Magistrate’s Power to Order Investigation under Section 175(3) of the BNSS: From Judicial Discretion to Procedural Rigidity

Introduction

Bhartiya Nagarik Suraksha Sanhita, 2023 (‘BNSS’) has superseded the erstwhile Criminal Procedure Code, 1973 (‘CrPC’), by bringing out various changes in the criminal justice procedure. While most of the changes only concern the rearrangement of extant provisions, there are certain substantive changes introduced to the law. Registration of an FIR is one such area where the law has been slightly changed, reflecting the judicial pronouncements delivered in that regard. Section 175(3) of BNSS empowers the magistrate to order an investigation and registration of an FIR on the basis of a complaint disclosing a cognizable offence. As per the amended law, this power can be exercised only after the magistrate ascertains that the complainant wrote to the Superintendent of Police (‘SP’) under Section 173(4) after being aggrieved by the refusal of the officer in charge to register an FIR under Section 173(1). It appears logical to follow the chain of command in case of refusal on the part of the police to file an FIR; however, no such explicit requirement was present in the erstwhile CrPC. It would be incorrect to assert that such a requirement was completely absent from the CrPC, but it was never explicitly engrafted into the law. By statutorily entrenching a safeguard that had hitherto operated as a judicial check against abuse, Section 175(3) of the BNSS blurs the distinction between judicial discretion and jurisdictional competence. It constrains the magistrate’s ability to respond flexibly to police inaction and risks delaying, or altogether foreclosing, access to criminal law remedies in cases involving urgent cognizable offences.

This post traces the amended position of law by making reference to older provisions of the CrPC and examines the rationale behind such legislative clarification with the help of judicial pronouncements. It further assesses the implications of engrafting such preconditions in the criminal procedural law, and makes certain suggestions to further the overarching goal of an efficient and speedy criminal justice system.

Procedure for Filing an FIR: From CrPC, 1973 to BNSS, 2023

Sections 154 & 156 of CrPC, 1973

Section 154 (1) of the CrPC provided for mandatory registration of FIR by the officer in charge of a police station in case the information provided discloses the commission of a cognizable offence. In case of refusal or inaction on the part of such a police officer, the complainant had the recourse to make a written complaint to the SP under sub-section (3) of Section 154. Parallelly, Section 156(3) provided for a safety valve by empowering the magistrate to order an investigation based on a complaint disclosing a cognizable offence. As highlighted earlier, Section 156(3) of CrPC was not qualified with any precondition of complying with the procedure laid down in Section 154(3). In essence, a complainant could directly approach the magistrate without writing to the SP under Section 154(3), and in exceptional circumstances even without approaching the officer in charge under Section 154(1).

Sections 173 & 175 of BNSS, 2023

As opposed to the foregoing procedure, a reading of the new corresponding provisions of BNSS regarding the filing of FIR will reveal a modified procedure. Section 154 and Section 156 of the CrPC correspond to Section 173 and Section 175 of the BNSS, respectively. As per Section 173(1), the officer in charge is still obligated to register an FIR in case of a complaint disclosing the commission of a cognizable offence. Similarly, as per Section 173(4) of the BNSS, the complainant aggrieved by the refusal of the officer in charge to register an FIR can write to the SP. The change, however, has been introduced in Section 175(3) of the BNSS, which now contemplates a precondition that any complaint made to her must be supported by an affidavit evincing compliance with sub-section (4) of Section 173. Thus, there is a clear shift from the procedure contemplated in the CrPC for filing of FIR by invoking the jurisdiction of the concerned magistrate. It can be safely asserted that this change has been brought in by giving due regard to the judgment delivered by the Apex Court in Priyanka Srivastava v. State of UP  (‘Priyanka Srivastava’).

The Priyanka Srivastava Judgment and Its Legislative Afterlife

The Supreme Court (‘SC’) in the Priyanka Srivastava judgment was dealing with a case where multiple frivolous FIRs were filed by the complainant against certain bank officials to arm-twist them to reach a one-time settlement concerning a defaulted loan. The facts of that case clearly evinced abuse of Section 156(3), which was repeatedly invoked by the complainant to register multiple FIRs without even approaching the jurisdictional police station once. Against this backdrop, the division bench of the SC laid down the mandatory requirement for filing of an affidavit along with the complaint made to the magistrate under Section 156(3). The aforesaid affidavit has to clearly spell out the compliance with Section 154(1) and Section 154(3), and the magistrate can only order an investigation under Section 156(3) after being satisfied that the complainant has followed the contemplated chain of command by approaching the police. This safeguard was introduced by the Court to curb the menace of filing frivolous FIRs and also to deter unscrupulous individuals from casually invoking the jurisdiction of the magistrate concerned.

To ensure compliance with this mandatory precondition, a copy of the judgment was circulated amongst all the chief justices of High Courts, session judges, and magistrates. The law laid down in the Priyanka Srivastava judgement was followed by multiple benches of the Supreme Court and various High Courts (refer this, this, this). FIRs were quashed due to non-compliance with the filing of an affidavit or not approaching the concerned police officer before approaching the magistrate under Section 156(3). The precedential value of Priyanka Srivastava was strengthened by the consistent judicial affirmation by different Courts of the country.

