Magistrate Doesn't Require Prior Sanction To Direct FIR Registration Under S.156(3) CrPC : Supreme Court

The Supreme Court today held that a Judicial Magistrate does not require prior sanction under Section 196/197 of the Code of Criminal Procedure for directing the registration of FIR under Section 156(3) of the CrPC.

"The requirement of prior sanction under Section 196 and 197 CrPC (or corresponding provisions in the BNSS) operates at the stage of taking cognizance and does not extend to the pre-cognisance stage of registration of FIR or investigation under Section 156(3) CrPC/Section 175(3) BNSS", the Court said.

Referring to Mohd. Yousuf v. Afaq Jahan (2006) 1 SCC 627, the Court observed -"The power exercised by a Magistrate under Section 156(3) of CrPC falls at the pre-cognisance stage. An order directing investigation under the said provision does not amount to taking cognizance of the offence."

Reference was also made to the judgment in State of Karnataka v. Pastor P. Raju (2006) 6 SCC 728 and Sakiri Vasu.

"A cumulative reading of the principles laid down in Pastor P. Raju (supra) and Sakiri Vasu (supra) makes the legal position abundantly clear that an order passed by a Magistrate under Section 156(3) of CrPC does not amount to “taking cognizance” of an offence within the meaning of Section 190 of CrPC," the Court held.

The Bench cautioned that any interpretation making registration of an FIR dependent on prior sanction would effectively invert the statutory framework governing criminal investigations and render the investigative provisions unworkable.

"The scheme of CrPC does not contemplate any embargo on the direction for registration of an FIR or the conduct of investigation at the pre-cognizance stage. To hold otherwise would amount to introducing a restriction not envisaged by the legislature. The process of criminal law is sequential: information of a cognizable offence must first be received; an FIR must then be registered; investigation must follow; a report under Section 173 of CrPC must thereafter be submitted; and it is only at that stage that the question of taking cognizance arises.

The requirement of sanction is, therefore, a condition precedent only for taking cognizance and not for the registration of an FIR or for the conduct of investigation. Any interpretation that makes the registration of an FIR contingent upon prior sanction would invert this statutory scheme and render the provisions relating to investigation unworkable."

The Court added that the reliance on judgments in Anil Kumar v. Ayyappa and L. Narayana Swamy v. State of Karnataka (2016) 9 SCC 598 are misconceived since they were in the context of the Prevention of Corruption Act. The Court also noted that the correctness of these judgments are under reference in Manju Surana v. Sunil Arora.

The observation came in a plea filed by CPI(M) leader Brinda Karat, challenging the Delhi High Court's rejection of her petition seeking FIR against BJP leader Kapil Sharma, Anurag Thakur, etc., for alleged hate speeches ahead of the 2020 Delhi riots.  The Magistrate had refused to direct registration of FIR on the ground that prior sanction was required, a view later upheld by the High Court. On merits, the Supreme Court approved the Delhi High Court's view.

Section 196 CrPC (S.217 BNSS) mandates that for taking cognizance of offences under Sections 295A, 153A and 153B IPC, prior sanction from the Government is required. Section 197 CrPC (S.218 BNSS) mandates prior sanction for takign cognizance of offences against public servants. 

Today, the Supreme Court partly allowed Brinda Karat's petition to the extent of setting aside the High Court's observation that under Section 156(3) CrPC a Magistrate cannot direct registration of FIR without prior sanction.

A bench of Justices Vikram Nath and Sandeep Mehta delivered the judgment in a batch of cases seeking directions against hate speeches/hate crimes. Observing that the existing law adequately addresses hate speech offences, the Court refrained from passing directions to create hate speech offences. While the bench declined to pass directions of the nature sought, it left it upon the legislative authorities to consider in their wisdom of any policy or legislative measures are required.

The Court further said that the duty of the police to register an FIR on disclosure of a cognizable offense is mandatory (as held in Lalita Kumari case). In case of non-registration of FIR, the CrPC/BNSS provide efficacious remedies. Such as, an aggrieved person can approach the Superintendent of Police under Section 154(3) CrPC/Section 173(4) BNSS and thereafter invoke jurisdiction of the Magistrate under Section 156(3) CrPC/Section 175 BNSS, or proceed by way of complaint under Section 200 CrPC/Section 223 BNSS.

"These remedies constitute a complete statutory architecture. The availability of such remedies, coupled with the supervisory jurisdiction of constitutional courts under Articles 32 and 226 of the Constitution, demonstrates that no legislative vacuum exists warranting the intervention sought. The appropriate course lies in faithful and even-handed enforcement of the existing law."

Headnote

Headnote Constitution of India – Article 32 vs. Statutory Remedies - Extraordinary Jurisdiction under Article 32 cannot be routinely invoked to bypass efficacious statutory mechanisms - The Supreme Court clarified that while constitutional remedies under Articles 32 and 226 remain available as vital safeguards against the failure of statutory authorities, this jurisdiction is extraordinary in nature - It ought not to be invoked in a routine manner to bypass the comprehensive, multi-tiered remedies provided under the statutory framework of the Code of Criminal Procedure, 1973 (now Bharatiya Nagarik Suraksha Sanhita, 2023). [Sakiri Vasu v. State of U.P. (2008) 2 SCC 409; Paras 56, 61, 98]

