Procedural Remedy Under Section 173(4) of the BNSS: A Critical Analysis
Introduction
Section 173(1) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), ostensibly codifies the mandatory duty of the police to register a First Information Report (FIR) upon receiving information that discloses a cognizable offense. However, the introduction of sub-sections (3) and (4) to Section 173 creates a statutory dilemma that potentially undermines this mandate and places a victim’s right to access the criminal justice system in jeopardy.
Preliminary Inquiry Under Section 173(3)
Section 173(3) permits the officer in charge of a police station—with the prior permission of an officer not below the rank of Deputy Superintendent of Police—to conduct a preliminary inquiry to ascertain whether a prima facie case exists for proceeding in matters where the offense is punishable by three to seven years of imprisonment.
Hierarchical Remedy Under Section 173(4)
Alongside this gatekeeping mechanism, Section 173(4) introduces a hierarchical filter, stating that if an application to the Superintendent of Police fails to yield an investigation, the aggrieved person may apply to the Magistrate.
Statutory Dilemma and Access to Justice
This article contends that Section 173(4) of the BNSS is conceptually and operationally at odds with the structural framework inherited from the Code of Criminal Procedure (CrPC). Under the doctrine of separation of powers, the three organs of the state operate within independent spheres.
However, by introducing this specific procedural remedy, the legislature effectively blurs these constitutional boundaries. The independent judicial remedy of approaching the magistrate—originally a distinct, parallel statutory safeguard under the CrPC framework—has been fundamentally altered.
Dilution of the Magistrate Remedy
Section 173(4) of the BNSS dilutes this safeguard by reducing it to a secondary recourse contingent upon administrative failure.
Crucially, while the text dictates that a victim may apply to the magistrate, the statute forces them to navigate external judicial avenues—specifically, seeking a directed investigation under Section 175(3) of the BNSS (formerly Section 156(3) of the CrPC).
Burden Shifted to the Victim
By converting these judicial remedies into conditions precedent for an executive duty, the State abdicates its primary parens patriae obligation, shifting the burden onto the victim to activate the courts.
Provisions of Section 173 and Its Scope
Before evaluating the legislative implications and operationality of Section 173 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (hereinafter ‘BNSS’), it is necessary to outline the relevant statutory text. The provision reads as follows:
Section 173. Information in Cognizable Cases
“Section 173. Information in cognizable cases.
(1) All information relating to the commission of a cognizable offense, irrespective of the area where the offense is committed, may be given orally or by electronic communication to an officer in charge of a police station, and if given—
(i)Orally, it shall be reduced to writing by him or under his direction and be read over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it.
(ii) by electronic communication, it shall be taken on record by him on being signed within three days by the person giving it,
and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may by rules prescribe in this behalf:
Provided that if the information is given by the woman against whom an offence under section 64, section 65, section 66, section 67, section 68, section 69, section 70, section 71, section 74, section 75, section 76, section 77, section 78, section 79 or section 124 of the Bharatiya Nyaya Sanhita, 2023 is alleged to have been committed or attempted, then such information shall be recorded, by a woman police officer or any woman officer:
Provided further that—
(a) in the event that the person against whom an offence under section 64, section 65, section 66, section 67, section 68, section 69, section 70, section 71, section 74, section 75, section 76, section 77, section 78, section 79 or section 124 of the Bharatiya Nyaya Sanhita, 2023 is alleged to have been committed or attempted, is temporarily or permanently mentally or physically disabled, then such information shall be recorded by a police officer, at the residence of the person seeking to report such offence or at a convenient place of such person’s choice, in the presence of an interpreter or a special educator, as the case may be;
(b) the recording of such information shall be videographed;
(c) The police officer shall get the statement of the person recorded by a magistrate under clause (a) of subsection (6) of section 183 as soon as possible.
(2) A copy of the information as recorded under subsection (1) shall be given forthwith, free of cost, to the informant or the victim.
(3) Without prejudice to the provisions contained in section 175, on receipt of information relating to the commission of any cognizable offense, which is made punishable for three years or more but less than seven years, the officer in charge of the police station may, with the prior permission from an officer not below the rank of Deputy Superintendent of Police, considering the nature and gravity of the offense,
(i)proceed to conduct a preliminary inquiry to ascertain whether there exists a prima facie case for proceeding in the matter within a period of fourteen days; or
(ii) proceed with investigation when there exists a prima facie case.
