SRI. VIJAYARAGHAVA MARATHE vs THE STATE OF KARNATAKA
- Court
- Karnataka High Court
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
R
TH
DATED THIS THE 18 DAY OF AUGUST, 2026
BEFORE
THE HON'BLE MR. JUSTICE M.NAGAPRASANNA
CRIMINAL PETITION NO. 12406 OF 2026
BETWEEN:
SRI VIJAYARAGHAVA MARATHE
S/O LATE SHRI M MAHADEV MARATHE
AGED ABOUT 62 YEARS
STATE PRESIDENT OF LANCHAMUKTHA
KARNATAKA VEDIKE (REGD)
ND
R/AT NO.25, "SANGVI", 2 CROSS,
ASHRAMA ROAD, YELACHANAHALLI
K.S. LAYOUT POST,
BENGALURU - 560 111.
…PETITIONER
(BY SMT.LAKSHMY IYENGAR, SR.ADVOCATE FOR
SRI NAGESH VINAY S.,ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
BY KARNATAKA LOKAYUKTHA,
BENGALURU
REPRESENTED BY
THE SPP OFFICE
HIGH COURT OF KARNATAKA
BENGALURU - 560 001.
Digitally signed
by RAKESH S
HARIHAR
Location: High
Court of
Karnataka,
Dharwad Bench
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2. SHRI MALLIKARJUN KHARGE
AGED ABOUT MAJOR
TH
R/AT NO.289, 17 CROSS,
SADASHIVANAGARA,
BENGALURU - 560 080.
3. SRI. RADHAKRISHNA
AGED ABOUT MAJOR
R/AT NO.5/98, MAIN ROAD,
GUNDAGURTHI VILLAGE,
CHITTAPUR TALUK,
GULBARGA - 585 317.
4. SMT. RADHABAI M KHARGE
AGED ABOUT MAJOR
TH
R/AT NO.289, 17 CROSS,
SADASHIVANAGARA,
BENGALURU - 560 080.
5. SHRI RAHUL M. KHARGE
AGED ABOUT MAJOR
TH
R/AT NO.289, 17 CROSS,
SADASHIVANAGARA,
BENGALURU - 560 080.
6. SHRI PRIYANK M. KHARGE
AGED ABOUT MAJOR
TH
R/AT NO.289, 17 CROSS,
SADASHIVANAGARA,
BENGALURU - 560 080.
…RESPONDENTS
(BY SRI VENKATESH S.ARBATTI, ADVOCATE FOR R-1)
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CRL.P No. 12406 of 2026
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THIS CRL.P FILED U/S.528 OF BNSS PRAYING TO SET
ASIDE THE IMPUGNED ORDER DATED 11.08.2026 PASSED BY
THE HON'BLE LXXXI ADDL. CITY CIVIL AND SESSIONS JUDGE,
BENGALURU (CCH-82), IN PCR NO.28/2025, PRODUCED
HEREWITH AS ANNEXURE A, FOR THE OFFENCES P/U/S 314,
316, 336 AND 61 OF BNS 2023 R/W SEC.13(1)(a) AND
13(1)(b) OF PC ACT 1988.
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE M.NAGAPRASANNA
ORAL ORDER
The petitioner/complainant is before this Court calling in
question an order dated 11-08-2026 in P.C.R.No.28 of 2025
passed by the LXXXI Additional City Civil and Sessions Judge,
Bengaluru, insofar as it does not direct taking the route of
Section 175 of the BNSS but, chooses the route of conducting
an enquiry under Section 223 of the BNSS.
2. Heard Smt. Lakshmy Iyengar, learned senior counsel
appearing for the petitioner and Sri Venkatesh S. Arbatti,
learned counsel representing respondent No.1. Though other
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accused 1 to 5 are arraigned as respondent Nos.2 to 6, they
being formal parties, have no right of hearing at this stage of
the proceedings. Therefore, no notice is issued to respondent
Nos.2 to 6, who are pro-forma respondents.
3. Facts, in brief, germane are as follows:
3.1. The petitioner claims to be the President of
Lanchamukta Karnataka Vedike , a registered organisation
professedly engaged in espousing causes concerning probity in
public administration. The genesis of the lis lies in a complaint
submitted by the petitioner before the jurisdictional Police—
High Grounds Police Station on 21-01-2025. The gravamen of
the complaint is that, one Siddharatha Vihar Trust (hereinafter
referred to as ‘the Trust’ for short), though constituted as a
public charitable trust for the benefit of all communities,
irrespective of caste, creed or religion, had allegedly projected
itself to be an institution exclusively established for the benefit
of the Scheduled Castes and Scheduled Tribes, with the object
of securing concessions and benefits earmarked exclusively for
such institutions.
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3.2. The allegation proceeds that, on the strength of the
aforesaid representation, the Trust approached the Bangalore
Development Authority seeking allotment of a civic amenity site
th
in Banashankari 6 Stage under the quota reserved for the
Scheduled Castes and secured a concession of 50% in the lease
amount—a concession which, according to the petitioner, was
intended only for trusts established exclusively for the welfare
of the Scheduled Castes and Scheduled Tribes. The complaint
further alleges that the allotment did not come about in the
ordinary course, but was facilitated by the influence wielded by
certain trustees, acting in concert with public servants, thereby
giving a complete go-by to the rules and procedure governing
such allotments.
3.3. The complaint so presented did not fructify into
registration of a crime at the hands of the jurisdictional Police.
