THROUGH the judgement in the case Rahul Gandhi v. State of UP and Another, delivered on September 26, 2025, Justice Sameer Jain, at the Allahabad High Court has ruled that if any application under section 173(4) of BNSS, 2023 is moved against an individual then before passing order to register the case, and to investigate the matter, it is necessary for the Magistrate concerned to record the finding whether any cognisable offence against the said individual is made out or not as for registration of the FIR and to investigate the matter, it is necessary that a cognisable offence is made out.

 

This Criminal Revision has been filed with a prayer to set aside the impugned order of July 21, 2025 passed by the Additional Sessions Judge/Special Judge, (M.P./M.L.A.) Court No. 5, Varanasi in Cr. Revision 61/2025 under sections 147, 148 and 152 of BNSS-2023 at Police Station, Sarnath, Varanasi. On September 26, 2024, Opposite Party-2, Satendra Kumar Tripathi moved an application under section 173(4) BNSS against the Revisionist –Rahul Gandhi before the concerned Magistrate. According to the application of September 26, 2024, the revisionist Rahul Gandhi, the Leader of Opposition in Lok Sabha, during his USA visit, gave highly objectionable statement that there is insecure environment for Sikh community in India and whether they will be permitted to follow their religious traditions or not and Sikh community also raised objection on the statement given by the revisionist because his statement was for promoting animosity between the groups and the statement given by him was provocative.

 

In the opinion of the complainant Tripathi, the statement by the revisionist was the act of endangering the sovereignty of the country and was attempt to wage war against Govt. of India and revisionist conspired for civil war. It is further mentioned in the application of September 26, 2024 that on December 14, 2019 in Delhi also revisionist during agitation against CAA in a rally gave such speech due to which more than 100 persons lost their lives. In the same application Opposite Party-2, Tripathi made a prayer to direct the concerned Police Station Officer to lodge FIR against the revisionist and investigate the matter. On November 28, 2024, the Magistrate dismissed the application moved by Opposite Party-2 under section 173(4) BNSS on the ground that as the revisionist gave the statement outside India, therefore in view of section 208 BNSS sanction was necessary for registration of the case against him which is not on record and with regard to the speech of December 14, 2019 delivered by the revisionist in Delhi during CAA agitation, prima facie no cognisable offence is made out against him.

 

Against the order of November 28, 2024, opposite party- 2 filed criminal revision before Sessions Judge, who by impugned order of July 21, 2025 allowed his revision and remanded the matter to Magistrate for decision again. Though the impugned order of July 21, 2025, however, it reflects, it is remand order but considering the fact that while passing the same, the lower revisional court allowed the revision filed by the opposite party No. 2 after disturbing the finding recorded by the Magistrate, therefore, it cannot be said that the said order is an interlocutory order and therefore, in view of this Court against the impugned order of July 21, 2025, this revision is maintainable. From the record, it is seen that on September 26, 2024, opposite party-2 moved an application against the revisionist, who is Leader of Opposition in the Lok Sabha under section 173(4) BNSS on the ground that the revisionist delivered a statement in USA and considering statement, he committed offences, punishable under sections 147, 148 and 152 BNSS and therefore, a direction be given to lodge FIR against him and to investigate the matter. By order of November 28, 2024, when opposite party-2 filed criminal revision before the Sessions Court, then lower revisional court passed impugned order on July 21,2025, allowed the revision filed by him and set aside the order of November 28, 2024 passed by the Magistrate and remitted back the case to the Magistrate for fresh decision on the ground that however, under section 208 BNSS the observation made by the lower revisional court cannot be said to be illegal.

 

Even the counsel for the revisionist admitted that sanction is not required under section 208 BNSS for registration and investigation of the case. In this revision, it is to analyse whether it was necessary for the revisional court to give finding whether any cognisable offence is made out against the revisionist or not while passing the impugned order on July 21, 2025 and whether this HC at this stage can give such finding or not. According to section 438 of BNSS, the HC or Court of Sessions may check the correctness, legality or propriety of any finding recorded by the inferior court. Therefore, section 438 BNSS itself suggests that revisional power of the HC and court of sessions is limited to check the correctness, legality or propriety of any finding recorded by the inferior court.

 

The Supreme Court has observed in the judgement of the case- Amit Kapoor v. Ramesh Chander-(1980) 1 SCC 43, that jurisdiction of the Court under section 397 CrPC can be exercised so as to examine correctness, legality or propriety of an order passed by the trial court or inferior court as the case may be. It has been further held that this power is very limited one. The Supreme Court has also observed that legality, propriety or correctness of an order passed by the Court is the very foundation of exercise of its jurisdiction under section 397 CrPC (section 438 BNSS). It appears, it was incumbent upon the lower revisional court to check the correctness and legality of the order of November 28, 2024 passed by the Magistrate concerned and as according to the revisional court, the finding recorded by the Magistrate was erroneous, therefore, the lower revisional court rightly set aside the order of November 28, 2024 and remanded the matter and therefore, it cannot be said that while passing the impugned order July 21, 2025, lower revisional court committed any illegality and hence, this application is without merit and is being dismissed.