereafter, the Petitioner allegedly began threatening the Informant over the telephone, stating that he would kidnap her, compel her to marry him, and also extend threats to her family members. It is further alleged that the Petitioner visited the hospital where the Informant is employed as a Nursing Staff on 17.05.2025 and misbehaved with her. Again, on 12.07.2025, he allegedly visited the hospital and attempted to misbehave with her. The Informant has further alleged that the Petitioner instituted a false and frivolous petition under Section 9 of the Hindu Marriage Act, 1955, seeking restitution of conjugal rights, and had earlier also filed another false case bearing CNR No. JHSK030022512025. Apprehending danger to her personal and professional life, as well as to the safety of her parents, the Informant lodged the present FIR.

Learned counsel for the Petitioner earnestly made the following submissions in support of his contentions, as borne out from the Written Note of Submissions:

ii) It is further submitted that, in respect of a non-cognizable offence, the Police have no authority to undertake any investigation without obtaining a prior order from the Magistrate having jurisdiction to try the case or commit it for trial, as mandated under the law.

iii) He further submitted that no police officer is empowered to investigate a non-cognizable offence without obtaining a prior order from the Magistrate having jurisdiction to try such case or commit it for trial.

iv) Any police officer receiving such an order from the Magistrate may exercise the same powers in respect of the investigation (except the power to arrest without a warrant) as an officer-in-charge of a police station may exercise while investigating a cognizable case.

vi) It is further contended that, even after conducting the investigation, the Police have filed the charge-sheet under Sections 351(3), 246 and 356(2) of the Bharatiya Nyaya Sanhita, 2023, which are non-cognizable offences.

vii) The learned J.M.F.C.-V, Bhubaneswar, Odisha, vide order dated 30.09.2025, without proper application of judicial mind, took cognizance of the offences under Sections 351(3), 246 and 356(2) of the Bharatiya Nyaya Sanhita, 2023.

viii) In view of the provisions contained in Section 215(1)(b) of the Bharatiya Nagarik Suraksha Sanhita, 2023, there exists a statutory embargo on the Court from taking cognizance of an offence punishable under Section 246 of the Bharatiya Nyaya Sanhita, 2023, except upon a complaint in writing made by the Court concerned, or by such officer of that Court as may be authorized by it in writing in this behalf, or by a Court to which such Court is subordinate. In the absence of such a complaint, the learned Court could not have lawfully taken cognizance of the offence under Section 246 of the Bharatiya Nyaya Sanhita, 2023.

ix) Insofar as the alleged commission of the offence under Section 356(2) of the BNS, 2023 is concerned, Section 222 of the Bharatiya Nagarik Suraksha Sanhita, 2023 expressly mandates that no Court shall take cognizance of such offence except upon a complaint made by the person aggrieved by the alleged offence.

xi) The law laid down by the Hon’ble Supreme Court of India in State Of Haryana And Ors. vs Ch. Bhajan Lal And Ors^{11.AIR 1992 SC 604, 1992 SCC (Supp) (1) 335}, wherein it has taken the view that at paragraph 8 which is extracted hereunder:

On the contrary, the Learned Counsel for the Opposite Party No.2 made the following submissions:

ii) It is submitted that the allegations contained in the F.I.R., the materials collected during the course of investigation, and the charge-sheet, when read as a whole and taken at their face value, prima facie disclose the commission of offences under Sections 246, 351(3) and 356(2) of the Bharatiya Nyaya Sanhita, 2023 ("B.N.S."), against the Petitioner. The present case does not fall within any of the seven illustrative categories enumerated by the Supreme Court in State of Haryana & Ors. v. Ch. Bhajan Lal & Ors. (supra), wherein the extraordinary jurisdiction for quashing criminal proceedings under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (formerly Section 482 of the Code of Criminal Procedure, 1973) may be exercised.

iii) The Opposite Party No. 2 is serving as a Nursing in the Department of Haematology at AIIMS, Bhubaneswar. The Petitioner initially contacted Opposite Party No. 2 through the social media platform Facebook and thereafter approached her with a proposal for marriage. While pursuing the said proposal, the Petitioner dishonestly and fraudulently concealed the material fact that he was already legally married to one Ms. Anamika Biswas. Upon subsequently discovering the existence of the Petitioner's subsisting marriage, Opposite Party No.2 unequivocally declined his proposal, and her parents also refused to consent to any such marriage.