The petitioner, therefore, carried the grievance to the
Superintendent of Police, Karnataka Lokayukta, by submitting
yet another complaint on 30-01-2025. This too, according to
the petitioner, met with no response. Since the allegations
were directed, inter alia, against public servants and the
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offences alleged had their contours under the Prevention of
Corruption Act, 1988 (hereinafter referred to as ‘the Act’ for
short), the petitioner, proceeding further in the matter,
submitted an application on 30-07-2025 before the Governor
seeking approval under Section 17A of the Act.
3.4. Having thus knocked at every door which, according
to him, the law required him to knock at, and finding none
opening, the petitioner ultimately knocked at the doors of the
Special Court by registering a private complaint in P.C.R.No.28
of 2025. The complaint alleged large-scale irregularities in the
allotment of civic amenity sites and sought reference of the
matter for investigation in exercise of power under Section
175(3) of the Bharatiya Nagarik Suraksha Sanhita, 2023
(‘BNSS’ for short).
3.5. The concerned Court, however, did not accede to
the prayer for reference of the complaint for investigation
under Section 175(3) of the BNSS. It chose a different path.
The Court directed that it would itself proceed to conduct an
enquiry under Section 223 of the BNSS. It is this course
adopted by the concerned Court, and more particularly, the
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operative portion of the order declining to set the investigative
machinery in motion, that has driven the petitioner to this
Court in the subject petition.
SUBMISSIONS:
PETITIONER'S:
4.1. Smt. Lakshmy Iyengar, learned senior counsel
appearing for the petitioner—complainant, would vehemently
contend that the allegations in the complaint, by their very
nature and sweep, cry out for investigation under Section
175(3) of the BNSS. Her submission is that, allegations of
corruption, abuse of public office and conferment of benefits
contrary to the governing norms cannot appropriately be
unravelled by the Special Court embarking upon an enquiry by
itself, particularly when the statute has put in place a
specialised investigative agency equipped to probe allegations
of corruption involving public servants.
4.2. The learned senior counsel would submit that what
the complaint unveils is not a matter capable of being
unearthed merely on the material presently at the command of
the complainant. The allegations necessarily require collection
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of official records, examination of the process culminating in
allotment, identification of the role played by the public
servants concerned and investigation into the circumstances
under which a concession allegedly reserved for a particular
class of institutions came to be extended to the Trust. These,
according to the learned senior counsel, are matters
quintessentially within the realm of investigation and not an
enquiry that the complainant can be expected to establish
unaided before the Special Court.
4.3. The learned senior counsel would further contend
that the requirement concerning filing of an affidavit or
compliance with other procedural safeguards would arise at the
appropriate stage when the Court considers reference of the
complaint for investigation and cannot furnish justification for
altogether steering the complaint into an enquiry under Section
223 of the BNSS. The concerned Court, according to the
learned senior counsel, has thus misdirected itself both on fact
and in law by choosing to undertake an enquiry where the
allegations themselves demand investigation by the specialised
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agency. She would, therefore, seek interference at the hands
of this Court and grant of the relief sought in the petition.
RESPONDENT No.1 - KARNATAKA LOKAYUKTA:
5. Sri Venkatesh S. Arbatti, learned counsel appearing for
respondent No.1—Karnataka Lokayukta, would fairly submit
that the allegations in the complaint do concern acts of
corruption and the role attributed to public servants. He would
submit that allegations of the kind projected in the complaint
would appropriately require investigation. Beyond this
submission, the learned counsel would not join issue with the
petitioner and would leave the matter to the considered
decision of this Court.
6. I have given my anxious consideration to the
submissions made by the respective learned counsel and have
perused the material on record.
CONSIDERATION:
7. In the light of the submissions and contra submissions,
the issue lies in a narrow compass as to whether the concerned
Court was right in ordering an enquiry by the Court itself under
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223 of the BNSS or had to follow the procedure under Section
175(3) of the BNSS. Therefore, it is necessary to notice the
order of the Court dated 11-08-2026. It reads as follows:
"The complainant Sri.Vijayaraghava Marathe has
filed the memorandum of complaint under Sec.175(3) r/w
Sec.2(1)(h) of BNSS, seeking for direction to the
Superintendent of Police, Lokayuktha, to register FIR
against the accused persons for the offences punishable
under Sec.314, 316, 336 and 61 of BNS 2023 r/w
Sec.13(1)(a) and 13(1)(b) of the Prevention of Corruption
Act, 1988, investigate and proceed against them.
2. In the said memorandum of complaint, the
complainant alleged that Siddhartha Vihar Trust
established with 5 members viz., Mallikarjun Kharge S/o
Mapanna Kharge, Radhakrishna S/o Rajendrappa, Maruthi
Rao, Shantappa S/o Kashiraya, Saibanna S/o Tippanna
Sangan through the registered Trust Deed dated
01.07.1994 with specific objectives for the betterment of
public in general. Further, a supplementary Trust Deed
dated 27.05.2010 came to be incorporated adding
Smt.Radhabai M Kharge, Rahul M Kharge and Priyank M
Kharge as Trustees to the said Trust. The BDA vide
notification dated 30.01.2009 invited applications for
allotment for civic amenities sites in Banashankari 6th
Stage, 5th Block, Bengaluru and Siddartha Vihar Trust
applied for grant of a civic amenity site measuring 8125
Sq.Mtrs., under scheduled caste category through its
application dated 27.02.2009 with initial deposit. He
alleged that said Trust did not fulfill the requirements of
Rule 3(2) of BDA (Allotment of Civic Amenity Sites) Rules,
1989 and further, in question No.9 of the application
form, said Siddarth Vihar Trust claimed for Scheduled
Caste, even though said Trust is not exclusively
established for the benefit of scheduled caste and
scheduled tribes. The accused No.1 was the Union
Minister at the time of allotment of civic amenity site and
he used his personal influence as a Union Minister to get a
civic amenity site allotted without following the procedure
laid down under the applicable rules. The allotment of site
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reserved for organizations that were working solely for
the benefit of the scheduled caste, in favour of the
Siddartha Vihar Trust shows that the said Trust through
its members accused No.1 to 5 used their influence and
connived with the officials of BDA. The allotment made in
favour of the Siddartha Vihara Trust is illegal, without
adhering the mandatory parameters laid down under the
rules.
