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UNLIKE SECTION 156 (3) OF THE NOW REPEALED Cr.P.C., THERE IS NO GENERAL POWER AVAILABLE TO THE MAGISTRATE TO SUO MOTU ORDER “INVESTIGATION” OR “FURTHER INVESTIGATION' UNDER SECTION 175 OR ANY OTHER PROVISION IN THE BNSS

For a better comprehension of the matter, it is necessary to examine the two provisions in the Cr.P.C as well as BNSS.

Cr.P.C, 1973

BNSS, 2023

Section 156 - Police officer's power to investigate cognizable cases

(1) Any officer in charge of a police station may, without the order of a Magistrate, investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII.

(2) No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate.

(3) Any Magistrate empowered under Section 190 may order such an investigation as above-mentioned.

Section 175 - Police officer's power to investigate cognizable case.--

(1) Any officer in charge of a police station may, without the order of a Magistrate, investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIV:

Provided that considering the nature and gravity of the offence, the Superintendent of Police may require the Deputy Superintendent of Police to investigate the case.

(2) No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate.

(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.

(4) Any Magistrate empowered under section 210, may, upon receiving a complaint against a public servant arising in course of the discharge of his official duties, order investigation, subject to-

(a) receiving a report containing facts and circumstances of the incident from the officer superior to him; and

(b) after consideration of the assertions made by the public servant as to the situation that led to the incident so alleged.

Police Report

2. If it was a case instituted on a “Police Report” under the now repealed Cr.P.C. and if the Magistrate was not fully satisfied either regarding the alleged offence or regarding the fact whether there was sufficient ground for proceeding against the accused, the Magistrate had the discretion to order “investigation”/“further investigation” under Section 156 (3) Cr.P.C. before deciding to take cognizance of an offence on such or further “Police Report”.

“Investigation”/“further investigation” was one of the options available to the Magistrate under Section 156 (3) Cr.P.C in all cases on receiving a “Police Report”. The said power under Section 156 (3) Cr.P.C was Judicially recognized also.

(Vide –

  • Abhinandan Jha v. Dinesh Mishra AIR 1968 SC 117 = 1968 CriLJ 97 = 1967 KHC 39 (SC) – Hidaytullah, Vaidialingam – JJ – Para 17.
  • Tulu Ram v. Kishore Singh AIR 1977 SC 2401 = 1978 Cri.L.J. 8 = 1977 KHC 215 (SC) – Fasal Ali, Kailasam – JJ – Para 15.
  • H. S. Bains v. State (Union Territory of Chandigarh) AIR 1980 SC 1883 = (1980) 4 SCC 631 = 1980 KHC 803 (SC) – R. S. Sarkaria, O. Chinnappa Reddy – JJ – Para 6.
  • Bhagwant Singh v. Commissioner of Police AIR 1985 SC 1285 = (1985) 2 SCC 537 = 1985 KHC 610 (SC) – 3 Judges - P. N. Bhagwati, Amarendra Nath Sen, D. P. Madon – JJ – paras 18 to 21.
  • Vishnu Kumar Tiwari v. State of UP AIR 2019 SC 3482 = (2019) 8 SCC 27 = 2019 KHC 6783 (SC) – Sanjay Kishan Kaul, K. M. Joseph – JJ – Paras 16, 21, 23 & 25.
  • State through CBI v. Hemendhra Reddy 2023 SCC OnLine SC 515 = 2023 Live Law (SC) 365 = 2023 KHC 6480 (SC) – Surya Kant, J. B. Pardiwala – JJ – Para 49.
  • Vikas Chandra v. State of Uttar Pradesh 2024 SCC OnLine SC 1534 = 2024 KHC 6252 (SC) - C. T. Ravikumar, Rajesh Bindal – JJ – Para 8.

