Orissa HC: Magistrate Must Hear Police Before Ordering Investigation Under S. 175(3) BNSS on FIR Non-Registration
Safiya Malik
The Orissa High Court has dismissed a petition seeking a direction to the police to register a First Information Report (FIR) on the petitioner’s complaint. The court observed that the petitioner had not availed the statutory remedy available under the Bharatiya Nagarik Surakshya Sanhita, 2023 (BNSS), which provides for seeking an order of investigation from the Magistrate in case of non-registration of an FIR by the police. The court held that the petitioner must first approach the jurisdictional Magistrate and, accordingly, refused to entertain the petition.
The petitioner approached the High Court under Article 227 of the Constitution of India, seeking a direction to the police to register an FIR based on complaints lodged under Annexure-1 series. The grievance of the petitioner was that despite submitting complaints to the police, no FIR had been registered, necessitating judicial intervention.
During the hearing, the State opposed the petition, arguing that there exists a statutory mechanism for redressal of grievances regarding non-registration of FIRs. It was submitted that as per Chapter XIII of the BNSS, Section 175(3) specifically empowers the Magistrate to order an investigation if the police refuse to register an FIR. The State contended that the petitioner had not availed this remedy and had instead directly approached the High Court.
The High Court recorded that the petitioner had not sought relief before the Magistrate under the provisions of BNSS. It observed that established legal principles require an aggrieved party to first exhaust statutory remedies before invoking the extraordinary jurisdiction of the High Court.
The High Court relied on the decision of the Supreme Court in Sakiri Vasu v. State of Uttar Pradesh, (2008) 2 SCC 409, wherein it was held: "The Magistrate has very wide powers to direct registration of an FIR and to ensure a proper investigation. The High Court should discourage the practice of filing a writ petition or petition under Section 482 CrPC simply because a person has a grievance that his FIR has not been registered by the police, or after being registered, proper investigation has not been done by the police."
The court further referred to Sudhir Bhaskarrao Tambe v. Hemant Yashwant Dhage, (2016) 6 SCC 277, wherein the Supreme Court reiterated that in cases of non-registration of an FIR, the aggrieved person must approach the Magistrate under Section 156(3) CrPC and not seek relief under Article 226 of the Constitution.
Additionally, the court cited the recent decision in Om Prakash Ambadkar v. State of Maharashtra, 2025 which emphasized that a Magistrate must not mechanically order an investigation under Section 175(3) BNSS without first examining the necessity of police involvement. The Supreme Court held: "The Magistrate is not expected to mechanically direct investigation by the police without first examining whether the fact and circumstances of the case require the assistance of the State machinery. If the allegations in the complaint are simple and can be directly tried by the court, the Magistrate should proceed with recording evidence instead of directing an investigation under Section 156(3) CrPC."
The High Court recorded that Section 175(3) BNSS imposes additional conditions compared to Section 156(3) CrPC, as the Magistrate must:
- Consider the complainant's application supported by an affidavit under Section 173(4) BNSS.
- Conduct an inquiry, if necessary, before ordering an investigation.
- Consider submissions made by the police officer before passing an order.
The court stated that these requirements ensure a judicial application of mind before directing an investigation.
The High Court issued the following directions:
- The petition seeking a direction to the police to register an FIR is dismissed.
- The petitioner is granted liberty to approach the jurisdictional Magistrate under Section 175(3) BNSS for appropriate relief.
- The Magistrate, upon being approached, shall consider the complaint in accordance with law and decide whether an investigation should be ordered.
Case Title: Swarnalata Jena v. State of Odisha & Ors.
Case Number: CRLMP No.1633 of 2024
Bench: Justice Gourishankar Satapathy
[Read/Download order]