3. Further, it is alleged that the Trust
requested BDA to give concession in the lease
amount on the ground that the Trust is managed by
scheduled caste management by the letter dated
08.06.2010 and such request was approved by
granting 50% of concession to Siddartha Vihara
Trust within a month which shows undue influence
in the allotment of said site to the Trust and
connivance of the officials of BDA.
4. Further it is alleged that Siddartha Vihar
Trust requested the BDA by its letter dated
15.09.2010 for alternative site No.5 measuring
th
8002 Sq.mtrs., at BTM 4 Stage, Bengaluru and the
committee by the meeting dated 25.09.2010
decided to allot said alternative site by the
resolution No.337/2010 and it shows the said
application was processed in a abnormal speed and
decided within 10 days, canceling the allotment of
site of Divya Foundation. Further it is alleged that
the said gross irregularities committed to cause
undue advantage to Siddartha Vihar Trust by undue
influence and misuse of power by accused No.1 and
5. The market value of the alternative site is
approximately Rs.130 Crores and the BDA allotted
more valuable site to the Trust than the Trust
eligible for the allotment. After the allotment of
alternative site, a issue arose with regard to grant
of 50% concession again and the Law Officer
opined that Siddhartha Vihara Trust was not
created only for the benefit of scheduled caste and
said Trust is not eligible for the benefit of
concession. Further Siddartha Vihar Trust and
accused No.1 to 5 violated the Rule 10(7) of
aforesaid rules and did not construct any building in
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spite of lapse of three years, which is accepted by
the letter dated 30.03.2022. The Estate Officer also
in his note dated 08.06.2022 noted that no building
has been constructed over CA Site No.5. The
officials of BDA knowing about the illegality failed
to take any action in accordance with Rule 10(7) of
aforesaid Rules and Siddartha Vihar Trust in
collusion with officials of BDA illegally retained the
land allotted to them. The accused No.1 to 5 used
their personal influence to gain undue advantage by
getting the site allotted under SC quota, thereafter
obtained concession though not applicable to them
and they were granted with alternative site and
failed to utilize the land for the purpose for which
said land leased out by the BDA. The accused No.1
to 5 committed criminal breach of trust in
connivance with the officials of BDA; and illegally
and unlawfully converted the property for their own
personal use. Further, the accused No.1, 5 and 6
holding high posts, misused their offices to gain
undue advantage to Siddartha Vihar Trust. Thus,
complainant alleged the commission of alleged
offences by the accused persons.
5. On careful perusal of the records placed,
the complainant has presented the complaint along
with his sworn affidavit narrating the alleged facts
in detail. The complainant produced the documents
in support of his contentions and upon perusal of
the copies of Trust Deed and the supplementary
Trust Deed, it appears that the accused No.1 to 5
are the Trustees of the Trust named Siddartha Vihar
Trust and such Trust is a Charitable Trust, with
specific objectives, for the benefit of all the persons
irrespective of caste, creed, religion, sex or color
and such Trust is a secular Trust.
6. Further, on perusal of the copy of
application for allotment of CA Site dated
05.03.2009, it would indicate that Siddartha Vihar
Trust applied for allotment of CA Site to start the
educational institution. The copy of allotment letter
dated 07.04.2010 would indicate that the BDA
allotted the CA site No.3 measuring 8125 Sq.mtrs at
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Banashankari 6th Stage, 5th Block for
establishment of educational institutions, subject to
conditions. From the copy of letter dated
08.06.2010, it appears that the said Trust requested
for concession in payment of lease amount as the
said Trust is managed by the management of
scheduled caste. The copy of 9 PCR No.28/2025
noting sheet of BDA produced would indicate that
the Commissioner approved for payment of 50% of
the lease amount. Further the record appears that,
by the letter dated 15.09.2010, said Siddartha Vihar
Trust requested for allotment of alternative site and
the BDA by the order dated 25.09.2010 allotted the
th
alternative site measuring 8002 Sq. mtrs at BTM 4
nd
Stage, 2 Block. The copy of letter dated
30.03.2022 of Siddartha Vihar Trust by its Secretary
accused No.2 indicates that the said site is not
utilized by the said Trust and weeds grown over the
said allotted site.
7. The copy of unofficial note of BDA produced
would indicate that, the Estate Officer gave the
report that the building has not constructed in the
said site. Further, it appears that one
T.Chandrareddy and others filed the WP
No.23199/2025 (LA-BDA) against the BDA,
which had withdrawn by the petitioner therein.
Further, it appears that a WP No.6370/2020 (LA-
BDA) preferred and the preliminary notification and
final notification quashed in so far as Sy.No.50/2,
50/1 and 51/5 of Devarachikkanahalli village.
8. It appears from the copy of Order dated
02.09.2022 passed in W.P.No.13011/2022 (LA-
BDA) produced by the complainant appears that
Siddartha Vihar Trust challenged the aforesaid
quashing order and the Hon’ble High Court disposed
of the said matter by granting liberty to said Trust
for impleadment in pending W.A.No.252/2022 filed
by BDA or recourse of appeal.
