Court holds that after revision fails, Section 528 BNSS cannot ordinarily be invoked to bypass the bar under Section 438(3), especially when the complaint is still pending before the Magistrate for pre-summoning evidence.
The Delhi High Court has dismissed a petition filed by Anil Ahluwalia seeking directions for registration of an FIR against a hospital and its staff in connection with the death of his wife during Covid-19 treatment, holding that the plea was not maintainable under the Bharatiya Nagarik Suraksha Sanhita (BNSS).
Justice Girish Kathpalia ruled that a litigant cannot use the High Court’s inherent powers under Section 528 BNSS as a “backdoor” remedy after unsuccessfully challenging an order in revision. The Court said that Section 438(3) BNSS, which corresponds to Section 397(3) of the old CrPC, bars a second revision, and this prohibition cannot ordinarily be defeated by invoking inherent jurisdiction.
The petitioner had filed a complaint alleging that his wife, who was suffering from Covid-19, was denied proper treatment at a hospital, that money was allegedly demanded for admission, prescriptions were manipulated, oxygen supply was stopped, and that these acts resulted in her death. Along with the complaint, he had sought directions under Section 175(3) BNSS for registration of an FIR.
The Magistrate, after calling for an Action Taken Report and considering the material, dismissed the request for FIR registration and instead posted the complaint for pre-summoning evidence under Section 200 CrPC/its BNSS equivalent. The Sessions Court later upheld that order in revision. The petitioner then approached the High Court under Section 528 BNSS.
The High Court noted that the complaint was still pending before the Magistrate and that the petitioner was fully aware of the identity of the accused persons and the facts relied upon. In such a situation, the Court said, the petitioner was not rendered remediless merely because police investigation was refused. If necessary, the Magistrate could still seek police assistance at a later stage.
Justice Kathpalia relied on Supreme Court precedents, including Krishnan v. Krishnaveni and Dhariwal Tobacco Products Ltd. v. State of Maharashtra, as well as the Delhi High Court’s earlier ruling in Exclusive Capital Ltd. v. State, to reiterate that inherent powers may be exercised only in rare cases involving gross injustice, abuse of process, or grave miscarriage of justice.
The Court concluded that this was not a “rarest of rare” case warranting interference. It held that the petitioner had an effective remedy before the Magistrate through the ongoing complaint proceedings, and therefore there was no justification to invoke inherent powers to direct registration of an FIR. The petition was accordingly dismissed as not maintainable.
Bottom Line :
BNSS - Petition under Section 528 BNSS challenging revisional order affirming dismissal of application under Section 175(3) BNSS/erstwhile Section 156(3) CrPC - After unsuccessful revision, inherent powers cannot be invoked as a backdoor remedy in routine - Such power can be exercised only in rarest of rare cases involving gross injustice, abuse of process or grave miscarriage of justice - Where complaint remains pending for pre-summoning evidence and complainant is aware of identity and role of accused, denial of direction for FIR does not render complainant remediless.
Statutory provision(s): Section 175(3) BNSS, Section 200 CrPC, Section 202 CrPC, Section 438 BNSS, Section 528 BNSS, Section 397(3) CrPC, Section 482 CrPC
Anil Ahluwalia v. State NCT of Delhi, (Delhi) : Law Finder Doc id # 2983908
