Analysis of Magistrate Ordered Investigations under the BNSS

The Supreme Court has confirmed that the power under Section 156(3) can be exercised only by Magistrates who are empowered to take cognizance of the offence in question.

Introduction

The genesis of all criminal proceedings relating to cognizable offences¹ is the registration of a first information report (FIR), which is a written document prepared by the police recording the details of the reported offence including date/time, place, name of the suspects, on the basis of which the police commence a criminal investigation. Given the crucial nature of the FIR in initiating the criminal process, any delay in its registration may jeopardise the effectiveness of the investigation, a time-sensitive process, as well as result in the denial of timely access to criminal justice for victims. Despite this reality, police officers commonly delay or refuse to register an FIR, often citing ongoing preliminary inquiries and verification of facts, as the basis for such procrastination.

In 2014, the Supreme Court held that if a criminal complaint contains information which “discloses the commission of a cognizable offence”, the police are under a statutory obligation to register an FIR under Section 154, Criminal Procedure Code (CrPC),² which has now been replaced by Section 173, Nagarik Suraksha Sanhita, 2023 (BNSS). Certain specific categories of offences — matrimonial/family disputes, commercial offences, medical negligence cases, corruption cases, and complaints with an unexplained delay — where a preliminary inquiry is permitted for the limited purpose of ascertaining whether a cognizable offence is disclosed, was held to be the only exception to the rule that registration of an FIR is mandatory.³

In view of the above, all victims or informants of a cognizable offence have the right to seek an investigation into such an offence with the registration of an FIR. In case the police decline to register an FIR, despite their information clearly disclosing commission of a cognizable offence, the victim or informant has a remedy under Section 175(3) BNSS, which empowers Magistrates to order an investigation into the alleged cognizable offence on the basis on an application by the informant/victim.

Over the years, the Supreme Court has issued numerous judgments clarifying when Magistrates should order an investigation. These judgments were interpreting Section 156(3) CrPC which governed Magistrate-ordered investigations until BNSS entered into force in 2024. Section 156(3) CrPC stated that “Any Magistrate empowered under Section 190 may order such an investigation as above-mentioned”, i.e., an investigation by the police into a cognizable offence under Section 156(1). While a cursory reading of the provision establishes that Magistrates are empowered to order investigations, it leads to three questions:

1. What does “Magistrate empowered under Section 190” refer to, i.e., which class of Magistrates are empowered to direct investigations into which offences?

2. What are the factors the Magistrate must consider while ordering an investigation into a cognizable offence?

3. The procedural question of how should informants apply for a Magistrate-ordered investigation under Section 156(3) CrPC?

This article examines the Supreme Court’s judgments on these issues and explains how their directions have been codified in Section 175(3) BNSS.

Which class of Magistrates are empowered to direct investigations?

Section 156(3) grants discretion to any Magistrate empowered under Section 190 to order an investigation. Section 190 CrPC was concerned with “cognizance of offences by Magistrates” and detailed the three situations in which Magistrates were empowered to take cognizance of offences, i.e., upon a private complaint, upon a police report, or upon the Magistrate’s own knowledge or otherwise upon information received from any person other than a police officer. If a Magistrate could take cognizance of an offence under Section 190 CrPC, he was also empowered to order an investigation into such an offence under Section 156(3) CrPC. The reference to Section 190 CrPC is crucial as it excludes certain offences from the scope of the Magistrates’ power under Section 156(3).

The Supreme Court has confirmed that the power under Section 156(3) can be exercised only by Magistrates who are empowered to take cognizance of the offence in question.⁴ Therefore, if the Magistrate cannot take cognizance of the offence in question, he cannot direct an investigation into such an offence under Section 156(3) CrPC. Therefore, when special statutes — such as, the Protection of Children from Sexual Offences Act, 2012 (POCSO) — vest jurisdiction under such statutes in Special Courts to the exclusion of Magistrates, the power to direct an investigation too vests with the Special Courts. Consequently, if the police have failed to register an FIR regarding an offence under POCSO, the informant must seek a direction to investigate from the Special Court under POCSO and not the Magistrate.

Section 175(3) BNSS, which has replaced Section 156(3) CrPC, also provides the same discretion to Magistrates empowered under Section 210 BNSS (corresponding to Section 190 CrPC), to order an investigation. Therefore, Section 175(3) BNSS does not alter the statutory scheme with regard to the type of offences for which Magistrates can order investigations. Given that Magistrates can direct investigation in relation to only certain types of offences, it is important for informants to pay close attention to the cognizable offence and ensure that applications seeking directions to investigate are filed before the appropriate authority.

When should Magistrates order an investigation?

While Section 156(3) CrPC granted discretionary power, it was silent on the circumstances under which Magistrates were to exercise such discretion. As the corresponding Section 175(3) BNSS remains silent on this question, the Supreme Court’s directions in the context of Section 156(3) CrPC continue to remain relevant in this regard.

The Supreme Court has consistently held that an order directing investigation must be a speaking order to be passed only after due application of mind by the Magistrate and if the relevant facts disclose a cognizable offence.⁵ In particular, the Magistrate must specify “what weighed with the Magistrate to order investigation”⁶ such as the necessity of police investigation to discover evidence which is not in the possession of the complainant and cannot be procured without the assistance of the police.⁷ The Magistrate is therefore required to evaluate the totality of facts, including “credibility of information available” and weigh whether it is in the interest of justice to direct the involvement of the police by directing an investigation.⁸

Further, as a direction under Section 175(3) would result in an FIR, it stands to logic that the Magistrate should also consider whether the consequent FIR would be liable to be quashed under Section 528 BNSS, on grounds such as criminalising civil disputes, delay in registration of FIR, abuse of process, and any legal bar to the investigation.

