Magistrate's Power to Direct Police Investigation — Section 175(3) BNSS Explained

This article is for educational and legal awareness purposes only. It does not constitute legal advice or solicitation. Please consult a qualified advocate for advice on specific legal matters.

Overview

Under the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), which replaced the Code of Criminal Procedure, 1973 (CrPC) with effect from 1 July 2024, a person who is unable to get the police to register or investigate a cognizable offence is not without a remedy. Section 175(3) of the BNSS — the successor to Section 156(3) of the CrPC — empowers a Magistrate to direct the police to register a case and investigate it. This power sits alongside, and is procedurally distinct from, the Magistrate’s ordinary power to take cognizance of an offence on a complaint. This article explains the statutory scheme in Sections 173 and 175 of the BNSS, the pre-conditions for invoking Section 175(3), how it differs from a Magistrate directly taking cognizance, and the case law that has already begun to apply it.

Statutory Framework

Section 173 — Information in Cognizable Cases

Section 173 of the BNSS corresponds to Section 154 of the CrPC and governs how information about a cognizable offence is recorded. Under Section 173(1), information may be given orally or by electronic communication to an officer in charge of a police station; oral information must be reduced to writing and read over to the informant, and every such information must be signed by the informant. Section 173(2) entitles the informant or victim to a free copy of the recorded information forthwith.

Section 173(3) is new to the BNSS and has no CrPC counterpart: for a cognizable offence punishable with three to seven years’ imprisonment, the officer in charge, with the prior permission of an officer not below the rank of Deputy Superintendent of Police, may — considering the nature and gravity of the offence — either conduct a preliminary enquiry within fourteen days to ascertain whether a prima facie case exists, or proceed directly with investigation where a prima facie case already exists.

Section 173(4) provides the first check on police inaction: a person aggrieved by a refusal to record information under sub-section (1) may send the substance of that information, in writing and by post, to the Superintendent of Police concerned. If the Superintendent is satisfied that the information discloses a cognizable offence, he must either investigate the case himself or direct a subordinate police officer to investigate it, with all the powers of an officer in charge of a police station. It is only if this fails that the aggrieved person may make an application to the Magistrate.

Section 175 — Police Officer’s Power to Investigate, and the Magistrate’s Power to Direct

Section 175 of the BNSS corresponds to Section 156 of the CrPC. Section 175(1) allows an officer in charge of a police station to investigate, without a Magistrate’s order, any cognizable case triable by a court having local jurisdiction; a proviso allows the Superintendent of Police to himself investigate, or assign investigation to a Deputy Superintendent, having regard to the nature and gravity of the offence. Section 175(2) protects the validity of such investigation from being questioned merely on the ground that the investigating officer was not empowered to investigate that particular case.

Section 175(3) is the operative provision for this explainer: “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.” Compared to the bare CrPC text — “Any Magistrate empowered under section 190 may order such an investigation as above mentioned” — the BNSS provision adds two express requirements: the application must be supported by an affidavit, and it must follow the route already set out in Section 173(4). It also expressly records the Magistrate’s power to make “such inquiry as he thinks necessary” and to hear the police officer’s submission before ordering investigation.

Section 175(4) is an entirely new safeguard: where a Magistrate empowered under Section 210 receives a complaint against a public servant arising in the course of discharge of his official duties, he may order investigation only after (a) receiving a report on the facts and circumstances from the officer superior to the public servant concerned, and (b) considering the public servant’s own assertions about the situation that led to the alleged incident.

Pre-Conditions for Invoking Section 175(3)

Read together, Sections 173 and 175 lay down a sequence rather than a single-step remedy:

First recourse to the police — information must first be given to the officer in charge of a police station under Section 173(1).
Written representation to the Superintendent of Police — if the police refuse to record the information, the aggrieved person must send the substance of it, in writing and by post, to the Superintendent of Police under Section 173(4).
Application to the Magistrate, supported by an affidavit — only if the Superintendent of Police also fails to act (or acts unsatisfactorily) may the aggrieved person apply to a Magistrate empowered under Section 210, and that application must be supported by an affidavit.
Judicial application of mind — the Magistrate is not a rubber stamp; Section 175(3) itself contemplates “such inquiry as he thinks necessary” and a submission from the police officer before an investigation is ordered.

