Judicial Scrutiny in FIR Registration: A Comparative Analysis of Section 156(3) CrPC and Section 175(3) BNSS

Introduction

Cognizable offences are those for which a police officer has the authority to make an arrest without a warrant and to start an investigation with or without the permission of a court. Under Section 154 of the CrPC, any information relating to the commission of a cognizable offence, if given orally to an officer in charge of a police station, must be reduced to writing and signed by the informant. This is known as the First Information Report (FIR). Section 156 of the CrPC empowers a police officer to investigate any cognizable case without the order of a Magistrate. Specifically, Section 156(3) allows a Magistrate to order the police to investigate a cognizable offence before taking cognizance of the matter. This provision is designed to provide recourse to complainants when the police refuse to register an FIR, ensuring access to justice.

The power of a Magistrate to direct investigation into cognizable offences under Section 156(3) of the Criminal Procedure Code, 1973 (CrPC), has long been a powerful tool for ensuring access to justice in the face of police inaction. However, this provision has also been vulnerable to misuse, leading to frivolous or retaliatory criminal prosecutions. Recognising the need for procedural safeguards, the Bhartiya Nagarik Suraksha Sanhita, 2023 (BNSS) has introduced significant reforms by replacing Section 156(3) CrPC with a more structured and accountable framework under Section 175(3) BNSS.

In a recent landmark judgment, Om Prakash Ambadkar v. State of Maharashtra & Ors. (2025), the Hon’ble Supreme Court underscored the importance of judicial application of mind in such matters and established the guidelines for how future Magistrates are to exercise this power under the BNSS.

Section 156(3) CrPC: Power without Safeguards?

Section 156(3) CrPC empowers a Magistrate to order police to investigate a cognizable offence before taking cognizance. While this provision was designed to provide recourse to complainants when the police refuse to register an FIR, its unregulated invocation led to several concerns:

1. Requirement of prior steps – Complainants would directly approach the Magistrate without reporting the matter to the Superintendent of Police (SP) first as required under Section 154(3) CrPC.
2. Lack of preliminary scrutiny – Magistrates were often issuing directions without a preliminary hearing or inquiry.
3. Risk of harassment – Public servants and private citizens were being dragged into criminal proceedings without sufficient basis.

Over time, judicial rulings like Priyanka Srivastava v. State of U.P. (2015) and Ramdev Food Products v. State of Gujarat (2015) attempted to prevent misuse by mandating affidavits and application of mind, however, these measures were never incorporated into legislation.

Clarification from Supreme Court in its Recent Ruling:

In a crucial decision delivered on 25th July 2025, the Supreme Court of India, in a Bench comprising Justice Pankaj Mithal and Justice S.V.N. Bhatti, held that:

A Magistrate’s order directing the police to register an FIR under Section 156(3) CrPC is not rendered invalid merely because the complainant did not exhaust the remedy under Section 154(3). Even if advisable, the Court emphasized that procedural non compliance does not automatically invalidate the order if:

1. The allegations disclose a cognizable offence, and
2. The Magistrate has applied his mind meaningfully before issuing the direction.

The judgment reaffirmed that a Magistrate can exercise powers under Section 156(3) CrPC even if the complainant has not first approached the Superintendent of Police under Section 154(3).

Implication

The recent ruling by the Supreme Court emphasizes that a Magistrate’s order under Section 156(3) CrPC remains valid even if the complainant has not first approached the Superintendent of Police under Section 154(3). This affirms judicial discretion, safeguards access to justice in urgent or serious matters, and strikes a balance between procedural discipline and substantive fairness. This is particularly vital in cases involving serious offences or urgent threats where delay in Superintendent of Police recourse may defeat the ends of justice. While Section 175(3) of the BNSS, being a legislative enactment, establishes structured procedural safeguards, the ruling clarifies that such procedural steps should not obstruct genuine complaints, and that substance must always take precedence over form.