Rationale Behind the Changes Brought in the Bharatiya Nagarik Suraksha Sanhita, 2023

The repeated judicial affirmation of the Priyanka Srivastava judgment appears to have influenced the legislative design of Section 175 of the BNSS. Notably, the BNSS Bill, as originally introduced in the Lok Sabha, did not mandate the filing of an affidavit; rather, it merely required the magistrate to consider whether the complainant approached the SP before directing an investigation. The Bill was subsequently referred to the Parliamentary Standing Committee, which recommended the insertion of the affidavit requirement, along with a provision for ordering a preliminary enquiry to prevent the misuse of law. These recommendations were accepted, and the redrafted version of the BNSS Bill incorporated the judicially evolved procedural safeguard into Section 175(3). While neither the Notes on Clauses to the revised Bill nor the Standing Committee’s report makes an explicit reference to Priyanka Srivastava, the SC has acknowledged this legislative linkage in the Om Prakash Ambadkar v State of Maharashtra judgment.

However, there were various judicial verdicts that distinguished the dictum of the Priyanka Srivastava case and refused to be bound by it without appreciating the factual underpinning. The next section will traverse through cases where the law laid down in the Priyanka Srivastava judgment was not followed.

Departures from Priyanka Srivastava: Analysing Judicial Resistance

While Priyanka Srivastava has been widely followed by the courts to impose procedural checks on the invocation of Section 156(3), several decisions have since diluted or distinguished its application. These cases can be classified into two streams, wherein courts have held that: a. once the magistrate exercises judicial discretion, the prior-procedural infirmities can be condoned; and b. the Priyanka Srivastava judgment is fact-specific and does not lay down any absolute rule.  

Once the Magistrate exercises judicial discretion, the prior-procedural infirmities can be condoned

In C Ramesh vs State of Karnataka and Ors, the Karnataka HC found that the averments in the complaint prima facie disclosed a cognizable offence, thereby validating the magistrate’s order made under Section 156(3). The Karnataka HC, further in MN Asha and Ors vs HL Boregowda, held that once a complaint alleges a cognizable offence, the procedural rigours prescribed in Priyanka Srivastava need not be followed.

A more fact-specific departure can be seen in Bina Rani Radhakrishnan Nair v. State of West Bengal, where the Calcutta HC condoned the complainant’s failure to comply with Section 154(3) after the police returned the complaint with a direction to approach the trial court. A fresh complaint was drafted within two hours and filed before the magistrate the very next working day. The Court found it to be condonable and distinguished Priyanka Srivastava's judgment by noting that the latter involved a history of multiple frivolous criminal complaints and abuse of process, which was absent in the instant case.

Similarly, in Ganesh Krishnan vs Ramesh Nanjund Shastri, the Karnataka HC upheld the magistrate’s order directing investigation even though the complainant had bypassed both the officer in charge under Section 154(1) and the superintendent under Section 154(3). While acknowledging procedural irregularity, the Court held that the subsequent investigation by the jurisdictional police and eventual cognizance of the offence by the magistrate could not be invalidated merely on this ground of procedural infirmity.

The Priyanka Srivastava judgment is fact-specific and does not lay down any absolute rule

It is a settled position of law that observations made in judicial precedents must not be read as Euclid’s theorems nor as statutory provisions. Each case exhibits differentiating facts & circumstances, and the Courts must avoid misapplying precedents by ignoring the facts of a case. In SAS Infratech Pvt. Ltd. vs State of Telangana, a division bench of the Supreme Court held that the observations made in the Priyanka Srivastava judgement regarding mandatory filing of an affidavit were made by way of abundant caution to ensure that frivolous complaints are avoided.

Further, in Sujan Multiports Ltd. v. State of Haryana, a Single Judge of the Punjab and Haryana HC held that judgments misconstruing Priyanka Srivastava are not to be treated as binding precedents with respect to the magistrate’s powers under Section 156(3). The Court clarified that Priyanka Srivastava was delivered against a specific factual backdrop involving demonstrable abuse of process, and therefore cannot be read as laying down an absolute precondition for a magistrate passing an order under Section 156(3).

A common string that permeates all the above-quoted decisions is the fact-specific assessment of Priyanka Srivastava's judgment rather than the blanket application of the procedural requirement. It can be argued that the procedural requirement laid down in Priyanka Srivastava must be applied on case-to-case basis to prevent the quashing of FIR merely on the grounds of procedural irregularity that does not result in failure of justice (Condonation of procedural irregularity not resulting in failure of justice, refer: this; this; and this).

