A Critical Analysis of the Transition from Section 156 CrPC to Section 175 BNSS

1. Introduction

Section 156 of the Code of Criminal Procedure (CrPC) has been restructured into Section 175 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS). Section 156 of the CrPC historically delineated the power of a police officer to investigate cognizable offenses. In transitioning to the new framework, the legislature has introduced pivotal modifications to sub-sections (1) and (3), alongside a newly added sub-section (4). This statutory reconstruction significantly alters the scope, operational dynamics, and investigative scheme established under the erstwhile Code.

Statutory language plays a defining role in jurisprudence. Even minor textual changes can create systemic friction, as legal provisions do not operate in isolation; they are intrinsically connected to other statutes, the broader legislative framework, and the core mandate of the law. Consequently, when restructuring any statutory provision, the foundational theme, aim, and object of the section must be preserved. Any departure risks creating procedural dilemmas, disrupting the statutory scheme, and compromising the fundamental rights of citizens. This article critically analyzes the transition and implications of the reconstructed provisions from Section 156 of the CrPC to Section 175 of the BNSS.

2. Roadmap and Structure of the Article

This article proceeds in three parts. First, it traces the historical scope and procedural framework of Section 156 of the Code of Criminal Procedure (CrPC). Second, it maps the reconstructed architecture of these provisions under Section 175 of the Bharatiya Nagarik Suraksha Sanhita (BNSS). Finally, it delivers a critical appraisal of the structural changes introduced in Section 175(3) of the BNSS [formerly Section 156(3) of the CrPC], alongside the newly enacted Section 175(4) of the BNSS. This final section evaluates how this reconstructed framework alters the scope of judicial powers available to the magistrate. Furthermore, it analyzes the procedural complexities introduced in seeking a default remedy and in filing complaints against public servants. Ultimately, it assesses the direct impact of these modifications on the foundational rights of informants under Section 173(1) of the BNSS.

Part I

3. Scope of Section 156 of the CrPC

Before evaluating the legislative implications and operational dynamics of Section 156 of the Code of Criminal Procedure (hereinafter ‘CrPC’), it is necessary to outline the relevant statutory text. The provision reads as follows:

Section 156. Police Officer‘s Power to Investigate Cognizable Case

(1) Any officer in charge of a police station may, without the order of a magistrate, investigate any cognizable case that a court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII.

(2) No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one for which such officer was not empowered under this section to investigate.

(3) Any magistrate empowered under section 190 may order such an investigation as above-mentioned.

Section 156 of the Code of Criminal Procedure (CrPC) delineates the statutory power of a police officer to investigate cognizable offenses. Specifically, subsection (1) establishes the general investigative powers of the police, authorizing them to act without a magistrate’s order, and outlining the jurisdiction, the rank of the officer qualified to investigate, and the categories of cases covered. Sub-section (2) serves as a vital safeguard, protecting the validity of the investigation from being questioned on technical grounds of empowerment. Furthermore, subsection (3) empowers a competent magistrate to order an investigation of the nature contemplated under subsection (1).

A Critical Analysis of the Transition from Section 156 CrPC to Section 175 BNSS

Analysis of the Phrases in Sub-section (1)

4.1. “(1) Any officer in charge of a police station…”

Sub-section (1) specifically begins with the phrase “any officer in charge of a police station,” rather than simply “the officer in charge.” By including the word “any,” the legislature demonstrated its intent to broaden the scope of this authority, specifying not only the permanently designated official but every specific officer who holds or acts in that capacity at a given point in time, as covered under the definitions provided in Section 2(o) of the CrPC (now Section 2(r) of the BNSS).

This choice of phrase suggests that even if administrative guidelines or local regulations generally delegate investigations of specific offenses to specific officers, urgent circumstances may demand immediate action. Thus, the term “any” prevents a rigid hierarchy from delaying justice, functionally extending this critical power to whoever the qualified officer is acting in that capacity at the relevant time.

4.2. “…may…”

The interpretation of the word “may” in Section 156(1)—which states that an officer “may, without the order of a Magistrate, investigate”—presents a critical question of whether the provision confers discretion or imposes a mandatory duty.