9. Ms.Lakshmi Iyengar, learned Senior
Counsel appearing on behalf of learned counsel for
complainant taking through the copy of application
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for allotment of Civic Amenity Site by Siddartha
Vihar Trust and the objectives of the Trust Deed
contended that the said Trust applied for allotment
of site under Scheduled Caste category, though the
objectives of the Trust is not only for the members
of the scheduled caste. She drawn the attention of
the court to Column No.9 of the application and
objectives of the Trust and submitted that said
Trust fraudulently claimed for the CA Site. The
Trustees of the said Trust misrepresented the BDA
and in collusion with the officials of BDA,
fraudulently got obtained the site and thereby,
obtained wrongful gain. Further, taking through
the copy of application for alternative site, she
submitted that the Trust claimed the alternative site
as the said Trust is a scheduled caste
Trust, and further, the concession obtained by the
said Trust on the ground that the management of
the said Trust is a scheduled caste management. So,
prima-facie the accused committed the alleged
offences and therefore, the matter needs
investigation. She further submitted that the
complainant submitted the complaints before the
Station House Officer at High Grounds Police Station
on 21.01.2025 and before the Superintendent of
Police, Karnataka Lokayuktha on 30.01.2025,
narrating the incident and commission of offences
in detail. Further, he also approached His Excellency
Hon’ble Governor of Karnataka seeking for
the sanction under Sec.17-A of Prevention of
Corruption Act, since accused No.5 is the elected
legislative member.
10. In the course of arguments, the learned Senior
Counsel, has taken through the order passed by the
Hon’ble High Court of Karnataka in Crl.Petition
No.11571/2025 c/w Crl.Misc.No.11573/2025
(Mahantesh Bilagi and another Vs. The State of
Karnataka and others) dated 02.12.2025 and
submitted that the Hon’ble High Court of Karnataka took
note of the procedure contemplated under Sec.17-A PC
Act and Sec.175(4) of BNSS; and such procedure would
come into play after the Lokayuktha Police submitted their
report and thereafter, the Magistrate proceed with the
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case on examining the Report of the Police. Further,
learned Senior Counsel taking through the decision
reported in 2025 SCC Online SC 238 (Om Prakash
Ambadkar Vs. The State of Maharashtra and others)
submitted that under Sec.175(3) of BNSS, the police
officer must be heard before investigation in the matter.
She has drawn the attention of the court to Para-29 to
31 of the said decision, which are extracted here below;
29. Section 175 of the BNSS
corresponds to Section 156 of the Cr.P.C.
Sub-section (1) of Section 175 of the BNSS
is in pari materia with sub-section 156(1)
of the Cr.P.C. except for the proviso which
empowers the Superintendent of Police to
direct the Deputy Superintendent of Police
to investigate a case if the nature or
gravity of the case so requires. Sub-
section (2) of Section 175 the BNSS is
identical to Section 156(2) of the Cr.P.C.
Section 175(3) of the BNSS empowers any
Magistrate who is empowered to take
cognizance under Section 210 to order
investigation in accordance with Section
175(1) and to this extent is in pari materia
with Section 156(3) of Cr.P.C. However,
unlike Section 156(3) of the Cr.P.C., any
Magistrate, before ordering investigation
under Section 175(3) of the BNSS, is
required to:
a. Consider the application,
supported by an affidavit, made by the
complainant to the Superintendent of
Police under Section 173(4) of the BNSS;
b. Conduct such inquiry as he
thinks necessary; and
c. Consider the submissions made
by the police officer.
30. Sub-section (4) of Section 175 of
the BNSS is a new addition to the scheme
of investigation of cognizable cases when
compared with the scheme previously
existing in Section 156 of the Cr.P.C. It
provides an additional safeguard to a
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public servant against whom an
accusation of committing a cognizable
offence arising in the course of discharge
of his official duty is made. The provision
stipulates that any Magistrate who is
empowered to take cognizance under
Section 210 of the BNSS may order
investigation against a public servant
upon receiving a complaint arising in
course of the discharge of his official duty,
only after complying with the following
procedure:
a. Receiving a report containing
facts and circumstances of the incident
from the officer superior to the accused
public servant; and
b. Considering the assertions made
by the accused public servant as regards
the situation that led to the occurrence of
the alleged incident.
31.A comparison of Section 175 (3)
of the BNSS with Section 156(3) of the
Cr.P.C. indicates three prominent changes
that have been introduced by the
enactment of BNSS as follows:
a. First, the requirement of making
an application to the Superintendent of
Police upon refusal by the officer in charge
of a police station to lodge the FIR has
been made mandatory, and the applicant making
an application under Section 175(3) is required to
furnish a copy of the application made to the
Superintendent of Police under Section 173(4),
supported by an affidavit, while making the
application to the Magistrate under Section
175(3).
b. Secondly, the Magistrate has
been empowered to conduct such enquiry
as he deems necessary before making an
order directing registration of FIR.
c. Thirdly, the Magistrate is required
to consider the submissions of the officer
in charge of the police station as regards
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the refusal to register an FIR before
issuing any directions under Sec.175(3).
11. Further, the Hon’ble Apex Court after
considering the case of ‘Priyanka Srivasthava Vs. State
of U.P.’ and ‘Babu Venkatesh Vs. The State of
Karnataka’, explained the object to change brought
under BNSS and at para-34 and 35, concluded that:
34. In light of the judicial
interpretation and evolution of Sec.156(3)
of the Cr.P.C. by various decisions of this
Court as discussed above, it becomes clear
that the changes introduced by Section
175(3) of the BNSS to the existing scheme
of Section 156(3) merely codify the
procedural practices and safeguards which
have been introduced by judicial decisions
aimed at curbing the misuse of invocation of
powers of a Magistrate by unscrupulous
litigants for achieving ulterior motives.