(4) Any person aggrieved by a refusal on the part of an officer in charge of a police station to record the information referred to in sub-section (1) may send the substance of such information, in writing and by post, to the Superintendent of Police concerned, who, if satisfied that such information discloses the commission of a cognizable offense, shall either investigate the case himself or direct an investigation to be made by any police officer subordinate to him, in the manner provided by this Sanhita, and such officer shall have all the powers of an officer in charge of the police station in relation to that offense, failing which such aggrieved person may make an application to the Magistrate.”
Overall Reconstruction of Section 173 of the BNSS
An overall reconstruction of Section 173 of the BNSS reveals that the statute has adopted a qualified mandatory framework for recording information regarding cognizable offenses and supplying a copy of that recorded information to the informant, a process that carries over the core rules of the former Section 154 of the CrPC. However, Section 173(3) categorizes cognizable offenses based on the quantum of punishment, thereby making specific offenses subject to a preliminary inquiry by a police officer prior to the registration of an FIR. Further, Section 173(4) outlines the default remedy when such information is refused, establishing a two-tiered mechanism: the first tier vests initial discretion in the executive, while the second tier culminates in judicial scrutiny through an application to the magistrate.
Statutory Remedy Under Section 173(4) of the BNSS
The BNSS, 2023, under Section 173(4), provides a statutory remedy when the registration of an FIR for a cognizable offense is refused under Section 173(1). The legislative wisdom behind this remedial framework, along with its operational mechanics and inherent lacunae, is critically examined below.
A Critical Analysis of Section 173(4)
i) Section 173(4) of the BNSS represents a structural reconstruction of Section 154(3) of the erstwhile Code of Criminal Procedure (CrPC). Functionally, Section 173(4) serves as the default statutory remedy for grievances arising under Section 173(1). While retaining the core framework of the previous code, the legislature has explicitly introduced a two-tiered remedial mechanism to enforce the right to register a First Information Report (FIR), culminating in the specific remedy of an application to the magistrate.
ii) Except for the newly introduced phrase “failing which such aggrieved person may make an application to the Magistrate,” the text of Section 173(4) remains largely unaltered. However, in enacting this framework, the legislature failed to fully reconcile Section 173(4) with the novel provisions, concepts, and procedural shifts introduced elsewhere in the reformed section [173(4)]. Crucially, this legislative modification must be verified against the statutory mechanism provided for a preliminary inquiry under Section 173(3).
iii) Scrutinizing this reconstructed provision requires evaluating whether this introduced phrase aligns with the fundamental object and purpose of the law. Specifically, it must be determined:
- Whether the statutory expressions carried over from the old framework remain contextually and operationally consistent with the overhauled legislative architecture?
- Is the newly specified judicial remedy consistent with the principal objective of the section?
- Does this remedy adequately safeguard the right to register an FIR under existing constitutional mandates?
- Furthermore, do these operational mechanisms encompass all procedural protections recognized under the old Code while addressing the modern legal realities brought about by this restructuring?
- Finally, does the new scheme protect the statutory rights of citizens with the same efficacy expected under the previous Code and the constitutional mandates of due process and equal protection?
3.1. The Expressions “Refusal” and “To Record the Information Referred to in Sub-Section (1)”
i) In Section 173(4), the term “refusal” is explicitly tied to the failure “to record the information referred to in subsection (1).” Given the distinct scope of Section 173(3), a refusal under that subsection stems from entirely different statutory contingencies. Under Section 173(3), a refusal may manifest as an adverse conclusion reached in a preliminary inquiry, the application of arbitrary discretion, a failure to properly conduct the inquiry, or a flawed subjective assessment of a prima facie Therefore, a “refusal” arising out of a subsection (1) and a “refusal” emerging from a subsection (3) inquiry stand on entirely different legal footings. Despite this sharp divergence, the legislature has failed to provide any specific remedial measures to challenge the arbitrary exercise of discretion or faulty assessments made by an officer-in-charge while acting under Section 173(3).