How This Differs From Directly Taking Cognizance

Section 175(3) operates at the pre-cognizance stage. Section 210 of the BNSS (the successor to Section 190 of the CrPC) sets out how a Magistrate takes cognizance of an offence — upon a complaint of facts, upon a police report, or upon information from any person or his own knowledge. Where a Magistrate instead chooses to examine a complainant on oath under Section 223 of the BNSS (the successor to Section 200 of the CrPC) and proceed with the complaint procedure, he is treated as having taken cognizance. The two routes are mutually exclusive at the point of exercise: once a Magistrate has taken cognizance and embarked on the complaint procedure, he cannot revert to the pre-cognizance stage and order a police investigation under Section 175(3). Conversely, an order under Section 175(3) directing police investigation does not itself amount to taking cognizance.

This distinction also explains why a Magistrate receiving an application under Section 175(3) is not bound to allow it merely because it discloses a cognizable offence — he may instead exercise discretion to treat it as a complaint and proceed under Section 223.

Key Case Law

Lalita Kumari v. Govt. of U.P., (2014) 2 SCC 1 — A Constitution Bench of the Supreme Court held that registration of an FIR is mandatory where the information discloses a cognizable offence, and that no preliminary enquiry is permissible in such a case. It carved out narrow categories — including matrimonial/family disputes, commercial offences, medical negligence, corruption cases, and cases with abnormal delay in lodging the complaint — where a preliminary enquiry may be conducted before registration. Section 173(3) of the BNSS, permitting a fourteen-day preliminary enquiry for offences punishable with three to seven years’ imprisonment, draws on this line of reasoning, though it is now a distinct statutory provision rather than a judicially carved exception.

Priyanka Srivastava v. State of U.P., (2015) 6 SCC 287 — The Supreme Court held that an application under Section 156(3) of the CrPC must be supported by an affidavit sworn by the applicant, observing that such applications were being filed “in a routine manner without taking any responsibility whatsoever only to harass certain persons,” and that a false affidavit would expose the applicant to prosecution. The BNSS has now written this affidavit requirement directly into the text of Section 175(3).

Pradeep Kumar v. State of U.P., 2026:AHC:31226 (Allahabad High Court, 12 February 2026) — Examining Section 175(3) of the BNSS, the High Court held that the factors governing a Magistrate’s choice between directing registration of an FIR and treating the application as a complaint “are still the same when it comes to exercise of powers under Section 175(3) B.N.S.S.”, and that “the propositions of law summarized in the case of Lala Ram (Supra), as quoted above, still apply to proceedings under Section 175(3) B.N.S.S.” (Lala Ram v. State of U.P., 2021 (1) ADJ 145, itself drew on the Full Bench decision in Sukhwasi v. State of U.P., 2007 (59) ACC 739.) The Court dismissed the application, upholding a Magistrate’s order treating a Section 175(3) application as a complaint rather than directing police investigation, on facts where no evidence remained that could only be secured through police investigation.

Practical Points

An application under Section 175(3) should ordinarily be preceded by, and should annex proof of, the prior representation to the police under Section 173(1) and to the Superintendent of Police under Section 173(4).
The application must be supported by an affidavit; a false affidavit exposes the applicant to prosecution.
A Magistrate’s decision to treat the application as a complaint, rather than ordering investigation, is not necessarily an adverse outcome — the complaint procedure under Section 223 remains available.
Where the allegation is against a public servant acting in the discharge of official duties, Section 175(4)’s additional requirements — a report from the public servant’s superior officer and consideration of the public servant’s own explanation — apply before any investigation can be ordered.
Courts have considered factors such as delay in approaching the Magistrate and whether the case genuinely requires evidence-gathering that only the police can undertake (recovery, arrest, forensic collection) when deciding whether to direct investigation.

Takeaway

Section 175(3) of the BNSS carries forward the Magistrate’s long-standing power, previously under Section 156(3) of the CrPC, to direct police investigation of a cognizable offence where the police have failed to act. The BNSS has made the pre-conditions more explicit — a prior written complaint to the Superintendent of Police under Section 173(4), and an affidavit in support of the application — while preserving the judicial discretion developed under the CrPC to either order investigation or treat the application as a complaint. Because this is a pre-cognizance power distinct from a Magistrate directly taking cognizance under Section 210 and proceeding under Section 223, the two routes cannot be mixed once one has been chosen.

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