iv) Upon learning of the Petitioner's subsisting marriage, Opposite Party No. 2 declined his matrimonial proposal. The Petitioner, however, did not accept her decision. Instead, he embarked upon a sustained campaign of threats, intimidation, and coercion by repeatedly contacting Opposite Party No. 2 as well as her family members. During the course of such conduct, he allegedly threatened to kidnap Opposite Party No.2, compel her to marry him against her will.

vi) The Petitioner's aforesaid conduct gravely disrupted the professional duties of Opposite Party No. 2 at her workplace, caused her immense embarrassment and humiliation in the presence of her colleagues, nursing staff and superiors, and created a continuing atmosphere of fear, intimidation and insecurity. The Petitioner's conduct clearly demonstrates a continuing course of unlawful behaviour, thereby fully justifying the registration of the F.I.R.

vii) Finding no other recourse, Opposite Party No. 2 lodged an F.I.R. at Khandagiri Police Station, Bhubaneswar, which was registered as Khandagiri P.S. Case No. 515 of 2025. Upon completion of investigation, the police submitted charge-sheet No.1056 dated 30.09.2025 under Sections 246, 351(3), and 356(2) of the Bharatiya Nyaya Sanhita, 2023. The learned J.M.F.C. (V), Bhubaneswar, took cognizance of the said offences on 30.09.2025.

viii) The Opposite Party No. 2, as the victim of the offences, is entitled to have the criminal prosecution proceed in accordance with law. Since the investigation has culminated in the filing of a charge-sheet and the learned Magistrate has validly taken cognizance, the matter ought to proceed to trial. Quashing the proceedings at this stage would defeat the ends of justice and result in a grave miscarriage of justice.

ix) No case exists for staying the criminal proceedings in C.T. Case No. 1311 of 2025. Granting an interim stay would seriously prejudice Opposite Party No.2 and enable the Petitioner's continued harassment by delaying the trial. Accordingly, the CRLMC deserves to be dismissed as being devoid of merit, and not maintainable in law or on facts.

This Court has heard learned counsel appearing for the Petitioner as well as learned counsel representing Opposite Party No.2 at considerable length and has also had the benefit of perusing the case diary, the charge-sheet, the impugned order of cognizance dated 30.09.2025, and the written submissions placed on record by both sides. Before proceeding to examine the rival contentions on their relative merits, it would be useful to recall the settled contours of the jurisdiction being invoked. The power under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023, corresponding to the erstwhile Section 482 of the Code of Criminal Procedure, 1973, is inherent, extraordinary and discretionary in character. It is not meant to be exercised as a matter of routine, nor is it intended to convert this Court into a forum for a mini-trial or a re-appreciation of evidence at the threshold stage. At the same time, where the continuance of a criminal proceeding is demonstrably without jurisdiction, or where a statutory bar stands squarely in the way of the Court taking cognizance, this inherent power is precisely the instrument, the law provides to prevent the machinery of criminal justice from being pressed into service contrary to its own governing statute. The present case, on a close reading, calls for the application of both these principles simultaneously, since the charge-sheet and the cognizance order impugned herein rest on more than one offence, each of which must be tested independently on its own footing rather than being treated as a composite, indivisible whole.

Two distinct questions therefore fall for consideration. The first is whether the offences under Sections 246 and 356(2) of the Bharatiya Nyaya Sanhita, 2023, could at all have been taken cognizance of by the learned Magistrate on the strength of a police charge-sheet, given the specific procedural bars engrafted in Sections 215(1)(b) and 222 of the Bharatiya Nagarik Suraksha Sanhita, 2023. The second is whether the offence under Section 351(3) of the Bharatiya Nyaya Sanhita, 2023, stands on a materially different footing, being an offence that is cognizable in nature and therefore not subject to the same procedural embargo, such that the police were competent to investigate it and place it before the Magistrate without any prior complaint or judicial order.

Taking up the first question, Section 246 of the Bharatiya Nyaya Sanhita, 2023, penalizes the giving of false information to a public servant with the object of causing that public servant to use his lawful power to the injury or annoyance of another person. The offence, by its very definition, is concerned with an affront to the authority and functioning of a public servant rather than a private wrong done to an individual complainant in the ordinary sense. It is precisely because of this special character that the legislature has thought it necessary to insulate such offences from ordinary criminal prosecution set into motion by the police on their own initiative. Section 215(1)(b) of the Bharatiya Nagarik Suraksha Sanhita, 2023, accordingly provides that no Court shall take cognizance of any offence punishable under Section 246 of the Bharatiya Nyaya Sanhita except upon a complaint in writing made by the public servant concerned, or by some officer to whom he is administratively subordinate, or by a Court to which the said Court is itself subordinate. This is a mandatory, and not merely a directory, requirement.