ii) When information regarding a cognizable offense is received at a police station under Section 173(1), the officer’s discretion to initiate a preliminary inquiry is governed by Section 173(3). This discretion exists at the very inception, after the receipt of information but before formal registration. Consequently, during this interim period, two contingencies may arise: either the officer-in-charge refuses to register the information, or they choose to exercise their discretion under subsection (3). When the officer opts to exercise discretion under subsection (3), it cannot be deemed a “refusal to record” under the primary section; on the contrary, the officer is channeling the information through the path provided by the statute. Therefore, a subsequent refusal following an inquiry under subsection (3) assumes a completely different legal complexion.
iii) When information disclosing a cognizable offense is first received, the officer-in-charge primarily operates under Section 173(1). However, if instead of rejecting the information outright, the officer subjects it to verification under the legislative authority of subsection (3), this tracking cannot be classified as an immediate refusal—even if registration is ultimately denied under subsection (4) following the preliminary inquiry. The power to conduct a preliminary inquiry under subsection (3) inherently includes the power to refuse the recording of such information; otherwise, the logical purpose of the provision would be frustrated. Consequently, an outright refusal under Section 173(1) and a refusal following an inquiry under Section 173(3) stand on entirely different legal footings.
iv) Section 173(4) explicitly covers only those instances of refusal arising under Section 173(1). Yet, distinct occasions of refusal frequently occur after a preliminary inquiry is conducted under subsection (3). While the absence of a prima facie case remains the standard justification for an officer-in-charge to refuse registration under subsection (3), an aggrieved person may have legitimate procedural objections. These include the improper exercise of discretion to initiate the inquiry, a flawed appreciation of the statutory criteria, a lack of due diligence, erroneous findings on the prima facie threshold, or any other illegal, malicious, or biased act by the police. Consequently, the legislature ought to have provided an independent statutory remedy to address these post-enquiry contingencies. By failing to include such a mechanism under Section 173(3), the legislature has effectively left the aggrieved person remediless in these scenarios.
Thus, despite subsection (3) physically succeeding subsection (1) in the statute, the legislature has effectively carved out a distinct procedural phase for certain offenses. The operational field of these two subsections remains completely separate until the final registration of the offense. Consequently, a refusal contemplated under the terms of Section 173(1) cannot logically or textually cover the unique operational scope of a refusal under Section 173(3).
3.2. The Expression “Failing Which Such Aggrieved Person May Make an Application to the Magistrate”
i) By adding the aforesaid expression, the legislature specified a second-tier default remedy. Under subsection (4), the first default remedy is sending the substance of the information, in writing and by post, to the Superintendent of Police concerned, while the second is making an application to the Magistrate. While specifying this second remedy to approach the magistrate, the legislature has not specified under which section the aggrieved person may apply. By keeping the specification of the provided remedy vague, the legislature has left the aggrieved person directionless.
ii) Instead of specifying a particular remedy to enforce an aggrieved person’s right to an FIR, the legislature closed the directly accessible remedy by an independent mechanism that existed under Section 156(3) of the old CrPC. Through the reconstruction of Section 175(3) of the BNSS, the scope and working of the provision have been restricted to the scheme and consequential relief of Section 173(4). By enacting such provisions, the legislature has curtailed the right to an FIR instead of protecting the rights of the victim and society. Accountability in law enforcement matters deeply to society, yet the legislature has forgotten its obligations toward the citizen.
iii) By enacting this provision, an executive function of the State is imposed on the judiciary, compelling the aggrieved person to knock on the doors of the court not for any fault of their own, but due to the failure of the Executive. Surprisingly, when an aggrieved person approaches the judiciary, it is not the fault of the executive but the right of the aggrieved person that comes under judicial scrutiny.
iv) The right of a citizen to approach the police machinery for the protection of life, liberty, and property flows directly from Article 21 of the Constitution. Correspondingly, it is the fundamental duty of the State under the Directive Principles to ensure accessible, effective, and non-illusory mechanisms for law enforcement. The police, as the primary executive organ of the State, are constitutionally obligated to register and investigate cognizable offenses; this is not a discretionary service but a sovereign function.
v) Section 173(4) of the BNSS, by mandating that an aggrieved person “first approach the Superintendent of Police, and failing which may make an application to the Magistrate,” commits a conceptual error. It conflates two distinct remedies:
- The primary, executive remedy of approaching the police, which is a facet of the State’s obligation under Article 21.
