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The Code of Criminal Procedure 1973 (CRPC) provided for the registration of the FIR by the police officer if the information discloses a cognizable offence. If the police officer fails to do his duty, the appropriate remedy for the complainant is to move the SP. If he also fails in his duty, the complainant can file an application under section 156(3) CRPC, requesting the magistrate to order registration of FIR by the police officer.

Now, in this scenario if the magistrate rejects the application under 156(3) CRPC, can the police officer thereafter, on the same complaint presented by the complainant, register a FIR subsequently? This is the issue for consideration here. This question was at the heart of a recent judgment of Supreme Court, wherein the court held that it was permissible for the police officer to register the FIR subsequently, even though an application under 156(3) was rejected by the magistrate and the order was upheld by the session court in a revisional proceedings.

Scope of inquiry under section 154 CRPC/173 BNSS

It is a settled law that if the information received by a police officer discloses a cognizable offence, he is under a statutory duty to register the FIR. There are two steps involved in this process. In the first step, the police officer when he receives a complaint applies his mind and comes to a conclusion whether the information discloses a cognizable offence or not. In the second step, if he comes to a conclusion that it does disclose commission of cognizable offence, he has no option but to register a FIR. This position of law was settled by the judgment of Lalita kumari v. Govt. of UP 2013 INSC 748.(Lalita Kumari)

Section 173(1) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) corresponds to section 154(1) of the CRPC. The scope of inquiry as discussed above is not fully applicable to section 173(1) BNSS because of the exception which is introduced in the form of section 173(3) of the BNSS. Section 173(3) of the BNSS provides that the police officer in offences which are punishable for 3 years or more but less than 7 years has the power not to straight away register the FIR but to inquire into the allegations to find out if prima facie case is made out or not. The grounds or basis, on which Lalita Kumari was rendered, has been replaced by the legislative enactment of section 173(3) of the BNSS.

Scope of inquiry under section 156(3) CRPC/175(3) BNSS

Dissatisfied with the conduct of police officer under section 154(1) CRPC and the conduct of SP under section 154(3), in not registering the FIR, the aggrieved person has a further remedy to move the magistrate under section 156(3) CRPC. After the judgment of Priyanka Srivastava v. state of up 2015 INSC 239 (Priyanka Srivastava) the complaint filed before magistrate to order the registration of a FIR, needs to be filed with an affidavit. At this stage, the magistrate acts as a check on the conduct of executive in not fulfilling its statutory duty. The magistrate takes the case of complainant and inquires whether the allegations made in the complaint discloses a prima facie cognizable offence. If it does disclose a prima facie offence, he has two options either to treat it as an application under section 200 CRPC and take cognizance of offence or order an investigation if the offences require investigation. Conversely, when the information received does not prima facie disclose the commission of a cognizable offence but indicates the necessity for inquiry, in that case a preliminary inquiry may be conducted or a report from jurisdictional police officer may be called for in order to ascertain whether the offence complained is cognizable or not and if still no cognizable offence is made out, the application is dismissed.

Section 175(3) BNSS corresponds to section 156(3) of the CRPC. Section 175(3) BNSS prescribes that the application should be accompanied by an affidavit, which is a recognition of Priyanka Srivastava by the legislature. The provision also mandates the magistrate to hear police officer on refusal to register the FIR, this condition provides the foundation of a reasoned order. Section 223 of the BNSS corresponds to section 200 of the CRPC. A proviso has been added to the section which provides for the hearing of the proposed accused before cognizance is taken.

Separation of power in india and its application to the issue formulated

It is settled law that separation of power, which is recognized as the basic structure of our constitution, does not apply rigidly. The functions may overlap between the three different institutions of the state i.e the judiciary, executive and the legislature. Intricately embedded within the doctrine of separation of power is the system of checks and balances, which informs to the principle of accountability, so that power given to authority is not abused. Application of the above stated doctrine can be seen within the robust framework provided for registration of FIR and investigation into a cognizable offence. When the executive, whose function is to administer law, through its officer does not register the FIR under section 154(1) CRPC/173(1) BNSS, the framework provides a check on this action of executive by providing a remedy under section 156(3) CRPC/175(3) BNSS. Now, if a decision of executive is upheld by the judiciary within the framework provided by the CRPC, can it be held that executive can overturn the decision of judiciary? The answer to the query posed should be an emphatic 'no', because if this is allowed it would be amount to re-check of the judicial decision which is against the very principle of separation of power as administered in modern states. So, based on the above reasoning if a decision of rejection of application under section 156(3) /175(3) BNSS is taken by the judiciary, it cannot be overturned by the executive by registering the FIR under section 154(1)/173(1) BNSS. Both power under section 154(1) CRPC/173(1) BNSS and 156(3) CRPC/175(3) BNSS are independent, but once a decision of rejection under section 156(3) CRPC/175(3) BNSS is taken by the magistrate, section 154(1) CRPC/173(1) BNSS cannot be again used by the executive to invalidate the adjudication of judiciary.