Ordinarily, under settled principles of statutory interpretation, “may” is permissive, granting authority rather than creating an absolute obligation. However, a well-established exception dictates that “may” must be construed as “shall” when the statute creates a public duty or where absolute discretion would defeat the statutory objective.

Applied to Section 156(1), once the disclosure of a cognizable offense occurs under Section 154 or otherwise, the officer cannot decline investigation by treating the power as optional. Because the investigation of cognizable offenses is a sovereign public duty, an investigation under Section 156(1) must follow as an inevitable legal corollary.

4.3. “…without the order of a magistrate…”

This phrase clarifies that the statutory power vested in the officer in charge under subsection (1) is plenary and independent of judicial sanction. By deliberately excluding the requirement of a prior magisterial order, the legislature ensured that the police possess an investigative right free from judicial oversight at the threshold.

Consequently, within the territorial limits specified under this section, this power is not subject to the veto or prior approval of a magistrate, establishing a clear statutory boundary that prevents judicial interference during the initial, pre-cognizance phase of an investigation.

4.4 “….investigate any cognizable case…”

This clause clarifies the precise parameters of the offenses that an officer in charge of a police station is empowered to investigate. Notably, the legislature deliberately utilized the phrase “any cognizable case” rather than “any cognizable offense.” Even though both terms express and include the same qualifying element—namely, that a police officer may arrest without a warrant—they serve distinct contextual purposes.

Section 2(c) of the Code defines both terms as follows:

Section 2(c): “cognisable offence” means an offence for which, and “cognisable case” means a case in which, a police officer may, in accordance with the First Schedule or under any other law for the time being in force, arrest without warrant;

Further, under the First Schedule of the Code of Criminal Procedure, Part I specifies the classification of offenses under the Indian Penal Code, while Part II specifies the classification of offenses against other laws. This classification categorizes offenses as either cognizable or non-cognizable.

In this schedule, explanatory note (2)(ii) reads as under:

“Explanatory note: (2)(ii) the word ‘cognizable’ stands for ‘a police officer may arrest without warrant.'”

Consequently, the term “cognizable offense” indicates the specific category of crime, while “cognizable case” refers to the actual instance or matter where a police officer possesses this statutory power of arrest.

Regarding the term “police officer,” it is not defined within the code itself; instead, it is defined under the respective state police acts. For instance, Section 2(11) of the Maharashtra Police Act defines it as follows:

Section 2(11): “Police Officer” means any member of the Police Force appointed or deemed to be appointed under this Act and includes a special or an additional police officer appointed under section 21 or 22;

This definition of a police officer must be read alongside other provisions outlining the hierarchy and authority within the force. For example, Section 2(4) and Section 2(4A-1) of the same act state:

Section 2(4A-1): “Constabulary” means Police Constable, Police Naik, Police Head Constable, and Assistant Sub-Inspector;

Section 2(4): “constable” means a police officer of the lowest grade;

Ultimately, the statutory framework of a “cognizable case” first establishes the specific ranks and authorities that qualify as a “police officer” and subsequently outlines their legal power to arrest without a warrant under the First Schedule or any other law currently in force.

4.5. “…which a court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII…”

i) The core objective of the provision

The core objective of the provision of section 156(1) is to define the investigative powers of a police officer. In doing so, the legislature has explicitly delineated the specific subject matter over which these powers may be exercised.

While defining the investigative power of a police officer under Section 156(1), the legislature first expressed a non-obstante clause (i.e., “without order of Magistrate”). Secondly, it expressed the subject matter of investigation under this section (i.e., “any cognizable case”). Finally, in the later part of the section, the legislature expressed the jurisdictional area of the subject matter of the police investigation (i.e., “which a court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII”).

ii) The twofold jurisdictional clause

This jurisdictional clause is twofold. The former part (“which a court having jurisdiction over the local area within the limits of such station”) defines the territorial jurisdiction of the court over the local area within the limits of the police station.

The later part (“would have power to inquire into or try under the provisions of Chapter XIII”) defines the functional jurisdiction of the court under Chapter XIII of the Code.

Consequentially, while defining the functional jurisdiction of the police, the legislature has delineated the functional area of the court under Chapter XIII and connected it to the subject matter of the police investigation. These two implications are interpreted separately below:

“a court having territorial jurisdiction over the local area within the limits of such station”:

The territorial boundaries of a police station are defined by the government. These boundaries often differ from the territorial boundaries of the court holding jurisdiction over that police station’s area.

