The recent view taken by the Supreme Court on 25-7-2025 in Anurag Bhatnagar v. State (NCT of Delhi)1, gives rise to a larger conundrum than settling the law on investigation at the order of the Magistrate, insofar as it concludes to state that orders directing investigation by Magistrate in exercise of Section 154(3)2 of the Criminal Procedure Code, 19733 ought not to be interfered with only because the complainant has not exhausted his remedies under Section 154(1) and/or Section 154(3), if otherwise the allegations in the application/complaint discloses the commission of a cognizable offence.
For almost over a decade since the year 2014, the courts continued to follow the mandate of law laid down by the Supreme Court in Priyanka Srivastava v. State of U.P.4 and Babu Venkatesh v. State of Karnataka5 which follows the decision in Priyanka Srivastava case6 stating that a Magistrate cannot order registration of a first information report (FIR) under Section 156(3)7 of the Criminal Procedure Code, 1973 (CrPC) unless the complainant has first exhausted his/her remedies under Sections 154(1) and (3) CrPC. This significant view was reiterated in Ranjit Singh Bath v. State (UT of Chandigarh)8, where the order by a Magistrate stood overturned since the aforestated remedies were not exhausted by the complainant concerned before approaching the Magistrate under Section 156(3) CrPC. Thus, all challenges to such orders which proceeded to direct investigation without ensuring compliance of Section 154(1) and/or Section 154(3) CrPC, ordinarily succeeded since such orders were clearly within the teeth of the well-settled position.
Under Section 154(1) CrPC, the complainant must preliminarily report the offence to the officer in charge of a police station, who is then obligated to record it in writing and obtain the informant’s/complainant’s signature. If the police officers refuse to register the complaint as an FIR, the complainant can invoke his rights under Section 154(3) to raise the matter by submitting a written complaint to the Superintendent of Police (SP)/Commissioner of Police (CP) who may then investigate the case or delegate/assign it to a competent officer; subordinate to him. It is only after these steps are adopted and the remedies under Section 154 CrPC as stated above are exhausted, that a complainant can approach the Jurisdictional Magistrate under Section 156(3) CrPC to seek an order for investigation basis his complaint. In the facts of Anurag Bhatnagar case9, the complainant had exhausted none of these remedies and yet the order of the Magistrate stood sustained before the Supreme Court.
Another concerning factor which has crept in through the judgment in Anurag Bhatnagar case10, is dilution of the requirement of the order directing investigation, being a Speaking Order reflecting application of mind as mandated by the Supreme Court in Anil Kumar v. M.K. Aiyappa11, which states that:
11. … The application of mind by the Magistrate should be reflected in the order. The mere statement that he has gone through the complaint, documents and heard the complainant, as such, as reflected in the order, will not be sufficient. After going through the complaint, documents and hearing the complainant, what weighed with the Magistrate to order investigation under Section 156(3) CrPC, should be reflected in the order, though a detailed expression of his views is neither required nor warranted.
The above observation is based upon a traditionally well–recognised principle that whenever any power is bestowed upon a judicial officer, it is incumbent that it should be exercised on the basis of sound legal principles by application of mind and by a Speaking Order. Though, the Supreme Court in Anurag Bhatnagar case12 considers the said principle; interestingly without referring to Anil Kumar case13 has proceeded to hold as follows:
40. The mere stating in the order that the counsel has been heard and the application and the material produced have been perused, may not be indicative of the fact that the Magistrate had actually applied his mind to the controversy in issue. However, the fact that the perusal of the application and complaint attached to it, satisfied the Magistrate that it discloses a cognizable offence, is very material and relevant which proves the application of mind by him.14
The aforesaid observation is diametrically contrary to the earlier views taken by the Supreme Court which state that a stray statement in the order by the Magistrate that he has gone through the complaint, perused the documents and heard the complainant, will not be sufficient. Whenever an application is filed by the complainant before the Magistrate seeking investigation by police under Section 156(3) CrPC, it is the duty of the Magistrate to apply his mind for the purpose of ascertaining whether the allegations levelled in the complaint constitute any cognizable offence or not. The Magistrate cannot ascertain whether the complaint is false or otherwise, however, the Magistrate is obliged before he passes an order directing police investigation to closely evaluate whether the mandatory ingredients to constitute the offence as alleged are made out on plain reading of the complaint or not, and that the aforesaid exercise must be clearly spelt out and reflected in the order directing investigation.
The analogous provision for Section 156 CrPC in the Nagarik Suraksha Sanhita, 2023 (BNSS)15 is Section 175(3)16. Three prominent changes that have been introduced by the enactment of the BNSS, which clearly spell out the intent of the legislature to statutorily require the Magistrate to pass reasoned Speaking Orders, which are as follows:
(1) First, an application to the CP/SP upon refusal by the police officers to lodge the FIR, has been made mandatory, and the applicant making an application under Section 175(3) is required to furnish a copy of the application made to the CP/SP under Section 173(4)17 of the BNSS, which is supported by a sworn affidavit, while making the application to the Magistrate under Section 175(3) of the BNSS.
(2) Second, the Magistrate is entitled to conduct an enquiry as deemed necessary by him prior to directing an investigation by police.
(3) Third, the Magistrate is bound to afford a hearing to the officer in charge of the police station concerned in relation to the refusal by police to register an FIR before passing any under Section 175(3).
Clearly the settled waters have been stirred as the judgment of the Supreme Court in Anurag Bhatnagar case18 proceeds without referring to, much less considering the decade old jurisprudence settled in Priyanka Srivastava case19 which to-date continued to operate as the governing parameter to test the validity of orders passed by Magistrates directing investigation of crime by the police. The view taken in Anurag Bhatnagar case20 may reintroduce the era prior to Priyanka Srivastava case21 where mechanical orders directing investigation basis observations such as “perused the complaint and documents along with the complaint and heard the complainant” and those lacking necessary compliance of exhaustion of remedies under Section 154 CrPC by the complainant, shall now stand the test of law and would lead to an unhealthy situation. The inconsistency of views as reflected above has larger implications since the issue involved touches the foremost step i.e. setting of the criminal law in motion and thus deals with the very fundamental principle of criminal jurisprudence, and therefore consideration of this issue by a larger Bench of the Supreme Court is the appropriate remedy than merely terming Anurag Bhatnagar case22 as per incuriam.
*Advocate, Bombay High Court. Author can be reached at: advocatearjunkadam@gmail.com.
2. Criminal Procedure Code, 1973, S. 154(3).
3. Criminal Procedure Code, 1973.
7. Criminal Procedure Code, 1973, S. 156(3).
11. (2013) 10 SCC 705, 711.
14. Anurag Bhatnagar case, 2025 SCC OnLine SC 1514.
15. Nagarik Suraksha Sanhita, 2023.
16. Nagarik Suraksha Sanhita, 2023, S. 175(3).