- The judicial remedy of approaching the magistrate, which was an independent statutory safeguard under the scheme of the CrPC but has now been fundamentally changed by the BNSS.
vi) Section 173(4) of the BNSS diluted the effect of this statutory safeguard under the CrPC and converted it into a restrictive, alternative remedial measure. The judicial remedy exists to check executive default, not to substitute executive duty. When the statute makes a judicial application a condition precedent, it effectively abdicates the state’s primary obligation and shifts the burden onto the victim to activate the judiciary. This violates the doctrine of parens patriae. Thus, Section 173(4) converts a right into a concession, making access to justice contingent upon exhausting a hierarchical ladder. This is antithetical to the constitutional scheme, where the state must proactively protect citizens rather than passively wait to be compelled by the courts. Therefore, it can be said that the final sentence of Section 173 sounds the death knell for a citizen’s right to an FIR.
The Dilution of Administrative Accountability: Section 173(4) Vis-À-Vis the Erstwhile CrPC
i) Under the scheme of the Code of Criminal Procedure, 1973 (CrPC), transmitting a copy of information regarding a cognizable offense to the Superintendent of Police (SP) under Section 154(3)—upon the default of a station officer—was never a mere procedural formality. Instead, the legislature imposed a strict supervisory duty on the SP to safeguard the integrity of subordinate actions and ensure that no cognizable crime went unaddressed. Consequently, when local police denied registration, this safeguarding duty shifted squarely to the SP, who possessed the disciplinary power to penalize defaulting officers. As the chief administrative authority of the district, the SP was bound to ensure that subordinates did not violate the statutory rights of citizens and was expected to promptly initiate departmental action against delinquent officers when such violations occurred.
ii) However, by abandoning this original legislative intent, Section 173 of the BNSS introduces an unnecessary layer of institutional friction between the executive’s obligation to enforce the law and its duty to protect citizens’ rights. The current framework entirely lacks specific checks to address the simultaneous administrative inaction of both the officer-in-charge and the SP. This leaves informants helpless when their right to access justice is first denied at the police station and subsequently ignored when grievances are sent via Registered Post Acknowledgement Due (RPAD). Furthermore, the statute prescribes no time limit for the SP’s application of mind, nor does it mandate that a refusal to register an offense be communicated to the informant with reasons. Moreover, the BNSS fails to provide an immediate or equivalent remedy when the SP abdicates their power and attaches no penal consequences for delinquent officers defaulting under Section 173(1) or Section 173(4). Both the Station House Officer and the Superintendent of Police should be statutorily required to notify the informant of a decision to decline FIR registration accompanied by a reasoned order.
The Dilution of Substantive Rights Through Procedural Remedies Under Section 175(3)
i) The statutory scheme of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, introduces a fundamental shift in how executive non-compliance is addressed at the threshold stage of criminal justice administration. Under Section 173(4) of the BNSS, an informant or victim who is aggrieved by a police officer’s refusal to register a First Information Report (FIR) is directed to apply to the Magistrate. This statutory requirement is fundamentally at odds with the core architecture of criminal jurisprudence. Criminal law is designed as a state-driven process wherein the executive investigates and the judiciary supervises. By creating a parallel, direct-access route to the magistrate at the initial stage, Section 173(4) collapses the institutional separation of powers between the executive and the judiciary.
ii) Although Section 173(4) vaguely states that an aggrieved person may apply to a magistrate without prescribing a specific mechanism, the statutory framework of Section 175(3) explicitly operationalizes this judicial remedy. To evaluate the legislative implications and operationality of this intervention, it is necessary to examine the statutory text of Section 175(3), which reads as follows:
“175. Police Officer’s Power to Investigate Cognizable Case.
(1) xxx…xxx…xxx*
(2) xxx…xxx…xxx*
(3) Any magistrate empowered under section 210 may, after considering the application supported by an affidavit made under subsection (4) of section 173 and after making such inquiry as he thinks necessary and submission made in this regard by the police officer, order such an investigation as above-mentioned.