Code of Criminal Procedure, 1973 – Section 156(3) & Sections 196, 197 - Prior Sanction is NOT a precondition for directing registration of an FIR or conducting an investigation at the pre-cognizance stage - The Supreme Court set aside the Delhi High Court's view and ruled that the statutory requirement of obtaining prior sanction under Sections 196 and 197 of the CrPC operates strictly at the stage of "taking cognizance" by a Court - It does not extend to the anterior, pre-cognizance stage of registering an FIR or directing a police investigation under Section 156(3) - An order passed by a Magistrate directing an investigation under Section 156(3) does not amount to "taking cognizance" within the meaning of Section 190 of the CrPC - To condition the registration of an FIR upon prior sanction would invert the sequential statutory scheme and render investigative provisions unworkable. [Relied on State of Karnataka v. Pastor P. Raju (2006) 6 SCC 728; Sakiri Vasu v. State of U.P. (2008) 2 SCC 409; Paras 101-164]

Code of Criminal Procedure, 1973 – Section 154 & Section 156(3) - Mandatory Duty to Register FIR — Non-Registration Remedied by Efficacious Multi-Tiered Architecture - Where information discloses the commission of a cognizable offence, the registration of an FIR under Section 154 of the CrPC is mandatory, and the police hold no discretion to refuse it at the threshold - If the police fail or refuse to register an FIR, the CrPC provides a complete and comprehensive statutory architecture to address the grievance - The aggrieved person must first approach the Superintendent of Police under Section 154(3), and if the grievance persists, invoke the wide supervisory jurisdiction of the Magistrate under Section 156(3) to order registration and monitor the investigation. [Relied on Lalita Kumari v. Government of Uttar Pradesh (2014) 2 SCC 1 and Sakiri Vasu v. State of U.P. (2008) 2 SCC 409; Paras 47-56, 164]

Constitutional Law – Separation of Powers & Judicial Review - Judiciary cannot create or expand criminal offences or prescribe punishments in the absence of legislative action - The Supreme Court held that the authority to enact binding general norms of conduct, formulate policy, and choose legislative responses falls squarely within the exclusive province of the Legislature - Under the Doctrine of Separation of Powers embedded in the Indian Constitution, the functional demarcation between the organs is fundamental; one organ cannot usurp the essential functions of another - While Courts can fill interstitial gaps to protect fundamental rights when a absolute legislative vacuum or constitutional silence exists, they cannot supplant the legislative scheme or construct parallel regulatory regimes where the field is already fully occupied by substantive law. [Relied on SCWLA v. Union of India (2016) 3 SCC 680; Dr. Ashwini Kumar v. Union of India (2020) 13 SCC 585; Paras 25 98, 164]

Constitutional Law – Writ of Continuing Mandamus - Continuing Mandamus cannot be issued in anticipation of future contingencies or to micro-manage executive functions - The device of "continuing mandamus" is a judicial innovation designed to secure compliance with a declared right against institutional inertia, rather than a substantive standalone writ remedy - It cannot be deployed to keep matters pending in anticipation of future contingencies or possible defaults that have not yet arisen - To assume executive failure in advance and maintain continuous judicial oversight would violate the principle of institutional comity, transgress the doctrine of separation of powers, and unconstitutionally reduce the Court's role to the "micro-management" of matters falling strictly within the executive domain. [Relied on Lok Prahari v. Union of India (2021) 15 SCC 80 and National Federation of Indian Women v. Union of India (W.P. (C) No. 719 of 2023; Paras 65, 67, 69, 73, 75]

Hate Speech & Preamble – Fundamental Values - Substantive meaning of 'Fraternity' and civilisational ethos of 'Vasudhaiva Kutumbakam' run fundamentally counter to Hate Speech - Supreme Court observed that the field of substantive criminal law addressing hate speech is fully occupied by existing statutory provisions (such as Sections 153A, 153B, 295A, 298, and 505 of the IPC/BNS), which penalise speech threatening communal harmony and public order - Hate speech is fundamentally antithetical to the core constitutional value of "Fraternity" enshrined in the Preamble and the Fundamental Duty cast under Article 51A(e) to promote harmony and the spirit of common brotherhood - Fraternity mandates a reciprocal obligation among citizens to respect the equal dignity of others - True citizenship cannot be reduced to a tool of exclusion or division based on an "us versus them" binary, which directly corrodes both the secular fabric of the Republic and India's civilisational maxim of vasudhaiva kutumbakam (the world is one family). [Relied on K.S. Puttaswamy v. Union of India (2017) 10 SCC 1 and Section 6-A of the Citizenship Act, 1955, In Re (2024) 16 SCC 105. (Paragraphs 78, 80, 81, 86, 88, 95]

Contempt of Court – Invocation of Contempt Jurisdiction - Demonstrated "hesitation" or failure to act despite knowledge of a cognizable offence is a sine qua non for invoking contempt - Where the Supreme Court has issued pan-India interim directions (orders dated 21.10.2022 and 28.04.2023) mandating suo motu registration of FIRs against hate speech infractions, the failure to register a case must stem from a willful default or standard of hesitation despite having active knowledge of the cognizable offence - In cases where a petitioner has not even approached the competent authorities or placed the relevant material before them by way of a complaint, a failure to act suo motu cannot ipso facto translate to willful disobedience or automatic contempt - Foundational facts demonstrating institutional awareness and subsequent inaction are a prerequisite. [Paras 156 - 160]

Case Title: Brinda Karat v.State of NCT of Delhi and others SLP(Crl) 5107/2023 (and connected cases)

Case Title : Ashwini Kumar Upadhyaya v. Union of India, W.P.(C) No. 943/2021 (and connected cases)