Introduction
The registration of a First Information Report is the threshold act that admits a citizen into the machinery of criminal justice. Without a registered FIR for a cognizable offence, no formal investigation is triggered under law, no evidence is secured under statutory authority, and the informant’s account of the offence remains outside the legal process entirely. The refusal or failure of the police to register an FIR is therefore not a bureaucratic deficiency of the kind that admits of informal correction, it is a denial of access to justice in its most immediate and consequential form. Against this backdrop, the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, which replaced the Code of Criminal Procedure (CrPC), 1973, with effect from 01.07.2024, retains and in certain respects augments the statutory architecture available to an aggrieved person whose complaint at the police station goes unregistered. At the centre of that architecture sits section 175(3) (BNSS), which empowers a Magistrate competent to take cognizance of the relevant offence to order a police investigation when the police have failed or refused to act the direct statutory successor to Section 156(3) of the repealed (CrPC).
The provision is deceptively concise. Its exercise, however, is governed by a body of Supreme Court and High Court authority that has built elaborate procedural and doctrinal conditions around it over several decades. That authority now falls to be read against the BNSS’s own innovations, most significantly the statutory codification of Zero FIR under Section 173(1) and against the persistent gap between the mandatory duty to register FIRs and the practice of refusal that makes Section 175(3) necessary in the first place. This article traces the development of the Section 175(3) power from its origins through the landmark decisions that have shaped its present contours, examines what the (BNSS) has and has not changed, and evaluates whether the Magistrate genuinely functions as an effective gatekeeper of criminal justice for the citizen whose FIR is refused or whether the doctrine developed around this provision has, in its accumulated procedural conditions, partially undone its remedial purpose.
The Mandatory FIR, the Zero FIR, and the Architecture of Refusal
The duty to register an FIR is stated in unambiguous terms. Section 173(1) (BNSS) requires the officer in charge of a police station who receives information about a cognizable offence to reduce it into writing, read it over to the informant, obtain the informant’s signature, and give a copy to the informant forthwith and free of charge. The provision replicates the essential structure of Section 154(1) (CrPC) with one consequential addition: the proviso to Section 173(1) (BNSS) gives legislative form to the Zero FIR, providing that any person may register an FIR at any police station regardless of territorial jurisdiction, with the station receiving it obliged to transfer it to the competent station within fifteen days. This was previously a practice developed administratively recommended by the Justice Verma Committee in 2013 and adopted through circulars by some state forces but had no statutory basis under the (CrPC). The (BNSS) has converted it into a statutory right.
The constitutional significance of the mandatory registration duty was definitively established by the Supreme Court in a full Constitution Bench decision in Lalita Kumari v Government of Uttar Pradesh (2014). Resolving a long-standing conflict among Division Bench decisions, the Court held that registration of an FIR is mandatory when information received by the police discloses a cognizable offence, and that the police officer has no discretion to decline registration on the ground that the information does not appear to warrant investigation. No preliminary inquiry may be conducted before FIR registration except in a limited class of cases like matrimonial disputes, commercial offences, medical negligence, corruption matters, and offences with abnormal delay in reporting and even in those cases the preliminary inquiry must be concluded within seven days, with the reasons recorded in the General Diary. The Court issued mandatory directions to all State Governments and Union Territories to the effect that FIR registration is obligatory. Lalita Kumari case is the foundational constitutional authority on the right to have an FIR registered, and Section 173 (BNSS) must be read in its light.
If the mandatory duty in Section 173 (BNSS) were consistently observed, Section 175(3) would be an infrequently invoked provision. The persistence of FIR refusal in practice on grounds ranging from jurisdictional doubt (now substantially foreclosed by the Zero FIR provision) to characterization of the dispute as civil in nature, to institutional unwillingness where the accused is locally powerful means that the refusal problem is structural rather than incidental. Section 173(4) (BNSS) (equivalent to Section 154(3) CrPC) provides the first tier of statutory redress: the aggrieved informant may communicate the substance of the information in writing to the Superintendent of Police, who is then empowered, if satisfied that a cognizable offence is disclosed, to direct investigation by a subordinate officer. This administrative remedy, however, involves approaching the same executive apparatus that has already declined to act and does not involve judicial oversight. The Magistrate’s power under Section 175(3) is qualitatively different, it imports judicial scrutiny of police inaction at the pre-cognizance stage.
