S. 175(3) BNSS | Mandatory For Magistrate To Hear Police Officer On Refusal To Register FIR Before Passing Order For Investigation: Orissa HC

The Orissa High Court has held that before passing order for investigation, it is mandatory for the Magistrate to hear the submissions of the police officer upon his refusal to register First Information Report (FIR), apart from considering the application supported by an affidavit made by the complainant to the Superintendent of Police and making proper inquiry.

Clarifying the position of law under the new criminal law regime, the Single Bench of Justice Gourishankar Satapathy said –

“…it is mandatory for the Magistrate to consider the submissions of the concerned Police Officer, so as to apply his mind judicially while considering both the complaint and the submission of the police officer, thereby ensuring the requirement of passing reason orders is complied with in a more effective and comprehensive manner.”

The petitioner had lodged an FIR, which was not registered by the police. Being aggrieved by such non-registration, she approached the High Court seeking a direction to the police authorities to register the FIR.

Hearing contentions advanced on her behalf, the Court said that the law is fairly well-settled that upon non-registration of FIR, the aggrieved person must approach the jurisdictional Magistrate by invoking relevant provisions of law. However, in this case, the petitioner approached the High Court directly instead of taking shelter of the jurisdictional Magistrate.

Justice Satapathy underlined that the required recourse of law available to an aggrieved person upon non-registration of his/her FIR has been provided under Chapter XIII of the Bharatiya Nagarik Suraksha Sanhita (BNSS).

“Sec. 175(3) therein provides powers to the Magistrate to order an investigation on the application of the aggrieved persons whose complaint has been refused by the police to register it as an FIR, provided the aggrieved persons satisfies the Magistrate to direct for an investigation,” it added.

The Bench referred to the law laid down by the Supreme Court in Sakiri Vasu v. State of Uttar Pradesh & Ors., wherein it was held that the High Courts should discourage the practice of filing writ petition or petition under Section 482 CrPC for non-registration of FIR or failure on the part of the police to conduct proper investigation subsequent to the filing of the FIR.

“For this grievance, the remedy lies under Sections 36 and 154(3) before the police officers concerned, and if that is of no avail, under Section 156(3) CrPC before the Magistrate or by filing a criminal complaint under Section 200 CrPC and not by filing a writ petition or a petition under Section 482 CrPC,” the top Court had held therein.

The aforesaid view was reiterated by the Apex Court in Sudhir Bhaskarrao Tambe v. Hemant Yashwant Dhage & Ors., wherein it was held as follows –

“…the complainant must avail of his alternate remedy to approach the Magistrate concerned under Section 156(3) CrPC and if he does so, the Magistrate will ensure, if prima facie he is satisfied, registration of the first information report and also ensure a proper investigation in the matter, and he can also monitor the investigation.”

After having considered the proposition of law enunciated by the aforesaid authoritative rulings, the Court referred to a recent judgment of the Supreme Court in the case of Om Prakash Ambadkar v. State of Maharashtra & Ors., 2025 LiveLaw (SC) 139. In this case, the highest Court outlined fundamental differences between the Section 156(3) of the CrPC and Section 175(3) of the BNSS. It had observed the following three major changes introduced by the latter provision.

1. First, the requirement of making an application to the Superintendent of Police upon refusal by the officer in charge of a police station to lodge the FIR has been made mandatory, and the applicant making an application under Section 175(3) is required to furnish a copy of the application made to the Superintendent of Police under Section 173(4), supported by an affidavit, while making the application to the Magistrate under Section 175(3).
2. Secondly, the Magistrate has been empowered to conduct such enquiry as he deems necessary before making an order directing registration of FIR.
3. Thirdly, the Magistrate is required to consider the submissions of the officer in charge of the police station as regards the refusal to register an FIR before issuing any directions under Section 175(3).

Thus, having regard for the above precedent, the Court reiterated that it is mandatory for the Magistrate to consider the submissions of the concerned police officer and also to apply his judicial mind while considering both the complaint and the submission of the police officer, so as to ensure passing of a reason order directing investigation.

In the present case, as the petitioner had failed to approach the jurisdictional Magistrate with her grievances vis-à-vis non-registration of FIR, the Court deemed it appropriate to dismiss the petition. Nonetheless, liberty was granted to her to approach the 'appropriate forum' to ventilate her grievances.

Case Title: Swarnalata Jena v. State of Odisha & Ors.

Case No: CRLMP No. 1633 of 2024

Date of Judgment: February 03, 2025

Counsel for Petitioner: Mr. R.D. Mohapatra, Advocate

Counsel for the State: Mr. S.K. Rout, Addl. PP

Citation: 2025 LiveLaw (Ori) 19

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