Therefore, the area of a single police station may fall under the jurisdiction of two or more courts. Consequently, while defining the functional area of investigation, the legislature first indicated the area of the jurisdictional court over the local area within the limits of such a station.

“would have power to inquire into or try under the provisions of Chapter XIII”: –

This second phrase indicates the functional area of the court that has jurisdiction over matters within the limits of such station under the provisions of Chapter XIII.

offense. Chapter XIII is titled “Jurisdiction of the Criminal Courts in Inquiries and Trials.” The provision explicitly connects the phrase regarding the subject matter of investigation (“any cognizable case”) to the jurisdiction of the court under Chapter XIII, which is specifically referred to to determine the place of trial of such offense.

iii) Rules of inquiry and trial under Chapter XIII

offense. Chapter XIII contains the rules of inquiry and trial based on the place of occurrence and other connected elements of the offense. The scheme of jurisdiction under this chapter carries a specific mechanism.

offense. Generally, all crimes are local and triable by local courts within whose jurisdiction they are committed, as established in Section 177. However, the scheme of the chapter is intended to enlarge the ambit of the situs (place) in which the trial may be held as much as possible. This minimizes technical pleas and the inconveniences caused by claims that an offense was not committed within specific local limits.

The ordinary rule founded in Section 177 CrPC is gradually extended in the subsequent sections of the chapter. The chapter governs contingencies where the place of the offense is uncertain, partly committed in different areas, a continuing offense, or consisting of several acts. Many other contingencies and connected elements are enumerated to establish the jurisdiction of the court to inquire into or try such offenses.

iv) Alignment of investigative and judicial jurisdiction

Through this provision, the legislature has structurally aligned the investigative competence of a police officer in a cognizable case with the territorial and functional jurisdiction of the local court.

This statutory alignment is anchored upon both the general and contingent territorial rules governing offenses under Chapter XIII of the CrPC (now Chapter XIV of the BNSS).

Ultimately, the legislature has imported these judicial criteria—originally enacted to determine a court’s jurisdiction over an inquiry or trial—to explicitly define, delimit, and govern the operational boundaries of executive investigative power.

Analysis of the Phrases in Sub-section (2)

5.1. “(2) No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one for which such officer was not empowered under this section to investigate.”

Sub-section (2) operates in direct pursuance of sub-section (1), functioning as a statutory shield to insulate the expansive powers secured under the preceding clause.

By amplifying the word “any” used in subsection (1), this provision guarantees that the broad functional interpretation given to an “officer in charge” is legally preserved throughout all subsequent stages of the criminal process.

By validating actions taken by any qualified official in the absence of the permanently designated official, this provision ensures that the urgent, immediate interventions necessitated by exigencies are not later struck down.

Anticipating that such administrative flexibility might lead to procedural overlap, the legislature inserted Section 156(2) as a vital curative provision.

By explicitly protecting proceedings from being called into question “on the ground that the case was one in which such officer was not empowered under this section to investigate,” this subsequent subsection ensures that technical or rank-based defects do not vitiate the validity of the investigation.

Key Legal Points From the Section 156 Analysis

Provision / Phrase	Core Legal Significance
“any officer in charge of a police station”	Broadens the authority to the officer who holds or acts in that capacity at the relevant time.
“may”	Raises the question of discretion versus a mandatory public duty to investigate cognizable offenses.
“without the order of a magistrate”	Establishes investigative authority independent of prior magisterial sanction.
“any cognizable case”	Defines the category of cases falling within the investigative authority under Section 156(1).
Territorial and functional jurisdiction	Connects police investigative competence with the territorial and functional jurisdiction of criminal courts.
Section 156(2)	Provides a statutory shield against challenges based solely on the officer’s lack of investigative empowerment under Section 156.

Legal Analysis of Section 156(1) and Section 156(2)

The analysis demonstrates that Section 156(1) is structured around three principal elements: the authority of the police officer, the subject matter of investigation, and the territorial and functional jurisdiction governing that investigation.