The hierarchy of remedies against FIR refusal from S.P. reference under Section 173(4) to Magistrate’s order under Section 175(3) to High Court jurisdiction under Article 226 represents a graduated structure in which the citizen is expected to exhaust statutory avenues before invoking extraordinary jurisdiction. The Magistrate’s power is not the last resort; it is the critical intermediate remedy.
The Supreme Court in Sakiri Vasu v State of Uttar Pradesh (2008), made this graduated structure explicit. The Court held that where an FIR has not been registered or investigation has not been undertaken, the aggrieved person should approach the Superintendent of Police under Section 154(3) (CrPC) or the Magistrate under Section 156(3) (CrPC) rather than rushing to the High Court under Article 226 or the Supreme Court under Article 32. Extraordinary constitutional jurisdiction was not intended as the first port of call for FIR refusal grievances. The Sakiri Vasu case principle survives under the (BNSS) with full force and effectively creates a procedural precondition of exhaustion before the High Court’s jurisdiction is appropriately engaged.
Section 175(3) BNSS: The Nature, Scope, and Institutional Character of the Power
Section 175 (BNSS) replicates the structure of Section 156 (CrPC). Sub-sections (1) and (2) deal with the police’s autonomous power to investigate cognizable offences without requiring Magistrate authorization. Sub-section (3) provides:
‘Any Magistrate empowered under section 210 may order such an investigation as above mentioned’
The cross-reference to Section 210 (BNSS) which empowers Magistrates to take cognizance of offences performs a critical jurisdictional limitation, only a Magistrate who is competent to take cognizance of the offence in question may order investigation under Section 175(3). An Executive Magistrate has no power under this provision. A Judicial Magistrate of the Second Class may exercise it only in respect of offences triable by such a Magistrate. For more serious offences, the Sessions Court may possess the power where it has original jurisdiction, but the more typical situation is the Judicial Magistrate First Class in whose jurisdiction the offence is alleged to have been committed.
The characterisation of the Section 175(3) power as a pre-cognizance power is foundational to its doctrinal understanding and was authoritatively established in Tula Ram v Kishore Singh (1977). The Supreme Court held that the Magistrate who orders investigation under this provision does not thereby take cognizance of the offence. Cognizance, the judicial act of taking notice of an alleged offence with a view to proceeding against the accused is a distinct event that occurs subsequently, when a police report under Section 193 (BNSS) (equivalent to Section 173 CrPC charge sheet) or a complaint under Section 222 (BNSS) is placed before the Magistrate. An order under Section 175(3) is directed at the police, not at any accused person; it triggers executive action, not judicial proceedings. This distinction has important consequences, the accused has no locus standi to challenge a Section 175(3) order at the time it is made, and no procedural protection of the kind available to an accused in a trial applies at this stage.
The power under Section 175(3) is also supervisory rather than investigatory in its essential character. As the Supreme Court clarified in Suresh Chand Jain v State of Madhya Pradesh (2001), the Magistrate ordering investigation may direct the registration of an FIR and the conduct of investigation; what the Magistrate cannot do is prescribe how the investigation is to be conducted, direct the findings it should produce, or substitute judicial judgment for the professional assessment of the investigating officer. Once ordered, the investigation proceeds according to the general powers of the police under Part V of the (BNSS). The Magistrate’s role at this stage is to set the machinery in motion, not to operate it. Any attempt by a Magistrate to micro-manage an investigation ordered under Section 175(3) would exceed the jurisdiction the provision confers and would be liable to be corrected in revision.
