Recently, two First Information Reports (FIRs) were registered under Section 223 of the Bharatiya Nyaya Sanhita (BNS) in Indore for violating the District Magistrate’s prohibitory orders issued under Section 163 of the Bharatiya Nagarik Suraksha Sanhita (BNSS). These Sections correspond to Section 188 of the Indian Penal Code (IPC) and Section 144 of the Code of Criminal Procedure (CrPC), respectively. In a bid to make Indore free of beggars, the district administration had issued prohibitory orders on January 2, 2025. One FIR was registered against the person who gave alms to a beggar and the second was registered against a woman beggar’s son who had taken responsibility for preventing her from begging but she was found begging anyway. Both FIRs were filed on the complaint of the Begging Eradication Squad officer.
Registering an FIR
However well-meaning the intentions of the district administration to make the city beggar-free may be, an FIR cannot be registered for the violation of orders issued under Section 163 of the BNSS. A District Magistrate may issue an order under this Section only in “urgent cases of nuisance or apprehended danger when there is sufficient ground for proceeding and immediate prevention or speedy remedy is desirable”. The competent executive magistrate under such circumstances may direct any person to abstain from a certain act and may issue orders to “prevent obstruction, annoyance, or injury to any person lawfully employed, or danger to human life, health or safety, or a disturbance of the public tranquillity, or a riot, or an affray”. Begging in public may cause annoyance or a disturbance to public tranquillity, but it cannot be considered an urgent case of nuisance or apprehended danger.
Even if such an order could be defended, an FIR cannot be registered for the violation. Section 215 of the BNSS (Section 195 of the CrPC) bars such action by the police. Section 215(1)(a) of BNSS says “no Court shall take cognisance (i) of any offence punishable under Sections 206 to 223 (both inclusive but excluding section 209) of the Bharatiya Nyaya Sanhita, 2023…, except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate or of some other public servant who is authorised by the concerned public servant so to do”. Therefore, despite the offence under Section 223 of the BNS being a cognisable one, the District Magistrate would have to approach the Court in writing to lodge a complaint. The police report is barred and therefore, no FIR can be registered.
The Supreme Court held in a case that “Section 195 of the CrPC is in fact a limitation on the unfettered powers of a (judicial) magistrate to take cognisance under Section 190” and he must determine “whether his power of taking cognisance has or has not been taken away by any provision of Section 195(1)”. Charge-sheet on a cognisable offence is not a complaint, it is a police report.
In C. Muniappan and others v. State of Tamil Nadu (2010), the Supreme Court held that the provisions of Section 195 of the CrPC are mandatory and non-compliance of the same would vitiate the prosecution. In State of U.P. v. Mata Bhikh and Others (1994), the Supreme Court held that “the object of this section is to protect persons from being vexatiously prosecuted upon inadequate materials or insufficient grounds by person actuated by malice or ill-will or frivolity of disposition at the instance of private individuals for the offences specified therein”. The Madras High Court in Jeevanandham and Others v. State and Another (2018) held that a police officer cannot register an FIR for any of the offences falling under Section 172 to 188 of the IPC (Section 206 to 223 of the BNS). However, the Court observed that a police officer by virtue of powers conferred under Section 41 of CrPC (Section 35 of the BNSS) will have the authority to take action when a cognisable offence under Section 188 of the IPC is committed in his presence or where such action is required, to prevent such person from committing an offence under Section 188 of IPC.
Even the principles laid down in Lalita Kumari v. Government of Uttar Pradesh and Others (2014) will not apply to registration of FIR for offence under Section 223 of the BNS. In a more recent case, the High Court of Chhattisgarh quashed the FIR registered by the police as a medical graduate had failed to inform the Chief Medical Officer during the COVID-19 pandemic on her arrival in Rajnandgaon, as required by the District Magistrate’s order dated May 2020. An FIR was registered under Section 188 IPC by the Rajnandgaon police on a complaint by the local Chief Municipal Officer. The High Court quashed the FIR and held that no FIR could be registered for offence under Section 188 of the IPC.
Close the cases
The apropos line of action for the Indore police will therefore be to close the cases and intimate the District Magistrate accordingly. In case the District Magistrate wishes to proceed further, he may approach the court in writing as required under Section 215 of the BNSS. Though the State government could either initiate state amendment in the BNSS to loosen the fetters of Section 215(1) BNSS or enact a local law making begging a cognisable offence, it would not be advisable to convert a petty civil offence into a criminal one. This might deter people from giving alms, but punishing the receiver of alms will make the situation worse. Beggars need to be rehabilitated, not prosecuted.
R.K. Vij is former Indian Police Service officer
Published – February 27, 2025 02:19 am IST