It is a jurisdictional condition precedent, the absence of which goes to the very root of the Magistrate's competence to take cognizance and cannot be cured by the mere existence of a police charge-sheet, however diligently the investigation might otherwise have been conducted. In the present case, it is not disputed that on the material placed before this Court, that no such complaint by the public servant concerned or by any officer competent to lodge such complaint was ever made. The prosecution qua Section 246 rests entirely on the police charge-sheet. That being so, the cognizance taken by the learned J.M.F.C.-V, Bhubaneswar, insofar as it pertains to the offence under Section 246 of the Bharatiya Nyaya Sanhita, 2023, is rendered without jurisdiction on the face of the record itself and no amount of subsequent evidence gathered during trial could possibly cure this initial jurisdictional infirmity.

Much the same reasoning, though resting on a distinct statutory provision, governs the offence under Section 356(2) of the Bharatiya Nyaya Sanhita, 2023 which deals with defamation. Defamation has, both under the erstwhile Penal Code and now under the Bharatiya Nyaya Sanhita, consistently been treated by the legislature as an offence essentially private in character, touching upon the reputation and personal dignity of an individual rather than the public order or the interest of the State at large. It is for this reason that Section 222 of the Bharatiya Nagarik Suraksha Sanhita, 2023, stipulates that no Court shall take cognizance of an offence of defamation except upon a complaint made by some person aggrieved by the offence. The rationale underlying this provision is not difficult to discern.

The legislature has consciously chosen to leave the decision of whether or not to prosecute for an injury to one's own reputation in the hands of the person whose reputation has allegedly been injured, rather than permitting the State through its police machinery, to set the criminal law into motion on its own account.

A charge-sheet filed by the police, however thorough the underlying investigation, simply cannot be treated as a substitute for the complaint that the statute imperatively requires. On a careful perusal of the record in the present case, this Court finds no complaint whatsoever by the Informant, or by any person claiming to be aggrieved that could satisfy the requirement of Section 222 of the Bharatiya Nagarik Suraksha Sanhita, 2023. The cognizance taken in respect of Section 356(2) is, therefore, equally unsustainable and suffers from the identical jurisdictional vice that afflicts the cognizance taken under Section 246.

Both these infirmities, in the considered view of this Court, squarely attract category (f) of the illustrative categories enumerated by the Hon'ble Supreme Court of India in State of Haryana and others versus Ch. Bhajan Lal and others, namely, a case where there exists an express legal bar engrafted in the concerned statute to the institution and continuance of the proceedings.

It would be a travesty of the statutory scheme, and indeed an act of futility, to permit a criminal trial to proceed on charges that could never lawfully have been taken cognizance in the first place, merely because the police, perhaps inadvertently or through an incomplete appreciation of the procedural bars applicable to these specific offences, chose to include them in the charge-sheet. This Court is therefore of the considered opinion that the cognizance taken on 30.09.2025, to the limited extent that it relates to the offences under Sections 246 and 356(2) of the Bharatiya Nyaya Sanhita, 2023, deserves to be set aside as being without jurisdiction.

Turning now to the offence under Section 351(3) of the Bharatiya Nyaya Sanhita, 2023, this Court finds that it stands on an altogether different footing and cannot be equated with the two offences discussed above. Section 351(3) deals with an aggravated form of criminal intimidation, namely, a threat to cause death or grievous hurt or a threat to cause the destruction of property by fire, or a threat involving an offence punishable with death or with imprisonment for life, or with imprisonment for a term extending to seven years, or a threat to impute unchastity to a woman. An offence of this gravity is treated by the statutory scheme as cognizable in nature and no equivalent procedural bar akin to Sections 215(1)(b) or 222 of the Bharatiya Nagarik Suraksha Sanhita, 2023, has been shown to exist in respect of it. The police were, therefore, well within their competence to investigate this offence upon the allegations disclosed in the FIR and the material gathered thereafter and to place the same before the learned Magistrate by way of charge-sheet without requiring any prior order of the Magistrate under Section 155(2) or any complaint of the kind contemplated for Sections 246 and 356(2).