The power extends, importantly, to ordering the registration of the FIR itself. This was established in Mohd. Yousuf v Afaq Jahan (2006), where the Supreme Court held that the Magistrate acting under Section 156(3) (CrPC), now Section 175(3) (BNSS) has the authority to direct the officer in charge of the police station to register the FIR and investigate. The provision does not require that an FIR already exist before the Magistrate’s power can be invoked, the power to order investigation necessarily includes the power to direct the registration of the FIR that would ordinarily precede investigation. This reading is critical to the provision’s effectiveness as a remedy against FIR refusal: if the power could only be exercised once a FIR was already registered, it would have no remedial application precisely in the situations where it is most needed.
The Jurisprudential Conditions: Application of Mind and the Precondition
The exercise of Section 175(3) power has been progressively conditioned by judicial doctrine, reflecting the courts effort to balance three competing imperatives: ensuring that citizens have an effective remedy against police inaction; preventing the criminal investigation machinery from being weaponized through vexatious applications; and maintaining the institutional demarcation between the judicial and executive functions at the investigation stage. The resulting doctrine is more procedurally elaborate than the provision’s text alone would suggest.
The most fundamental judicial condition is the requirement that the Magistrate apply judicial mind to the application before passing an order under Section 175(3). The Supreme Court has consistently held, across a series of decisions, that a Magistrate cannot function as a post office, mechanically directing investigation whenever an application is moved, regardless of its apparent substance. In Ramdev Food Products Pvt Ltd v State of Gujarat (2015), the Court reiterated that the Magistrate must consider whether the allegations in the application, taken at face value, disclose the ingredients of a cognizable offence, whether the applicant has made bona fide efforts to obtain registration through available channels, and whether there is prima facie substance in the complaint warranting investigation. A formal, reasoned order, however, brief is necessary, a bare mechanical direction does not constitute an exercise of the power.
The most consequential and most contested development in the doctrine came with Priyanka Srivastava v State of Uttar Pradesh (2015), a Bench of three Judges, departing from what had become common practice in many Courts held that a person cannot directly file an application under Section 156(3) (CrPC) now Section 175(3) (BNSS) as the first step, without having first filed a complaint under Section 200 (CrPC) now Section 222 (BNSS). The Court specifically held that an application under Section 156(3) must be supported by an affidavit and that the Magistrate must scrutinize the application with care before directing investigation, keeping in mind the misuse potential of the provision. The practical import is significant: an aggrieved person seeking to invoke Section 175(3) must first file a formal complaint before the Magistrate, and the application under Section 175(3) should follow from and refer to that complaint.
Priyanka Srivastava case adds a procedural layer that the statute does not itself impose. For the complainant already turned away by the police, it means a second procedural hurdle before judicial relief is reached. Whether this condition serves access to justice or complicates it is a question the BNSS legislature has not addressed. The requirement in Priyanka Srivastava case reflects a genuine concern that has practical foundation. The power to direct police investigation carries coercive force and has historically been misused by private litigants, commercial competitors, and parties to civil disputes have invoked Section 156(3) to secure police investigation as a tool of pressure rather than as a genuine remedy for crime. The affidavit requirement and the prior complaint condition are designed to ensure that the Magistrate has before them verified, sworn information when deciding whether to set the investigation machinery in motion. Yet the requirement extracts a procedural cost from precisely the class of persons those whose FIR has been refused by the police, who are most vulnerable and least equipped to navigate multi-step judicial procedures. The (BNSS) has not addressed this tension and leaves Priyanka Srivastava as the governing authority on the section’s exercise.