• Officer’s authority: The phrase “any officer in charge of a police station” is interpreted broadly.
• Nature of the case: The expression “any cognizable case” identifies the cases that fall within the statutory investigative framework.
• Judicial sanction: Investigation may proceed without a prior order of a magistrate.
• Territorial jurisdiction: The investigative power is connected with the local jurisdiction of the competent criminal court.
• Functional jurisdiction: Chapter XIII determines the relevant framework for inquiry and trial under the CrPC.
• Protection of proceedings: Section 156(2) protects police proceedings from being challenged merely because the officer was allegedly not empowered to investigate the case under the section.

Analysis of the Phrases in Sub-section (3)

6.1. “Any Magistrate…”

190. i) The expression “Any Magistrate,” as used in Section 156(3) of the Code of Criminal Procedure (CrPC), is qualified by the phrase “empowered under section 190.” This qualification explicitly indicates the specific categories of magistrates enumerated in, or acting under, Section 190.

191. ii) Specifically, Section 156(3) CrPC authorizes “any magistrate empowered under Section 190” to order a police investigation into a cognizable offense. This provision delineates the authority of a competent magistrate to direct an investigation akin to the police powers recognized under subsection (1). By utilizing the expansive prefix “Any” before “Magistrate,” the legislature initially widened the scope of the provision, only to deliberately restrict it through the subsequent jurisdictional anchor:

6.2. “…empowered under Section 190…”

1. i) The phrase “empowered under Section 190” serves as a deliberate jurisdictional qualifier. It intricately links the power to order an investigation under Section 156(3) with the formal source of authority found within Section 190 CrPC.

2. ii) The Mechanism of Statutory Importation and Qualification:

Whenever a statute confers power upon a specific authority, parliament may extend that same power to another authority in one of two ways:

• By Exportation: Reproducing the specific power within the statutory provision governing the recipient authority.
• By Importation: Mentally importing or referencing the external authority directly into the provision where the power resides.

iii) In both instances, the conferred power becomes subject to the general jurisdiction of the recipient authority. However, a distinct legal position emerges when an authority is imported alongside a qualified standard or specific condition. If an authority is imported with such a conditional qualifier, the exercise of that power becomes subservient not only to the authority’s general jurisdiction but also to the specific limitations and standards attached to that qualification. Whether the exercise of this power is governed by the authority’s general mandate, its qualified standard, or a hybrid of both, ultimately hinges upon legislative intent.

190. iv) Under Section 156(3) CrPC, the legislature has imported the judicial authority of the magistrate subject to an express jurisdictional qualifier: “empowered under Section 190.” Consequently, the investigative oversight conferred by Section 156(3) is governed by a dual matrix:

1. The general judicial authority inherent to a magistrate empowered under Section 190 as a whole.
2. The specific operational limitations and conditions embedded within Section 190 itself.

Where the statute remains silent on the exact boundaries between these two elements, it must be inferred that the exercise of power under Section 156(3) is co-extensive with, and governed by, both frameworks.

Instances Where Power Is Governed by Qualified Empowerment

1. v) The legislature deployed the term “empowered” to structure a two-phased interpretative framework. The first phase encompasses the broad, generic status and statutory standing of a magistrate operating under the primary mandate of Section 190. Section 190 CrPC outlines three distinct procedural pathways through which this foundational authority is recognized:

“(a) upon receiving a complaint of facts that constitute such offense;

(b) upon a police report of such facts;

(c) upon information received from any person other than a police officer, or upon his own knowledge, that such offense has been committed.”

The second phase delineates the specific instances where a magistrate draws upon that foundational status to issue investigative directives under Section 156(3). Through the rule of harmonious construction, the investigative power under Section 156(3) cannot be interpreted in isolation; its scope is structurally tethered to these three underlying pathways of Section 190. This latter application is residual in nature, and its interpretive boundaries have been extensively developed through judicial precedents.

6.3. “May”

The word “may” in Section 156(3) does not grant absolute or arbitrary freedom to a magistrate. Instead, it represents a discretionary power coupled with a duty to apply a judicial mind to the facts presented. This power is enabling rather than discretionary in the colloquial sense. Upon applying a judicial mind, the magistrate must determine whether the circumstances warrant an order; if they do, the resulting investigation is coextensive with the powers under Section 156(1).

