Section 528 BNSS

Source: Supreme Court  

Why in News? 

Recently, Justices Sanjay Karol and Prashant Kumar Mishra of the Supreme Court cautioned High Courts against mechanically dismissing quashing petitions under Section 482 CrPC by relying solely on the contents of the FIR. The Court emphasized that the background, context, and possibility of retaliatory motives behind the filing of the FIR must also be considered. This ruling came while criticizing the Punjab & Haryana High Court for refusing to quash an FIR without proper judicial application of mind. 

• The Supreme Court held this in the matter of Nitin Ahluwalia v. State of Punjab & Anr (2025). 

What was the Background of Nitin Ahluwalia v. State of Punjab & Anr (2025)? 

• Nitin Ahluwalia, an Australian citizen of Indian origin, married Tina Khanna Ahluwalia, an Austrian citizen, according to Hindu rites on November 29, 2010, in Panchkula, Haryana. The couple began their married life in Melbourne, Australia, on 18th December, 2010, and had a daughter on 29th September 2012. 
• On 30th June, 2013, Tina left Australia without warning, taking their daughter to Austria. Nitin then initiated proceedings under The Hague Convention on the Civil Aspects of International Child Abduction, 1980, seeking his daughter's return to Australia.  
• The District Court of Vienna Inner City ordered on 8th January 2014, that the child be returned to Australia, finding that differing views on parental roles and the mother's desire to relocate for the child's education were the points of contention. 
• Tina appealed this decision, but both the Vienna District Civil Court and the Supreme Court of Austria rejected her appeals.  
• The Austrian courts consistently held that Nitin had custody rights and that Tina's concerns about the child's well-being did not meet the standards for serious risk. 
• The courts clarified that the order was for return to Australia, not separation from the mother, and nothing prevented Tina from returning with the child. 
• Tina then sought a stay of enforcement proceedings, claiming settlement talks were underway, but the Vienna court rejected this application on May 5, 2014. The court noted that Tina was not serious about returning, given the conditions she attached to her potential return. 
• On 1st April, 2016, the Federal Circuit Court of Australia granted Nitin a divorce on grounds of irretrievable breakdown of marriage, with effect from 4th April, 2016. This order was made after proper service to Tina in India. 
• On 4th May, 2016, just one month after the divorce decree, Tina lodged a complaint with the Senior Superintendent of Police, SAS Nagar, alleging dowry demands and physical and emotional torture. Based on this complaint, FIR No. 65 of 2016 was registered on December 7, 2016, covering the alleged period from November 29, 2010, to May 4, 2016. 

What were the Court’s Observations? 

• The Supreme Court observed that while allegations in an FIR generally warrant investigation, High Courts cannot adopt a mechanical approach when adjudicating quashing petitions under Section 482 of the Code of Criminal Procedure.  
• The Court emphasised that judicial minds must apply themselves to given facts in accordance with law, requiring appreciation of the background circumstances in which an FIR is filed. 
• The Court noted that despite being separated from her husband for almost three years, Tina filed the police complaint only after the divorce decree was granted in Nitin's favour. The timing raised questions about the genuineness of the complaint, particularly when viewed alongside two Austrian court orders directing her to return the child to Australia. 
• The Court found Tina's conduct questionable, noting that despite clear court orders in Austria, the child had not been returned to Australia. The Court observed that when divorce papers needed to be served, service was effected in India, casting doubt on Tina's earlier claims about the child being socially integrated in Austria. 
• The Court particularly noted the inconsistency in Tina's complaint, where she expressed apprehensions about potential child abduction by Nitin, when it was actually proven in Austrian courts that she had unilaterally removed the child from joint custody. The Court also observed that the alleged period of cruelty extended beyond the duration of the marriage, questioning how such claims could be sustained. 
• The Court concluded that the FIR appeared to be a retaliatory measure and counterblast against the favourable orders obtained by Nitin in foreign courts. Referencing recent precedents, the Court held that the allegations did not reveal the necessary ingredients for offences under Section 498-A of the Indian Penal Code, which requires cruelty with specific intentions such as causing grave injury or driving the victim to suicide. 
• The Court determined that allowing the FIR to proceed would constitute an abuse of the process of law, falling under parameter 7 of the principles established in State of Haryana v. Bhajan Lal. Consequently, the Court quashed both the Punjab and Haryana High Court's judgment and the underlying FIR. 

What is Section 528 of Bharatiya Nagarik Suraksha Sanhita (BNSS) ? 

• Statutory Provision: Section 528 of BNSS states that nothing in this Sanhita shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Sanhita, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice. 
• Nature of Powers: This section does not confer any new inherent power on the High Courts but only recognizes and preserves the fact that High Courts already possess inherent powers under the constitutional scheme. 
• Three-fold Purpose: Section 528 enumerates three specific purposes for which inherent powers may be exercised by High Courts. The first purpose is to make orders necessary to give effect to any order under the Code. The second purpose is to prevent abuse of the process of any court. The third purpose is to secure the ends of justice. 
• Limitations on Exercise of Inherent Powers: The inherent powers of High Court cannot be invoked to quash proceedings in police investigation consequent upon an FIR made in a cognizable case or to interfere with statutory rights of police to investigate. Courts cannot quash investigation merely because the FIR does not disclose any offence when investigation could be conducted based on other materials. The power cannot be used to enquire about reliability or genuineness of allegations made in FIR or complaint. 
• Procedural Restrictions: Inherent jurisdiction can only be invoked against final orders and not against interlocutory orders. The power cannot be exercised to order stay of arrest of accused during investigation. 
• Bail-related Limitations: The inherent power under Section 528 cannot be used by High Court to reopen or alter an order after disposing of a bail petition decided on merits. Bail cannot be granted by virtue of Section 528 alone. 
• Quashing of Proceedings: Following the Supreme Court ruling in R.P. Kapoor v. State of Punjab (1960), inherent jurisdiction can be exercised to quash proceedings where there is legal bar against institution or continuance of proceedings. It can also be invoked where allegations in FIR or complaint do not constitute the offence alleged. Additionally, it applies where there is no legal evidence adduced in support of charge or evidence adduced clearly fails to prove the charge. 
• Judicial Precedents: In M/s Pepsi Food Ltd. v. Special Judicial Magistrate (1998), the Supreme Court held that fresh investigation or re-investigation after filing of chargesheet can be ordered under inherent powers to secure ends of justice. In Sakiri Vasu v. State of U.P (2008), the Court cautioned against entertaining petitions if FIR remains unregistered, advocating for alternative remedies. In Bhisham Lal Verma v. State of Uttar Pradesh (2023), the Court ruled that second petition under inherent powers would not be maintainable on grounds available for challenge during first petition.