A further qualification applies where the application targets public servants. In Anil Kumar v M K Aiyappa (2013), the Supreme Court held that where the offence alleged requires prior sanction for prosecution as under Section 19 of the Prevention of Corruption Act, 1988, or Section 197 (CrPC) (now Section 218 BNSS) in respect of public servants acting in official capacity the Magistrate must apply mind to the sanction question before directing investigation. The Court did not hold that sanction must be obtained before a Section 156(3) order can be passed, but it held that the Magistrate must consider whether the offence alleged is one for which sanction would be required, so as to ensure that the investigation directed is not one that leads to a prosecution barred from the outset. This qualification is demanding on both the applicant and the Magistrate: it requires a legal analysis of the sanction requirement as a precursor to the pre-cognizance supervisory act of directing investigation.
The BNSS’s Innovations: What Has Changed, What Has Not, and What Remains Unresolved
The (BNSS) introduces several provisions that interact with the Section 175(3) gatekeeping function. The Zero FIR codification under Section 173(1) proviso is the most consequential for the frequency with which Section 175(3) will need to be invoked. By enabling FIR registration at any police station in the country regardless of territorial jurisdiction an approach previously limited to specific circumstances and state-level circulars, the BNSS has substantially foreclosed the jurisdictional ground on which police officers previously declined FIR registration. An officer who declines to register an FIR on the basis that the offence was committed outside their jurisdiction now has no statutory basis for that refusal: any station may receive the FIR under Section 173(1) and transfer it to the competent station within fifteen days. The Zero FIR provision thereby addresses a category of refusal that previously generated a significant volume of Section 175(3) applications.
Section 173(1) BNSS also enables electronic FIR registration: information regarding a cognizable offence may now be sent electronically to the police station and will be registered as an FIR once the informant appears at the station and signs it. The facility of electronic registration creates a verifiable, timestamped record of the informant’s attempt to report the offence, which is directly useful in Section 175(3) proceedings: it allows the applicant before the Magistrate to demonstrate with documentary precision that information was communicated to the police and was not registered, strengthening the evidentiary foundation of the application and reducing the scope for police denial.
The (BNSS) has also introduced, under Section 193(4), a requirement that the officer in charge of a police station communicate the progress of investigation to the informant and the victim at intervals. While this provision primarily governs ongoing investigations, it creates a documentary trail that may be relevant in Section 175(3) proceedings where the complaint is not that the FIR was refused outright but that investigation has been deliberately stalled after registration.
What the BNSS has not done is address two structural weaknesses in the Section 175(3) framework that the experience of Section 156(3) (CrPC) had clearly identified. First, there is no prescribed time limit within which the Magistrate must dispose of an application under Section 175(3). Applications under the corresponding Section 156(3) (CrPC) routinely lingered for months or years in subordinate courts, with the FIR refusal uncorrected and the victim without judicial relief for the entire period. The (BNSS) has introduced time limits in a number of other procedural contexts for example, the Section 173(4) requirement that the Superintendent of Police respond within a reasonable time, and various trial stage timelines but has not carried this time consciousness into Section 175(3) disposals. Second, the BNSS provides no mechanism for interim protection to the complainant during the pendency of a Section 175(3) application, a gap of particular significance in cases of ongoing offences (domestic violence, stalking, extortion) where the absence of an FIR leaves the victim without immediate police protection while the application works its way through the Magistrate’s court.
Critical Evaluation: Is the Gatekeeping Function Effective?
The characterization of the Magistrate as a ‘gatekeeper’ of criminal justice operates in two directions that are in permanent tension with each other. The Magistrate opens the gate for the aggrieved person denied FIR registration compelling police action through judicial authority. The Magistrate simultaneously closes the gate against the misuse of the criminal investigation machinery for private harassment, applying judicial scrutiny to ensure that investigation is not ordered on the basis of bare, unverified allegations. The difficulty is that the Supreme Court’s accumulated jurisprudence particularly the Priyanka Srivastava case requirement of a prior complaint, the application-of-mind standard developed in Ramdev Food Products case, and the sanction-scrutiny requirement of Anil Kumar case, in its cumulative effect created a more elaborate procedural journey for the genuine complainant than the statutory text alone would suggest. The gate is present; the key to open it has multiple steps.