3. Unfortunately, there is no power to order “investigation”/“further investigation” in BNSS as was available under Section 156 (3) Cr.P.C. Section 175 (3) and 175 (4) BNSS are not provisions corresponding to Section 156 (3) Cr.P.C. Section 175 (3) envisages a situation where consequent on the SHO refusing to record an FIR the aggrieved party moves the Superintend of Police under Section 173 (4) BNSS. If he fails in his attempt, the aggrieved party is given a right to move the Magistrate under Section 173 (4) BNSS. The Magistrate when moved is given the power under Section 175 (4) BNSS to order investigation. Likewise, Section 175 (4) BNSS envisages a situation where the Magistrate can order an investigation on receipt of a complaint against a public servant in respect of an offence committed by the public servant in the course of discharge of his official duties. The above two provisions operate in different fields and do not confer any suo motu power on the Magistrate to order “investigation”/“further investigation” in all other cases as was available under Section 156 (3) Cr.P.C. There is thus, no discretion given to the Magistrate under the BNSS to order “investigation”/“further investigation” before he can finally take cognizance of the offence in a case instituted on a “Police Report”. The Magistrate will have to either refuse to take cognizance of the offence or reject the Police Report without any power to order further investigation. The wide supervisory jurisdiction of a Magistrate to monitor the investigation as enunciated in Sakiri Vasu v. State of U.P. AIR 2008 SC 907 = (2008) 2 SCC 409 = 2008 (2) KHC 13 – A. K. Mathur, Markandey Katju – JJ; Vinubhai Haribhai Malaviya v. State of Gujarat AIR 2009 SC 5233 = (2019) 17 SCC 1 = 2019 KHC 7040 – 3 Judges – Rohinton F Nariman, Surya Kant, V. Ramasubramanian – JJ and Ashwini Kumar Upadhyay v. Union of India 2026 SCC OnLine SC 741 = 2026 KHC 6328 (SC) – Vikram Nath, Sandeep Mehta – JJ, was elucidated while discussing the scope and amplitude of Section 156 (3) Cr.P.C and not Section 175 BNSS. Hence, whatever reasoning given in those verdicts cannot hold good in the case of Section 175 BNSS where the Magistrate is not invested with the power to order investigation in all cases. The said power is confined only to cases falling under Section 175 (3) and 175 (4) of BNSS. Again, the view taken in Hemant Dushmana v. CBI AIR 2001 SC 2721 = (2001) 7 SCC 536 = 2001 KHC 870 – K. T. Thomas, S. N. Variava – JJ, interpreting Section 173 (8) Cr.P.C to hold that by ordering further investigation “the Magistrate is triggering into motion the power of the police”, also cannot be pressed into service under the corresponding Section 193 (9) of BNSS in view of the proviso thereto which unequivocally suggests that further investigation can be initiated only by the investigating agency and not by the Court. The absence of a general power of the Magistrate to order further investigation either under Section 175 (3) or elsewhere in the BNSS, cannot the surmounted by recourse to Section 193 (9) BNSS which is really the power of the investigating agency and not the Magistrate, to conduct “further investigation”. The proviso thereto makes it clear that further investigation in a case “pending trial” can be conducted by the Police only with the permission of the Court. So, it is not the Court but the investigating agency which orders further investigation under Section 193 (9) BNSS. I find it difficult to subscribe to the views taken by some High Courts that further investigation under Section 193 (9) BNSS can be ordered by the Court especially in the light of the decision of the Supreme Court in Paliniswamy Veeraraja v. State of Karnataka 2026 SCC OnLine SC 940 = 2026 KHC 7284 (SC) – Sanjay Karol, N. Kotiswar Singh – JJ, wherein it was held that further investigation conducted by the police under Section 193 (9) without the permission of the Magistrate was vitiated, thereby alluding that further investigation can be initiated under Section 193 (9) BNSS only by the investigating agency and if the trial of the case has started, such further investigation can be so initiated only with the permission of the Court.

Private Complaint

4. Absence of such a suo motu power to the Magistrate in the BNSS corresponding to the power under Section 156 (3) Cr.P.C. can give rise to drastic consequences in the case of a “private complaint” also. If the Magistrate was not satisfied that there is sufficient ground for proceeding against the accused, the Magistrate was given the discretion under the Cr.P.C to do any of the following actions –

  1. Without taking cognizance of the offence, the Magistrate could order an “investigation”/“further investigation” by the police under Section 156 (3) Cr.P.C. (In such a case the “complaint” will be treated as the First Information Report), or
  2. The Magistrate could take cognizance of the offence on the additional report filed by the police under Section 173 (2) Cr.P.C. after following Action No: 1 above.
  3. After taking cognizance of the offence, on the original “complaint”, the Magistrate could order an investigation under Section 202 (1) Cr.P.C. (This will be only for the limited purpose of aiding the Magistrate to decide whether there is sufficient ground for proceeding).
  4. The Magistrate could also revert back to the original “complaint” and take cognizance of the offence and issue process to the accused.

5. Now under the BNSS option No. 1 above is not available to the Magistrate except in the rare cases covered by Section 175 (3) and 175 (4) BNSS. Consequently option No. 2 above is also not available to the Magistrate. Options Nos: 3 and 4 are available to the Magistrate under the BNSS also.

There is thus, no discretion or power given to the Magistrate under the BNSS to order “investigation”/“further investigation” before he can finally take cognizance of the offence in a case instituted on a “Private Complaint”.

MY CONCLUSION

6. In the light of the discussion above, the resultant position is that the “general power” to suo motu order “investigation”/“further investigation” which was available to the Magistrate in cases instituted both on a “Police Report” or a “private complaint” Section 156 (3) Cr.P.C., is no more available to the Magistrate after the coming into force of the BNSS. Whatever supervisory jurisdiction attributed to the Magistrate by the Constitutional Courts while interpreting Section 156 (3) Cr.P.C, cannot be applied to the BNSS in the absence of an enabling provision in Section 175 or any other provision in the BNSS.

Author is Former Judge, High Court of Kerala

Views Are Personal. 

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