Section 175(3) BNSS: Codifying Safeguards

The BNSS addresses these lapses through Section 175(3), which retains the Magistrate’s power to direct investigation but adds three key procedural safeguards:

1. Mandatory Affidavit
   No application submitted under Section 175(3) will be considered unless it is accompanied by an affidavit. This requirement aims to promote accountability of the complainant and to discourage false or malicious allegations
2. Prior Recourse to Superintendent of Police
   Before seeking the Magistrate’s intervention, the complainant is mandatorily required to first pursue resolution with the Superintendent of Police as stipulated in section 173 BNSS (similar to 154(3) of the CrPC). The complainant may invoke section 175(3) if they are unsuccessful in obtaining a response from the Superintendent of Police.
3. Opportunity to Hear the Police
   One of the most important innovations is that the Magistrate is now required to provide the concerned police officer with an opportunity to present their case prior to initiating an investigation. This guarantees that the viewpoint of the investigating agency. Is taken into account, thereby filtering out any frivolous or exaggerated allegations right from the outset.

Supreme Court's Verdict in Om Prakash Ambadkar v. State of Maharashtra & Ors. (2025)

This landmark ruling exemplifies the folly that BNSS aims to address. The case originated from an incident where an Advocate was allegedly assaulted by a Police Officer in 2011. Following the failure to register his complaint, the advocate submitted an application under Section 156(3) of the CrPC. The magistrate ordered the registration of an FIR for various IPC offences, including defamation, criminal intimidation, and obscene acts.

The Supreme Court, however, held that:

• Not all alleged offences were cognizable, and in any case, the essential elements of the offences were absent.
• The Magistrate had failed to conduct preliminary judicial scrutiny and had passed a non-speaking order.
• Defamation (Section 500 IPC), being non-cognizable and compoundable, could not serve as a basis for an investigative direction under Section 156(3).

Allowing the appeal, the Court set aside the Magistrate’s and High Court’s orders, reaffirming that mechanical registration of FIRs at the instance of complainants cannot be sustained in law.

Why Section 175(3) BNSS is a Step Forward

Section 175(3) of the BNSS establishes codified safeguards that were either absent or merely implied under Section 156(3) CrPC. Here's how it strengthens the procedural framework:

• Affidavit Requirement: While necessity for an affidavit was established through judicial interpretation in Priyanka Srivastava v. State of U.P, the BNSS now makes it statutorily obligation, thereby ensuring increased accountability from the complainant.
• Hearing of Police Authorities: Under the CrPC, Magistrates were not required to hear the police before directing registration of an FIR. The BNSS rectifies this by mandating a hearing of the concerned officer, thus, ensuring fairness and filtering out frivolous or baseless complaints.
• Prior Approach to Superintendent of Police: Section 156(3) CrPC did not mandate that a complainant first seek resolution under Section 154(3). The BNSS, however, establishes this as a necessary precondition, thereby institutionalizing a clear procedural hierarchy.
• Judicial Application of Mind: Directions under CrPC were often mechanical or lacked reasoning. The BNSS encourages structured examination, requiring the Magistrate to consider the complaint, the police’s response, and the broader context before issuing directions.
• Safeguard Against Abuse: Under the CrPC, the only shield against misuse was judicial discretion. In contrast, the BNSS introduces in multi-tiered procedural safeguards, promoting transparency, accountability, and discipline in the application of criminal law.

Conclusion: A step towards Accountability

The replacement of Section 156(3) with Section 175(3) in the BNSS signifies a significant advancement in Indian criminal procedure. Over time, judicial rulings attempted to prevent misuse by mandating affidavits and application of mind; however, these measures were never incorporated into legislation. By establishing safeguards against the arbitrary or malicious use of investigative powers, the BNSS maintains a balance between the rights of complainants and the safeguarding of individuals, particularly public servants and law enforcement officials, from unjustified prosecution. The Supreme Court’s decision in Om Prakash Ambadkar further strengthens this principle and provides a persuasive framework for the future application of judicial discretion. In an era of procedural accountability, it is well reasoned orders, rather than mere endorsed directives, that will define the role of Magistracy in criminal jurisprudence.