On a plain reading of the allegations set out in the FIR and reiterated in the charge-sheet, it emerges that the Petitioner is alleged to have repeatedly threatened the Informant over the telephone, stating that he would kidnap her and compel her to marry him against her wishes, and further extended threats to the safety of her family members. It is also alleged that the Petitioner visited the Informant's place of work at AIIMS, Bhubaneswar, on two separate occasions, namely 17.05.2025 and 12.07.2025, and misbehaved with her in the presence of her colleagues, causing her considerable distress and apprehension. Taking these allegations at their face value, as this Court is obliged to do at this preliminary stage without embarking upon a roving enquiry into their truth or falsity, they do disclose, prima facie, the ingredients necessary to constitute an offence under Section 351(3) of the Bharatiya Nyaya Sanhita, 2023. Whether these allegations will ultimately be proved at trial, and whether the evidence led by the prosecution will withstand the rigours of cross-examination, are matters entirely within the domain of the trial Court, and this Court would be exceeding the legitimate bounds of its jurisdiction under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023, were it to attempt any such exercise at this stage.

The contention raised on behalf of the Petitioner, that the FIR as originally registered invoked only Sections 318(2) and 351(2) of the Bharatiya Nyaya Sanhita, both of which are admittedly non-cognizable, and that the subsequent charge-sheet under different and more serious sections is therefore vitiated in its entirety, does not commend itself to this Court. It is well settled that the sections cited at the time of registration of an FIR are not cast in stone, and an investigating officer is neither bound nor expected to correctly classify the precise offence at the very inception of investigation. Where, in the course of investigation, material comes to light disclosing the commission of a more serious and cognizable offence arising out of the very same transaction, it is open to, and indeed incumbent upon, the investigating agency to reflect that offence in the charge-sheet eventually submitted. The bar under Section 155(2) of the Bharatiya Nagarik Suraksha Sanhita, 2023, operates only where the offence under investigation remains, and continues to remain, exclusively non-cognizable throughout. It has no application to a situation such as the present, where the investigation itself has thrown up material disclosing a cognizable offence distinct from, though arising out of the same facts as, the offences originally cited.

Having thus examined each of the three offences independently, this Court arrives at the conclusion that a composite or indivisible approach to the charge-sheet and the cognizance order would not be appropriate in the facts of this case. The offences under Sections 246 and 356(2) of the Bharatiya Nyaya Sanhita, 2023, could not lawfully have been taken cognizance of in the absence of the complaints mandated by Sections 215(1)(b) and 222 respectively of the Bharatiya Nagarik Suraksha Sanhita, 2023, and the cognizance taken in respect of these two offences must accordingly be quashed as being without jurisdiction, falling squarely within category (f) of Bhajan Lal. The offence under Section 351(3), being cognizable and free of any comparable statutory bar, suffers from no such infirmity, and the allegations on record disclose its ingredients prima facie, such that neither category (a) nor category (c) nor any other illustrative category enumerated in Bhajan Lal would justify interference with the proceeding to this limited extent.

This Court is also conscious that quashing the proceeding in its entirety, merely because two of the three offences charged are procedurally barred, would result in shielding conduct that, if the allegations are ultimately proved, amounts to a grave threat to the personal safety and dignity of the Informant, a working professional who has approached the law seeking protection. Equally, permitting the prosecution to continue on charges that the statute itself forbids the Court from taking cognizance of would amount to a plain abuse of the process of the Court. The balance of justice, in the considered view of this Court, therefore lies in a calibrated order that excises the jurisdictionally infirm counts while allowing the properly instituted count to proceed to trial in accordance with law.

In view of the foregoing discussion, the cognizance taken by the learned J.M.F.C.-V, Bhubaneswar, vide order dated 30.09.2025, is quashed insofar as it relates to the offences punishable under Sections 246 and 356(2) of the Bharatiya Nyaya Sanhita, 2023, the same being barred under Sections 215(1)(b) and 222 respectively of the Bharatiya Nagarik Suraksha Sanhita, 2023.

The proceeding in C.T. Case No. 1311 of 2025, pending before the learned J.M.F.C.-V, Bhubaneswar, shall continue only in respect of the offence under Section 351(3) of the Bharatiya Nyaya Sanhita, 2023, and shall proceed to its logical conclusion in accordance with law, uninfluenced by any observation made in this order, which observations have been made solely for the purpose of deciding this CRLMC.

The CRLMC stands disposed of accordingly. No order as to costs.

Interim order, if any, passed earlier stands vacated.