Section 175(3) of the Bhartiya Nagrik Suraksha Sanhita, 2023 (BNSS) which corresponds to section 154(3) of the Code of Criminal Procedure, 1973 (CrPC), empowers the magistrate to direct the police to register and investigate an incident of a cognizable offence when police fail to do so. The provision is a crucial safeguard for the victims in situations where police officers, under the influence, selectively or otherwise, disregard registering an FIR despite disclosure of a cognizable offence.

The provision reinforces the Section 173 BNSS (Section 154 of the CrPC) principle, which has also been reaffirmed in many cases, including in the well-celebrated case of Lalita Kumari v. Government of U.P. (2014) 2 SCC 1. that upon disclosure of a commission of a cognizable offence, police are duly bound to register an FIR and have no discretion to refuse investigation. While the provision reflects on the customary belief that the police are not to be trusted, its existence remains practically vital for securing the ends of justice.

Under the new law, BNSS, section 175(3) is the replacement for section 156(3) of the CrPC. Although fundamentally similar and with no apparent contradiction, section 175(3) additionally brings into play some additional safeguards to be considered by the magistrate before ordering an investigation.

KEY ADDITIONS IN 175(3) BNSS FROM 156(3) CrPC

The key additions under section 175 BNSS, in contrast to section 156 CrPC, are as follows:

1. Preliminary Recourse: Section 175(3) R/w section 173(4) makes it mandatory to first approach the Superintendent of Police (SP) upon refusal by the officer in charge of the police station to register a cognizable offence. The application under section 175(3) is mandated to be supported with a copy of an application u/s 173(4) to the Superintendent of Police (SP) as well as an affidavit to that effect.

2. Preliminary Inquiry: The magistrate is empowered to 'conduct an inquiry as he thinks necessary' before ordering an investigation u/s 175(3).

3. Say of the Police: It has further been made mandatory through section 175(3) for the Magistrate to hear the police officer on refusal to register a FIR before passing an order for investigation.

These additions are enhancing the procedural safeguards while preserving the fundamental purpose of the provision.

AN EFFECTIVE CHALLENGE TO AN ORDER UNDER SECTION 175(3) BNSS

The scope of challenge to the order under section 175(3) BNSS, 2023 still remains the same, narrow and critical to that of the order under section 156(3) CrPC. At the outset, it is of crucial importance to understand and note that an order of the Magistrate directing an investigation into a cognisable offence and registration of an FIR is in the nature of a final order and not interlocutory. As has been elucidated in detail in the case of Avinash v. The State of Maharashtra 2015 SCC OnLine Bom 5197, the said order is said to be final because it is conclusive as to the stage of proceedings qua the Court of Magistrate. Further, in view of the case of Arun P. Gidh v. Chandraprakash Singh, 2024 SCC OnLine Bom 1028, once an order under Section 175(3) is passed directing the investigating agency to conduct the investigation, the Magistrate does not retain any seisin over those proceedings. Thus, the order u/s 175(3) being a final to its nature, an effective challenge can be made to the same by preferring a criminal revision petition u/s 438 of the BNSS. The Hon'ble court, under its revisional powers, can very well examine the legality, propriety, as well as the correctness of the order under section 175(3).

It must be noted herein that while the power of revision u/s 438 BNSS is a concurrent power of the sessions court and the High Court. However, judicial propriety demands that it shall first be preferred before the sessions court.

While the sessions court, under its revisional powers, in every possibility can rule on the legality of the order by the magistrate, those powers do not extend to quashing the FIR once it has already been registered in compliance with the order. The justification for the limitation of the said power of the magistrate is twofold, i.e:

1. Independent power u/s 173 BNSS: As per Section 173 BNSS, it is mandatory for the police to register an FIR upon disclosure of a cognizable offence. An order under Section 175(3) merely directs the police to fulfil this duty. Therefore, an FIR registered pursuant to such an order cannot be said to be in total consequence of it. So, even if the Magistrate's order under Section 175(3) is later set aside for whatsoever reasons, the FIR registered based on the same would not be quashed or set aside. It is considered that FIR once registered is independent of the order under Section 175(3), and to quash the same it would be quashed on its own independent merits and not for the reason of the perversity of the order directing registration of the same.

2. Exclusivity of High Court: Power to quash an FIR is an inherent power strictly to be exercised only by the High Court in its jurisdiction u/s 528 BNSS. Therefore, simply put, deriving the same in the revisional jurisdiction would violate the scheme of the Act.

So, in all, the pertinent question would be: if the magistrate orders in favour of the complainant, then does that order of the magistrate u/s 175(3) become redundant for the challenge? If that be the case, then the procedural safeguard under the provision would only be on paper and selective. On that, it is argued that there will invariably be an interval of time between the order of the magistrate and the actual registration of an FIR. In view of the pronouncement of the Constitution Bench in the case of Lalita Kumari v. Government of U. P (2014) 2 SCC 1, the Station House Officer (SHO) is enjoined to register the FIR within seven days. Thus, though brief, there would always exist a window between the passing of an order by the magistrate directing registration of an FIR and the actual registration of an FIR. During this period, the aggrieved can approach the revisional court and get a stay of the order of the magistrate.

As long as the order of the magistrate directing an investigation and registration of crime has not been acted upon, a criminal revision petition would be an appropriate remedy where the revisional court will have all the powers to rule on its legality, either to quash it or to uphold it. Since after the registration of an FIR upon an order of the magistrate, filing of a revision petition would serve no purpose, the only remedy which then remains is the challenge to the FIR by filing a petition u/s 525 BNSS before the Hon'ble High Court, where everything could be set aside including the quashing of an FIR.

A criminal revision is an effective remedy only before the FIR is registered. Once registered, the proper recourse is a petition under Section 528 BNSS before the High Court for quashing the FIR

From the discussion above, it is clear that the scope of challenge to an order of the magistrate u/s 175(3) directing investigation and registration of an FIR is very narrow and time sensitive. Once the FIR is registered, the revisional court cannot undo the consequences of the Magistrate's order with its limited power under section 438 BNSS. The only remedy in that case that remains is the petition under section 528 BNSS, which can nullify the consequences of an order passed under Section 175(3) by quashing the FIR. That is the only way by which anything and everything done through the 175(3) order can be brought to nought.

Time is of the essence in cases of registration and investigation of cognizable offences. An opportunity for the accused to assail an order of the magistrate can never outweigh the importance of fair investigation and the rights of the victim. In this context, the limited scope for challenging an order under Section 175(3) of the BNSS appears justified.

While it is tough for any law to be infallible to misuse, the presence of the explicit provision in the form of section 175(3) serves the greater good by enabling prompt action against the inaction of the Police. The provision further reinforces and strengthens the broader scheme of checks and balances.

Author is an Advocate practicing at Bombay High Court. Views are personal.