35.Further, by requiring the
Magistrate to consider the submissions
made by the concerned police officer before
proceeding to issue directions under Section
175(3), BNSS has affixed greater accountability
on the police officer responsible for registering
FIRs under Section 173. Mandating the
Magistrate to consider the submissions of the
concerned police officer also ensures that the
Magistrate applies his mind judicially while
considering both the complaint and the
submissions of the police officer thereby
ensuring that the requirement of passing
reasoned orders is complied with in a more
effective and comprehensive manner.
12. Thus, before proceeding for direction under
Sec.175(3) of BNSS, the court is required to consider the
application made by the complainant under Sec.175(3) of
BNSS with application made to the Superintendent of
Police under Section 173(4) of BNSS, supported by an
sworn affidavit, hold an inquiry and consider the
submission of the Police officer as regards to the refusal to
register the FIR.
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13. In the instant case, the accused no.1 and
5 are the elected representatives and Sec.175(4) of
BNSS contemplates twin conditions for compliance,
before ordering for investigation in the complaint
against a public servant arising in course of the
discharge of official duties. At this juncture, it is
pertinent to mention that in the decision reported in
2026 SCC Online SC 114 (XXX Vs. State of Kerala),
the Hon’ble Apex Court examined the relative scope
of Sec.175(3) and 175(4) of BNSS elaborately in the
light of ‘Lalitha Kumari Vs. State
of U.P.,’ with regard to preliminary inquiry, legal
position evolved in the case of ‘Om Prakash
Ambadkar’ supra and safeguards profounded in the
case of ‘Priyanka Srivasthava Vs. State of U.P’ and
held that Sec.175(4) of BNSS provides additional
protective layer in the cases of public servants and
all the mandatory requirements under Sec.175(3)
BNSS must be complied, before ordering for
investigation; and Sec.175(3) and 175(4) BNSS are
not isolated silos, but must read in harmony with
Section 175(4) forming extension of Sec.175(3) of
BNSS.
14. Further, in the the said decision, the
Hon’ble Apex Court, clarified the requirements of
valid affidavit before the court, under Sec.175(3) of
Cr.P.C. and at para-41 held that:
41. We make it clear that an affidavit,
such as the one referred to in subsection (3)
of Section 175, must fulfil the conditions
provided in Section 333, BNSS which reads
as follows:
“333. Authorities before whom
affidavits may be sworn.—(1) Affidavits to
be
used before any Court under this Sanhita
may be sworn or affirmed before—
(a) any Judge or Judicial or Executive
Magistrate; or
(b) any Commissioner of Oaths
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appointed by a High Court or Court of
Session; or
(c) any notary appointed under the
Notaries Act, 1952 (53 of 1952).
(2) Affidavits shall be confined to, and
shall state separately, such facts as the
deponent is able to prove from his own
knowledge and such facts as he has
reasonable ground to believe to be true, and
in the latter case, the deponent shall clearly
state the grounds of such belief.
(3) The Court may order any
scandalous and irrelevant matter in the
affidavit to be struck out or amended.”
15. In the case on hand, the complainant
submitted the detailed complaint to Station House
Officer on 21.01.2025; and complaint with his
affidavit to the Superintendent of Police, Karnataka
Lokayuktha on 30.07.2025, alleging the commission
of offences by the accused and others under
Sec.403, 406, 409, 420 and 426 of IPC r/w
Sec.13(1)(a) and 13(2) of PC Act and such
complaint is not considered by the said authority.
But, such affidavit produced before the
Superintendent of police was not duly verified by
the complainant. The complainant presented the
memorandum of complaint under Sec.175(3) r/w
Sec.2(1)(h) of BNSS, before this Court with sworn
affidavit narrating the illegalities, which said to
have been resulted in alleged offences, which are
highlighted by the learned Senior Counsel during
hearing. However, on perusal of the said Affidavit, it
does not show the affirmation/verification of facts
as required under Sec.333(2) of BNSS. So, the
required condition for valid affidavit under law is
not fulfilled by the complainant to proceed under
Sec.175(3) of BNSS and on such defective affidavit
of complainant, the court cannot proceed under
Sec.175(3) of BNSS. Under such circumstances,
having considering the nature of allegation made in
the memorandum of complaint and documents
produced, the Court inevitably required to proceed
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under Sec.223 of Cr.P.C. Hence, I proceed to pass the
following:
ORDER
For enquiry under Sec.223 of BNSS
by 28.08.2026."
(Emphasis added)
8. The case at hand presents a rather peculiar
situation. The allegations are not of a private squabble
dressed in criminal colours, nor do they concern facts
resting entirely within the knowledge of the
complainant. They concern alleged acts of corruption,
misuse of public office, conferment of an undue
advantage and manipulation of the process of allotment
of valuable public property. The complaint alleges that a
Trust, whose avowed objects are secular and extend to all
persons irrespective of caste, creed or religion, projected itself
as falling within the Scheduled Caste category; secured
allotment of a civic amenity site under that category; obtained
a concession of 50% in the lease amount; thereafter secured
an alternative and allegedly more valuable site; and continued
to retain the property despite non-utilisation. The concerned
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Court itself notices that the documents placed before it disclose
that the Trust is a charitable and secular Trust and that the
concession and alternative allotment had, in fact, followed.