Implications of the Codification of Priyanka Srivastava in BNSS, 2023

Section 175(3) of the BNSS has fossilised the once-discretionary procedural requirement that finds its genesis in the Priyanka Srivastava judgment. The safeguard earlier available through judicial flexibility has been replaced with a statutorily mandated procedural sequence, thereby narrowing the circumstances in which magisterial intervention can be invoked at the threshold. This will have far-reaching consequences for complainants who are aggrieved by the callous, and in some cases, antagonistic attitude of the police. At the same time, it is a settled position of law that a complainant ought to exhaust the alternative remedy of approaching the police before moving to the magistrate. If the complainant is allowed to directly approach the magistrate, at the first instance in every case, then it will lead to unintended consequences rather than providing a safeguard. It might lead to harassment of the accused and abuse of the process of law, as evinced in the case of Priyanka Srivastava and other judgments following it.

Nonetheless, a full-bench of Bombay HC in 2009 specifically held that non-compliance with Section 154(1) or 154(3) of CrPC will not divest the magistrate of her jurisdiction under Section 156(3) to order investigation. It is important to clarify that Section 175(3) of the BNSS does not divest the magistrate of jurisdiction to order an investigation in cognizable offences; rather, it regulates the manner in which such jurisdiction is to be exercised by prescribing procedural preconditions. While the Bombay HC acknowledged that the normal course should be to approach the police and exhaust the remedies provided under Section 154(1) & 154 (3), it also recognized that direct recourse to the magistrate may be justified where police inaction risks delay, prejudice, or tampering with evidence. This position was reiterated by another bench of the Bombay HC in 2017, where the complainant directly approached the magistrate under Section 156(3) without exhausting the remedies provided under Section 154(1) and 154(3). The Court held that failure to comply with such procedural formality will not make the order of the magistrate invalid.

The principle emerging from this jurisprudence is that although the magistrate’s jurisdiction to order investigation subsists, the exercise of such jurisdiction has traditionally involved judicial discretion, informed by facts and exigencies of each case. Judicial verdicts that have diverged from a rigid application of Priyanka Srivastava underscore the importance of contextual discretion in preventing procedural requirements from unduly constraining the exercise of magisterial jurisdiction. By subjecting the magistrate’s power to inflexible procedural formalism, the newly introduced Section 175(3) will negatively affect those complainants who are genuinely distressed by the neglect of the police in filing FIRs.

The procedural operation of Section 175(3) must also be assessed in light of constitutional principles. In Maneka Gandhi v. Union of India, the SC held that any procedure established by law must be just, fair, reasonable, and non-arbitrary under Articles 14 and 21 of the Constitution. A rigid procedural requirement that fetters magisterial discretion, irrespective of urgency or factual context, risks undermining substantive access to justice, which is a well-recognized facet of Articles 14 and 21.

While the objective of curbing the registration of frivolous FIRs is laudable, the affidavit requirement must be interpreted liberally and with sufficient flexibility to avoid prejudice to genuine complainants. The Author presents three suggestions in the next section to reduce the prejudice caused to honest complainants due to the procedural rigidity of Section 175(3).

Suggestions

The following modifications can be introduced, either through legislation or judicial interpretation, to reduce the harmful application of Section 175(3) of the BNSS.

A. Magisterial Discretion in ordering registration of FIR: The Priyanka Srivastava judgment itself acknowledges that the power exercised by the judicial magistrate under Section 156(3) [sic] requires application of judicial mind. Thus, the magistrate exercising her power under Section 175(3) of the BNSS, 2023 must be allowed the discretion to order registration of FIR even in cases of non-compliance with the affidavit requirement. Also, as per the Lalita Kumari judgment, the magistrate can order a preliminary enquiry in certain cases to prevent abuse of the criminal justice system. Consequently, the magistrate places reliance on the Action Taken Report (‘ATR’) filed by the police to ascertain whether any cognizable offence has been made out.

B. Non-compliance must be termed as a Procedural Irregularity: It is well-settled that mere procedural irregularities do not vitiate criminal investigation unless they occasion a failure of justice or cause irreparable prejudice to any party. The failure of the complainant to approach the police before the magistrate must be construed as a condonable procedural irregularity, which cannot, by itself, justify quashing of criminal proceedings.

C. Exceptions for certain offences: There are certain heinous offences in the Bhartiya Nyaya Sanhita, 2023, where time is of the essence, and the delay in the criminal justice system can result in failure of justice. The inaction on the part of the police can result in tampering or destruction of evidence, causing severe prejudice to the complainant. To avoid such situations, certain offences, which are of a serious nature or require swift action, must be excepted from the procedural requirement of necessarily approaching the SHO or SP.   

Conclusion

Section 175(3) of the BNSS reflects a legislative preference in favour of rigid procedural formalism over fact-based judicial discretion. It is likely to adversely impact cases where swift police action is required, but an FIR is not registered at the first instance. While the magistrate’s jurisdiction to order an investigation exists, the scope for discretionary assessment based on the facts and circumstances stands significantly constrained under Section 175(3).

At the same time, one must not lose sight of the abuse of this discretion by some disingenuous complainants. To that extent, Section 175(3) will help in curbing registration of frivolous FIRs, but it may be equally disadvantageous to genuine complaints, which may be delayed due to bureaucratic apathy or might not get registered as FIRs at all.

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This article has been authored by Aarya Parihar, a student at Dr. Ram Manohar Lohiya National Law University, Lucknow. It is a part of RSRR's Rolling Blog Series.