(4) xxx….xxx….xxx”
By reading these provisions in tandem, it becomes evident that the legislature now routes aggrieved citizens directly to the magistrate’s court to enforce their baseline rights. This framework burdens individuals with proving that they have fully exhausted the preliminary administrative remedies under Section 173. Consequently, citizens approach the court not by choice, but because they are structurally compelled to do so by the statutory design. Under the architecture of the erstwhile Code of Criminal Procedure (CrPC), 1973, judicial remedies under Section 156(3) were never intended as a substitute for the mandatory commands of Section 154. Accessing public law enforcement machinery is a fundamental facet of the right to access justice; the legislature cannot compel individuals to approach the judiciary to remedy a baseline executive failure. The magistrate’s role under Section 175 is meant to be a post-refusal judicial review, not a pre-registration initiation. Rather than providing a robust mechanism to penalize defaulting executive officers, Section 173(4) effectively shields executive default, forcing innocent citizens to approach the courts to enforce rights compromised by the state.
iii) If the legislature intended for an informant to first exhaust police remedies under Section 173 before applying to a magistrate, the remedy before the court becomes purely residuary. This raises a crucial question: what precise parameters govern the refusal to register a cognizable offense under Section 173? It follows that unless a written, reasoned refusal is recorded under Section 173, the magistrate’s power under Section 175 cannot be properly invoked. In the previous CrPC framework, the legislature deliberately isolated this magisterial power within a distinct provision under Section 156(3). Had the legislative intent been to make judicial intervention a mandatory, sequential step to police procedures, such a power would have been integrated directly within Section 154 of the CrPC itself.
Executive Default Burdens the Victim’s Right to Remedy
i) Rather than establishing a mechanism of strict executive accountability, Section 175(3) of the BNSS constructs a procedural facade that effectively insulates police defaults from judicial consequences. While the provision mandates that the magistrate must consider the application, the affidavit under Section 173(4), and the “submissions made in this regard by the police officer,” it remains completely silent on the legal repercussions of an unjustifiable executive refusal. Furthermore, the statute suffers from deep textual vagueness; the phrase “the police officer” is left entirely undefined, leaving it unclear whether this refers to the defaulting Officer-in-Charge, the passive Superintendent of Police, or both.
ii) Most problematically, this framework leaves the police completely unaccountable for their statutory failures. Instead of requiring the state to justify its refusal to investigate a cognizable offense, the legislature shifts the entire evidentiary and procedural burden onto the informant or victim. The aggrieved citizen is forced to proactively prove that the underlying facts constitute a cognizable offense and must legally dismantle the police’s counter-submissions. Thus, Section 175(3) does not penalize executive abdication; instead, it transforms a baseline right to access public law enforcement machinery into a burdensome threshold litigation where the victim is penalized for the state’s institutional default.
iii) While the legislature mandates that a victim must first exhaust the remedies under Section 173(4) of the Sanhita before invoking Section 175(3), the Code fails to provide any statutory mechanism to empower magistrates to neutralize the adverse consequences of police refusal and delayed investigation. Consequently, when an aggrieved person finally secures a judicial directive under Section 175(3) after weeks of administrative delays, the magistrate is powerless to undo the intermediate spoliation of forensic evidence, the fading of witness memories, or the tactical advantages handed to the accused. Excessive investigative delays and procedural uncertainties within criminal administration render even the most progressive penal laws completely redundant and oppressive to the community.
Conclusion
The legislative architecture of Section 173 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, inherently compromises the mandate of immediate First Information Report (FIR) registration. While Section 173(1) uses the mandatory command “shall,” subsection (4) fragments this operational immediacy by institutionalizing police inaction as an expected procedural step. This mechanism fundamentally alters the structural framework inherited from the CrPC.
By transforming the independent judicial remedy into a secondary recourse contingent upon administrative failure, the legislature blurs the constitutional boundaries of the separation of powers. What was once a parallel statutory safeguard is now weaponized into a mandatory administrative hurdle. Consequently, the Sanhita normalizes institutional inertia and forces victims to navigate external avenues under Section 175(3) to activate the courts.
By shifting the logistical burden of executive non-compliance onto the informant, the State abdicates its primary parens patriae obligation, severely compromising the right to access the criminal justice system guaranteed under Article 21 of the Constitution of India.