9. If these are the allegations, the question is not merely
whether the complainant can step into the witness box and
establish what he knows. The real question is, whether what
he does not and cannot know , without the aid of
investigation, can ever be unearthed through an enquiry under
Section 223 of the BNSS. Who processed the application?
On what basis was the Trust treated as falling within the
Scheduled Caste category? What were the notings in the
official file? Who recommended the concession? How did
the request for an alternative site travel through the
corridors of the BDA and culminate in a decision within
the period alleged? Whether there was any meeting of
minds between the trustees and public servants;
whether any public servant abused his position; whether
any undue advantage was conferred; and whether the
official record corroborates or demolishes the
allegations—these are all matters lying beyond the reach
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of a private complainant. They lie buried, if at all, in
official records and in the circumstances surrounding
official decision-making. Their excavation is the province
of investigation, not merely of an enquiry by the Court.
10. It is here that the distinction between Sections 175(3)
and 223 of the BNSS assumes significance. The two provisions
cannot be treated as interchangeable procedural pathways
leading to the same destination. Section 223 of the BNSS
operates in the realm of taking cognizance upon a complaint
and examination of the complainant and witnesses. Section
175(3) of the BNSS, on the other hand, enables the Court to
set the investigative machinery in motion where the nature of
the allegations demands collection of material which the
complainant cannot reasonably be expected to produce.
Therefore, the choice between the two is not one of
convenience; it must bear a rational nexus to the nature of the
allegations and, more importantly, to the manner in which the
truth behind those allegations can be unearthed.
11. The concerned Court was itself alive to this position.
It noticed the allegations, examined the documents and
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recorded the statutory requirements engrafted into Section
175(3) of the BNSS. It also noticed the additional protective
layer contained in Section 175(4) of the BNSS, where the
accusation concerns a public servant in relation to acts arising
in the course of discharge of official duties. Having travelled
thus far, the concerned Court halted only at the threshold of
the affidavit. According to it, the affidavit accompanying the
complaint did not contain affirmation or verification in
conformity with Section 333(2) of the BNSS and, therefore, the
Court could not proceed under Section 175(3) of the BNSS.
The consequence it drew was to abandon that route altogether
and proceed under Section 223 of the BNSS.
12. It is this leap, from noticing a defect in an affidavit to
altogether changing the statutory course of the proceeding
that, in my considered view, cannot commend acceptance.
There is a world of difference between non-compliance
incapable of cure and a procedural defect capable of
rectification . The complainant could have been directed to
cure the defect and place a properly verified affidavit before the
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Court. Procedure is undoubtedly the handmaid of justice;
it cannot be permitted to become its hangman.
13. The safeguards engrafted into Section 175(3) of the
BNSS are undoubtedly mandatory in their purpose. They have
been placed there, to prevent the criminal process from being
casually unleashed at the instance of unscrupulous
complainants. The requirement of approaching the police
hierarchy, supporting the application by an affidavit, permitting
such enquiry as the Magistrate considers necessary and
considering the submissions of the police officer are all
intended to ensure application of judicial mind before the
coercive machinery of criminal investigation is set in motion.
The order itself notices these safeguards and the principles
governing them. But a safeguard against abuse cannot be
transformed into a shield against investigation of an
otherwise investigable allegation. The procedural filter
cannot become a procedural fortress.
14. There is yet another facet. Allegations of
corruption involving public servants occupy a peculiar
field. Proof of corruption seldom lies neatly packaged in
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the hands of a complainant. Its footprints ordinarily lie
scattered across official files, notings, correspondence,
movement of proposals, decisions of committees and the
conduct of those who participated in the decision-making
process. To expect a private complainant to unravel this
entire chain through a complaint enquiry would, in an
appropriate case, amount to asking him to prove what
only an investigation can discover. An enquiry cannot be
made a substitute for investigation where investigation
itself is indispensable to discover the evidence.
15. Therefore, the concerned Court ought not to have
shut the door of Section 175 of the BNSS, merely because the
affidavit presented by the complainant was wanting in the
manner of verification. The appropriate course was to direct
rectification of the affidavit and thereafter proceed sequentially
in accordance with Sections 175(3) of the BNSS and, wherever
attracted, 175(4) of the BNSS and the applicable provisions of
the Prevention of Corruption Act. Every statutory safeguard
must undoubtedly be observed; not one may be
sacrificed. But equally, every safeguard must serve the
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purpose for which the Parliament engrafted it and
cannot be employed to defeat the very process that the
statute otherwise permits.
16. The allegations may ultimately prove true; they may
equally prove unfounded. That is not a conclusion for this Court
to pronounce at this embryonic stage. What cannot be
countenanced is that allegations which, by their very nature,
require investigation should remain uninvestigated merely
because an affidavit accompanying the complaint suffered from
a defect capable of cure. The truth cannot be permitted to
become a casualty at the altar of an imperfect
verification clause.
17. The impugned course adopted by the concerned
Court, therefore, cannot be sustained. The defect in the
affidavit may be directed to be cured; the safeguards
commanded by Sections 175(3) and 175(4) of the BNSS must
thereafter be scrupulously followed; and the concerned Court
must then consider the prayer for investigation on its merits,
uninfluenced by the technical defect which occasioned the
impugned order.
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18. It becomes apposite to refer to the judgment of the
Apex Court in the case of S.N. VIJAYALAKSHMI v. STATE OF
1
KARNATAKA , wherein the Apex Court observes as follows:
“….. ….. …..