It is worth recalling that Lalita Kumari case made FIR registration mandatory for cognizable offences and left only a narrow category of cases in which preliminary inquiry was permissible. If that constitutional mandate were observed consistently, Section 175(3) would be a provision for exceptional situations, not a routine remedy. The frequency with which Section 175(3) applications are filed in the subordinate courts of India and the volume of High Court and Supreme Court litigation on the provision is itself evidence that Lalita Kumari’s mandate is not self-executing and that the mandatory duty in Section 173 (BNSS) is not, in practice, mandatory in the way the statute intends. The Magistrate’s gatekeeping function under Section 175(3) is therefore not a supplementary safeguard for genuinely exceptional cases, it is a systemic corrective for a systemic failure of compliance, and it must be evaluated as such.
Evaluated on those terms, the provision is effective in principle but structurally hampered in practice. The Priyanka Srivastava case preconditions that a formal complaint must be filed before a Section 175(3) BNSS application is maintainable is judicially defensible against misuse. But it imposes a multi-step procedure on the very person who has already been turned away by the police. The complainant must appear before the Magistrate, file a complaint under Section 222 BNSS, verify it by affidavit, and then separately move the Section 175(3) application. For a victim of a serious cognizable offence particularly in rural or semi-urban India, without legal representation, and at significant personal risk this procedural journey is an access-to-justice obstacle of real significance. The BNSS’s ambition to make criminal procedure more accessible and citizen-friendly sits uneasily with a doctrine that adds procedural stages the statute itself does not require.
Two observations follow for legislative and judicial attention. First, the BNSS should be amended to prescribe a time-limit for disposal of Section 175(3) applications, a period of thirty days would be consistent with the provision’s remedial character and with the BNSS’s general time-consciousness in other procedural contexts. Second, the Supreme Court, in the BNSS context, should re-examine whether the Priyanka Srivastava precondition of a prior complaint should be applied with the same rigour as under the CrPC, or whether the BNSS’s expanded access provisions to Zero FIR, electronic registration, and clearer mandatory duty, justify a more direct approach to Section 175(3) applications without the intermediate step of a formal complaint in straightforward FIR refusal cases. These are not merely procedural refinements; they determine whether the provision functions as an effective constitutional remedy or as an elaborate procedural structure that the state’s failure to comply with Lalita Kumari case has made necessary but the law has made difficult to use.
Conclusion
Section 175(3) (BNSS) is the legislative acknowledgement that the mandatory duty to register FIRs requires a judicial enforcement mechanism operating outside the executive apparatus that has already failed to comply. The Magistrate, empowered to order investigation at the pre-cognizance stage, occupies a constitutionally significant position in the graduated architecture of remedies against FIR refusal. The Supreme Court’s decisions from Tula Ram’s foundational characterisation of the power as pre-cognizance, through Lalita Kumari’s mandate of mandatory registration, to Priyanka Srivastava’s procedural conditions and Anil Kumar’s public-servant qualification have given this power its present form: purposive in intent, doctrinally sophisticated, but procedurally conditioned in ways that create their own barriers to access.
The BNSS has made meaningful progress. The Zero FIR codification removes the most commonly invoked jurisdictional pretext for FIR refusal. Electronic registration creates a verifiable record of attempted reporting. The mandatory duty under Section 173 is re-stated with the same unambiguous force as its predecessor. But the two structural deficiencies that Section 156(3) (CrPC) exposed the no time-limit for disposal of applications and no interim protection for victims pending disposal have been carried forward unremedied into the (BNSS). A Magistrate equipped with the power to open the gate of criminal justice for the aggrieved citizen must also be equipped with the procedural tools, timeframes, and clear doctrinal guidance to exercise that power at the pace that justice, rather than the convenience of the justice system, requires.
References
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Author: S Karthikeyan
Passionate Law Student