Application of principles of res-judicata

The Supreme Court in the case of Pramod Kumar Shukla v. State of up 2026 INSC 887 (Pramod Kumar) held that principles of res judicata is not applicable to the issue because the adjudication rendered by the magistrate cannot be held to be on merits and does not test veracity of the complaint. The court held that the order is merely confined to direct investigation, the court does not take cognizance, nor does it proceed under chapter XV of the code.

This reasoning of the court can be challenged on the premise that the Supreme Court in Priyanka Srivastava held that a magistrate while adjudicating an application under section 156(3) CRPC applies judicial mind. The 'merit' argument of Supreme Court can be looked at from the level of inquiry needed at the stage of entertaining an application under section 156(3) CRPC. The court decides an issue (whether the allegations prima facie disclose a cognizable offence?), before coming to a conclusion whether the application needs to be rejected or not. This the magistrate does by applying a judicial mind. So, it cannot be said that there is no judicial adjudication at all. In a plethora of judgments, Supreme Court has reiterated[1] that Latin maxim 'res judicata pro veritate accipitur' (a thing adjudicated is received as the truth) is applicable to criminal law no less than civil law, so it is hard to comprehend why in this case it won't be applicable. This can be looked at from adjudication of order 1 rule 10 Code of Civil Procedure, 1908 (CPC) application. When a civil court decides to reject the application of order 1 rule 10 CPC, and not to implead the proposed person, it is not adjudicating on the merits of the case, but still another application of order 1 rule 10 CPC for same person is barred by the principles of res-judicata. In these kinds of proceedings, there is only one party, and res judicata is applicable. So, there is no reason why principles of res judicata should not be made applicable here.

It would be fruitful to visit para 7 of the Pramod Kumar judgment, at this stage wherein it can be discerned that the application was not dismissed due to any formal default. The reason for dismissal appears to be that the allegations did not prima facie constitute any cognizable case, because had it been a case where the magistrate had come to a finding that although the allegations disclose a prima facie case but there is no need for investigation by police, it would have treated the application as a complaint under section 200 read with section 190(1)(a) of crpc.

Application of Issue-estoppel in criminal proceedings

It is gainful to note here the judgment of Ravinder Singh v. State of Haryana 1975 INSC 24, which laid down the principle of issue estoppel in criminal proceedings. It was held that to invoke issue estoppel, fact in issue proved or not in the earlier trial must be identical with what is sought to be re-agitated in the subsequent trial. The essence of the rule of issue estoppel is that once a fact is decided by a competent authority, it should not be re agitated. There would be no harm in applying this principle to same proceedings, as in the case of decision under section 156(3) CRPC/ 175(3) BNSS and decision under section 154(1) CRPC/ 173(1) BNSS thereafter on the issue whether the complaint prima facie discloses cognizable offence or not.

Can Mahendri v. State of UP 2015 (Mahendri) be deemed to lay down 'law' under Article 141?

The Supreme Court in Pramod Kumar relied on the proposition of law laid down in Mahendri. The Supreme Court in Mahendri was also faced with a similar question that arose in Pramod Kumar, in a short and laconic order the Supreme Court held that a rejection of an application under section 156(3) CrPC does not bar a subsequent FIR by the police officer. This judgment cannot be said to lay down the law for what was held therein, because ratio decidendi of a judgment is the principle of law adopted having regard to the line of reasoning of the judge which alone binds in future cases. Such principle can only be laid down after a discussion of the relevant provisions and the case law on the subject. On a cursory reading of Mahendri, such ingredients are missing in the judgment. In a laconic ruling, the only reason given by the court is “The declining of the aforesaid prayer would not affect the merits of the controversy, nor would it reflect the veracity of the allegations made by the complainant in the First Information Report which was subsequently lodged on 10.10.2007.” This cannot form a precedent for the reasons above stated.

How would the dictum of PRAMOD KUMAR fare under the BNSS

Under section 175(3) BNSS, if the magistrate rejects the application of complainant the police officer subsequently cannot register the FIR under section 173(1) BNSS, due to the reason that section 175(3) BNSS explicitly states that the magistrate has the option of hearing the police officer before making any decision and also to make such inquiry as he thinks necessary. So, if a magistrate after making such inquiry as enumerated under section 175(3) comes to a finding that no cognizable case is made out and still the police officer registers a FIR subsequently, it would amount to overturning a decision of judicial forum by the executive which is impermissible.

On a conspectus of the above discussion, the proper remedy in a case where an application under section 156(3) Cr.P.C./175(3) BNSS is dismissed, with a finding that no cognizable case is made out, is to move the session court in revisional proceedings and thereafter, the High court and the Supreme Court if need be.

  1. Pritam Singh v. State of Punjab 1950 INSC 9 ↑

    Author Rajat Tomar is an Advocate based in Delhi & Prabha Kumari is an Advocate practicing at Delhi High Court. Views are personal.

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