44. A further contention urged by the appellants is
that the procedure laid down in Priyanka
Srivastava (supra) has not been followed by the
complainant before filing the PCR. As per the guidelines
prescribed in Priyanka Srivastava (supra), any person
aggrieved by non-registration of an FIR by the police is
required to approach the concerned Superintendent of
Police and on his failure to take action, can move before
the Magistrate concerned under Section 200 of
the CrPC by filing a private complaint. In this case, the
complainant approached the police on 12.05.2022
which refused to register an FIR. Thereafter, the
complainant approached the ACMM by filing the PCR
on 20.07.2022, and while such private complaint
was pending on the file of the ACMM, the
complainant approached the Deputy Commissioner
of Police, Bangalore City. On nothing being done
even then, faced with such inaction, the
complainant finally filed the requisite affidavit
before the ACMM. Subsequently on 21.07.2023, the
ACMM referred the PCR to the police, culminating
into the underlying FIR .
45. The High Court has taken a view that this is a
curable defect since before the referral order on the
PCR by the ACMM for registering an FIR under
Section 156(3) of the CrPC, the required formalities
were done. In our considered opinion, this approach
cannot be labelled erroneous. The requirement
under Priyanka Srivastava (supra) is to safeguard
the rights of the citizenry and to put a stop to unjust
criminal action and filing of vexatious applications
to settle personal scores. Thus, such requirement
1
2025 SCC OnLine SC 1575
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could not be said to be a mere formality. One of us
(Sudhanshu Dhulia, J.) as a Single Judge of the
Uttarakhand High Court, in Sachin Chamoli v. State of
Uttarakhand , 2016 (3) NCC 68, where no affidavit had
been filed, held that filing of affidavit was a mandatory
requirement as per Priyanka Srivastava (supra). In Babu
Venkatesh v. State of Karnataka , (2022) 5 SCC 639, this
Court held that the Magistrate concerned should not have
entertained the complaint/application under
Section 156(3) of the CrPC therein, as it was not
supported by an affidavit. In the case at hand, before
the ACMM passed the referral order, the complaint
was backed by an affidavit . In Ramesh Kumar
Bung v. State of Telangana , 2024 SCC OnLine SC 264, the
Court, while stating that the directions in Priyanka
Srivastava (supra) are mandatory, declined to interfere
with the order(s) impugned therein, but noted that the
informant had filed the affidavit belatedly. To complete
the discussion on this aspect of the law, we may also refer
to our judgment in Kanishk Sinha v. State of West
Bengal , 2025 SCC OnLine SC 443 where, speaking
through Sudhanshu Dhulia, J., this Court upheld an order
of the Calcutta High Court, to the effect that the direction
in Priyanka Srivastava (supra) to file the affidavit, was
prospective in nature. Therefore, if after the filing of
the complaint/application but before any order
thereon is passed, such requirement is allowed to
be fulfilled/complied with by the complainant, it
would not, in our view, run counter to the law
exposited in Priyanka Srivastava (supra). We sum
up our conclusions on this score as follows : (i)
Directions issued in Priyanka Srivastava (supra) are
mandatory; (ii) Guidelines laid down in Priyanka
Srivastava (supra) operate prospectively; (iii) Non-filing
of the supporting affidavit is a curable defect, but
must be cured before the Magistrate passes any
substantive order on the complaint/application,
and; (iv) If the Magistrate proceeds without the requisite
affidavit, such order/any consequential
orders/proceedings can be quashed on the sole ground of
non-compliance with Priyanka Srivastava (supra).
46. In the above view, the Impugned Judgment does
not militate against the law laid down in Priyanka
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Srivastava (supra). That said, and as reasoned above, our
interference with the Impugned Judgment is necessitated
as the ingredients of offences apropos which cognizance
was taken by the ACMM are not made out.
The dicta in State of Haryana v. Bhajan Lal , 1992 Supp
(1) SCC 335; Vesa Holdings Private Limited v. State of
Kerala , (2015) 8 SCC 293, and; Gulam Mustafa v. State of
Karnataka , (2023) 18 SCC 265 also impel this Court to
intervene.”
(Emphasis supplied)
The Apex Court observes that non-filing of an affidavit in
support of an application under Section 156(3) of the Cr.P.C. is
undoubtedly a defect, but a defect which is curable in
character . The curability of the defect, however, does not
dispense with the requirement itself. The defect must
necessarily be cured before the Magistrate proceeds to
pass any substantive order on the complaint or directs
investigation by the Police. Thus, what the law frowns
upon is not the initial omission by itself, but the exercise
of substantive jurisdiction under Section 156(3) of the
Cr.P.C. / Section 175(3) of the BNSS, without the
procedural safeguard of a supporting affidavit being
brought into place.
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19. Following the law laid down by the Apex Court in the
case of S.N.VIJAYALAKSHMI supra , the High Court of Madras
in the case of ARUL GERALD PRAKASH v. STATE OF TAMIL
2
NADU , observes as follows:
“38. The Court made it clear that the immediate
issue in this revision is whether the learned
Magistrate was justified in rejecting the Section
175(3) BNSS petition for want of affidavit, in light
of the Hon'ble Supreme Court’s pronouncement in
S.N. Vijayalakshmi & Others v. State of Karnataka &
Another , 2025 INSC 917 , that non-filing of an
affidavit is a curable defect. The broader factual
controversies over resolutions, signatures, alleged
fabrication and rival complaints are matters to be
examined by the appropriate forum once the procedural
hurdle is removed.
39. Points for Determination:
In light of the pleadings and submissions, the
following points arise for consideration:
(i) Whether non-filing of a supporting affidavit
along with a petition under Section 175(3) BNSS,
2023, is a curable defect and whether the learned
Judicial Magistrate-II, Nagercoil, erred in dismissing
the petition in Crl.M.P.No.984 of 2025 solely on that
ground.