Procedural requirements to apply for an order to investigate

While adjudicating an application seeking an order to investigate by the police, Magistrates often need to strike a balance between the rights of the informant and the potential accused against whom the informant seeks an investigation. While the informant has the right to an investigation into the alleged cognizable offence, Magistrates must ensure that individuals accused of the offence do not become subject to criminal investigations except when warranted.

To this end, the Supreme Court has cautioned against misuse of the provision and emphasised the necessity for additional requirements to ensure that Magistrate-ordered investigations do not exceed their required scope. As per the Supreme Court directions, applications under Section 156(3) CrPC were to satisfy two procedural requirements:

1. Requirement one: If a police officer declines to register an FIR, the complainant must first exhaust alternative remedies by addressing the complaint to the Superintendent of Police under Section 154(3) CrPC prior to filing the application under Section 156(3) CrPC. If an FIR is not registered even after the complaint being addressed to the Superintendent of Police, the application under Section 156(3) can then be filed, and it must include the application to the Superintendent of Police and the necessary averments regarding the lack of action on part of the Superintendent of Police.

2. Requirement two: The complainant should file a duly sworn affidavit in support of the application under Section 156(3), due to which the complainant becomes liable to be prosecuted in case of any false allegations in the application.⁹

These procedural requirements have been reiterated by the Supreme Court on a number of occasions with the Court holding that prior compliance with Section 154(3) CrPC or absence of the affidavit in support of the application is by itself a ground to set aside an order directing an investigation under Section 156(3).¹⁰

Recently, the Supreme Court has struck a discordant note in Anurag Bhatnagar v. State (NCT of Delhi)¹¹. The Court upheld an order directing investigation under Section 156(3), which was passed in an application filed without exhaustion of statutory remedies under Section 154(3). The Court reasoned that the Magistrate committed a “mere procedural irregularity” in entertaining such an application, and therefore, the order directing investigation was not without jurisdiction. However, shortly after this order, in S.N. Vijayalakshmi v. State of Karnataka¹², the Supreme Court reiterated that “[i]f the Magistrate proceeds without the requisite affidavit, such order/any consequential orders/proceedings can be quashed on the sole ground of non-compliance with Priyanka Srivastava¹³” while holding on facts that the affidavit proving compliance with Section 154(3) CrPC need not be filed along with the application but must be filed before the order directing the investigation is passed.

Section 175(3) BNSS

The aforementioned case law dealt with three critical issues regarding Magistrate-ordered investigations under Section 156(3) CrPC: first, which class of Magistrates could order investigations into which offences; second, when should an investigation be ordered; and third, what are the procedural requirements that informants must follow.

From July 2024, the BNSS has repealed and replaced the CrPC, with Section 175(3) BNSS now governing Magistrate-ordered investigations. Section 175(3) reads thus:

175. Police officer’s power to investigate cognizable case.—(3) Any Magistrate empowered under Section 210 may, after considering the application supported by an affidavit made under sub-section (4) of Section 173, and after making such inquiry as he thinks necessary and submission made in this regard by the police officer, order such an investigation as above-mentioned.

In a recent 2025 decision¹⁴, the Supreme Court has taken judicial notice of the three alterations between the text of Section 156(3) vis-à-vis Section 175(3) BNSS:

1. The requirement of making an application to the Superintendent of Police supported by an affidavit is now a mandatory statutory requirement.

2. Magistrates have been empowered to conduct such enquiry as they deem necessary before making an order directing registration of FIR.

3. Magistrates are now required to consider the submissions of the officer in charge of the police station before issuing any directions under Section 175(3).

Thus, while Section 175(3) BNSS remains silent on when Magistrates should order an investigation, the additional procedural requirements laid down by the Supreme Courts in interpreting Section 156(3) CrPC have now been given statutory recognition. Therefore, an application under Section 175(3) BNSS must now be filed only after the application to the Superintendent of Police and must necessarily be supported by an affidavit. Non-compliance with these procedural requirements shall render the application liable to dismissed, and any order allowing such an application liable to be quashed by appellate courts.

Further, Section 175(3) BNSS explicitly empowers Magistrates to conduct an enquiry, if required. While this addition indicates that Magistrates must specify the grounds to direct an investigation, Section 175(3) does not clarify the scope of such an enquiry and the factors which Magistrates are to consider. In view of this, Supreme Court guidelines on when Magistrates should order an investigation (explained above) will continue to be crucial guidance on when Magistrates should order an investigation under Section 175(3) BNSS.

The final change from Section 156(3) CrPC is that Section 175(3) BNSS requires Magistrates to consider the submissions of the police prior to issuing any directions. Under Section 156(3) CrPC, Magistrates could pass orders to investigate without considering the stance of the police. Therefore, requiring Magistrates to consider the submissions of the police is a significant development as Magistrates will now be required to weigh competing submissions on whether an investigation is necessary. Additionally, as noted by the Supreme Court in its recent decision,¹⁵ Section 175(3) BNSS has affixed greater accountability on the police officer responsible for registering FIRs, as the police officer may be required to justify non-registration of an FIR before the Magistrate, in case the informant invokes Section 175(3) BNSS. Further, mandating the Magistrate to consider the submissions of the police officer concerned also ensures that the Magistrate applies his judicial mind to pass a reasoned order.

The additional requirements introduced by Section 175(3) BNSS appear to be intended to streamline the manner in which courts give effect to this provision as courts will now have to consider the submissions of both the complainant and police while exercising its discretion to direct investigations.