(ii) Whether, on the materials placed, a prima facie
case of commission of an offence under Section 301 of the
Bharatiya Nyaya Sanhita, 2023, and the TNPPDL Act is
disclosed, warranting registration of FIR and investigation.
(iii) Whether a church cemetery can be treated as a
mere property of the Bishop or Parish Priest, or whether it
is in the nature of a sacred trust / endowment held for the
2
Crl.R.C.(MD) No.1181 of 2025, Disposed on 16.12.2025
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benefit of the faithful, thereby limiting the authority of
church administrators to unilaterally demolish existing
graves/tombs.
(iv) To what directions the learned Magistrate and
the first respondent police are to be subjected in the facts
and circumstances of this case.
Discussion and Findings:
40. As regards Point (i), the record shows that
the petition under Section 175(3) BNSS was
dismissed by the learned Judicial Magistrate solely
on the ground that it was not accompanied by a
supporting affidavit. No opportunity was given to
the petitioners to cure the defect, nor was the
substance of the allegations evaluated.
41. In S.N. Vijayalakshmi & Others v. State of
Karnataka & Another, 2025 INSC 917 , the Hon’ble
Supreme Court has categorically held that non-filing of a
supporting affidavit is a curable defect, and that
before passing any substantive order on a
complaint/application of this nature, the Magistrate
must afford an opportunity to file such affidavit.
42. In view of the binding nature of the
Hon'ble Supreme Court’s pronouncement, this Court
is constrained to hold that the learned Judicial
Magistrate-II, Nagercoil, was not justified in
dismissing Crl.M.P.No.984 of 2025 outright for want
of supporting affidavit. The defect was curable and
the petitioners ought to have been given an
opportunity to file the affidavit before passing any
order on merits.
43. Accordingly, Point (i) is answered in favour of
the petitioner. The impugned order dated 19.05.2025 in
Crl.M.P.No.984 of 2025 is liable to be set aside on this
ground alone.”
(Emphasis supplied)
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The High Court of Madras observes that non-filing of an
affidavit, by itself, is not an incurable infirmity which would put
an end to the proceedings. It is a defect capable of cure.
The Court is, therefore, required to afford an opportunity
to the complainant to cure such defect by filing the
requisite affidavit before proceeding to consider the
application on its merits and pass any substantive order
thereon. In other words, the absence of an affidavit may
halt the proceeding until the defect is cured, but cannot
bring the proceeding itself to an end.
20. If the law declared by the Apex Court and reiterated
by the High Court of Madras is that even complete non-filing
of an affidavit is a defect capable of cure, the sequitur
becomes irresistible. A defective affidavit, as obtains in the
case at hand, cannot be placed on a pedestal higher than
the complete absence of one and branded incurable. If
absence itself admits of cure, an imperfection in what is
already placed on record must, a fortiori , admit of
rectification.
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21. This becomes all the more significant in the peculiar
facts of the case. The concerned Court had not reached the
stage of directing investigation under Section 175(3) of the
BNSS. The statutory journey contemplated under Sections
175(3) and 175(4) of the BNSS was yet to be undertaken. No
substantive order setting the investigative machinery in motion
had been passed. The defect in the affidavit, therefore, stood
at a stage where it could effortlessly have been cured by
directing the complainant to place on record an affidavit
conforming to the requirements of law before the Court
proceeded any further.
22. The concerned Court, instead of permitting such
rectification and thereafter traversing the statutory
route ordained under Section 175 of the BNSS, allowed
itself to be arrested by the technical infirmity in the
affidavit and diverted the proceeding altogether to an
enquiry under Section 223 of the BNSS. Such an
approach places procedure on a pedestal above purpose.
The requirement of an affidavit is undoubtedly a
statutory safeguard and must be scrupulously complied
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with before any substantive order directing investigation
is made; but a safeguard intended to ensure
responsibility in invocation of the criminal process
cannot be converted into a stumbling block, which
extinguishes that very process even before the stage for
its invocation arrives.
23. The concerned Court, therefore, ought not to have
been bogged down by the hyper-technicality of an imperfectly
verified affidavit. It ought to have afforded the complainant an
opportunity to cure the defect and, upon such cure, proceeded
further in the manner mandated under Sections 175(3) and
175(4) of the BNSS. A curable defect calls for a cure, not
the abandonment of the statutory course itself.
24. I, therefore, deem it appropriate to set aside the
operative portion of the impugned order insofar as it directs an
enquiry under Section 223 of the BNSS. The concerned Court
shall afford an opportunity to the complainant to cure the
defect in the affidavit and thereafter proceed with the complaint
strictly in accordance with the procedure obtaining under
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Section 175 of the BNSS, including compliance with the
safeguards engrafted therein, wherever applicable.
25. It is made clear that this Court has expressed no
opinion on the merits of the allegations. Whether the complaint
ultimately warrants reference for investigation is a matter for
the concerned Court to determine after following the procedure
prescribed in law.
26. For the aforesaid reasons, the following:-
O R D E R
(i) Criminal petition is allowed in part .
(ii) The order dated 11-08-2026 passed by the LXXXI
Additional City Civil and Sessions Judge, Bengaluru
City in P.C.R.No.28 of 2025, stands obliterated,
insofar as it directs enquiry under Section 223 of
the BNSS.
(iii) The matter is remitted back to the concerned Court
to proceed with the case by following the procedure
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contained under Section 175 of the BNSS, bearing
in mind the observations made in the course of the
order.
Sd/-
(M.NAGAPRASANNA)
JUDGE
NVJ
List No.: 2 Sl No.: 26