6.4. “…order such an investigation as above-mentioned.”

1. i) Section 156(3) does not create a new or independent source of investigative power. The phrase “order such an investigation as above-mentioned” operates as a direct statutory reference to the investigation that an officer-in-charge of a police station is competent to conduct under Section 156(1) CrPC. Consequently, a directive issued by the magistrate under Section 156(3) merely activates and authorizes the police to exercise the identical plenary power already vested in them under Section 156(1).

2. ii) In summary, the phrasing used in subsection (1) indicates that absolute, unfettered powers of investigation are conferred upon police officers as a general rule. Conversely, the phrasing in subsection (3) demonstrates that magisterial powers serve as residuary powers. When a police officer exercises power under Section 156(1) in a particular case, there is no occasion for the empowered magistrate to exercise power under Section 156(3) for that same case. Furthermore, the source of information required to trigger these powers is entirely distinct for each authority. Ultimately, the power under Section 156(1) is the power to investigate, whereas the power under Section 156(3) is the power to order such an investigation; the former represents an executive duty, while the latter signifies a judicial function.

Scope of Section 175 of the BNSS

Before evaluating the legislative implications and operational dynamics of Section 175 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), it is necessary to outline the relevant statutory text. The provision reads as follows:

Section 175. Police officer’s power to investigate cognizable case.

(1) Any officer in charge of a police station may, without the order of a magistrate, investigate any cognizable case that a court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIV:

Provided that, considering the nature and gravity of the offense, the Superintendent of Police may require the Deputy Superintendent of Police to investigate the case.

(2) No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one for which such officer was not empowered under this section to investigate.

(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) Any magistrate empowered under section 210 may, upon receiving a complaint against a public servant arising in the course of the discharge of his official duties, order an investigation, subject to—

(a) receiving a report containing facts and circumstances of the incident from the officer superior to him; and

(b) after consideration of the assertions made by the public servant as to the situation that led to the incident so alleged.

Section 175 BNSS and Section 156 CrPC

Section 175 of the BNSS adapts and reconstructs Section 156 of the Code of Criminal Procedure, 1973 (CrPC). Sub-sections (1) to (3) of Section 175 sequentially mirror their original sources in Sections 156(1) to 156(3). While the scope of the original provisions has been detailed in the foregoing paragraphs, the BNSS introduces critical modifications. Specifically, a proviso has been appended to sub-section (1), new procedural qualifiers have been inserted into sub-section (3), and an entirely new sub-section (4) has been introduced, while sub-section (2) remains unaltered.

BNSS Provision	Corresponding CrPC Provision	Key Feature
Section 175(1)	Section 156(1)	Police officers’ power to investigate cognizable cases, with a new proviso concerning investigation by a deputy superintendent of police.
Section 175(2)	Section 156(2)	Protection against challenges based on lack of investigative competence.
Section 175(3)	Section 156(3)	Introduces additional procedural requirements concerning applications, affidavits, inquiries, and police submissions.
Section 175(4)	New provision	Introduces procedural protections concerning complaints against public servants arising from official duties.

Legislative Modifications Under Section 175

The proviso added to subsection (1) confers discretionary administrative authority upon the Superintendent of Police to assign investigations to a Deputy Superintendent of Police based on the gravity of the offense. In subsection (3), the legislative additions introduce a specific statutory remedy to address defaults under Section 173(1). Furthermore, by enacting subsection (4), the legislature sought to extend procedural protections to public servants. Under this new provision, when a complaint is filed against a public servant for actions arising during the discharge of official duties, the magistrate’s power to order an investigation is strictly contingent upon fulfilling the conditions in clauses (a) and (b).

Much like an order passed under Section 175(3), a directive issued under Section 175(4) operates at the pre-cognizance stage. However, a vital distinction arises in their application: while Section 175(3) acts as a default statutory remedy following a failure of the Section 173(1) machinery, Section 175(4) serves as a specialized mechanism derived directly from the magistrate’s powers under Section 210.

A Critical Analysis of Section 175(1)

Adaptation From Section 156(1) CrPC

The legislature adapted Section 175(1) of the BNSS from Section 156(1) of the Code of Criminal Procedure, 1973 (CrPC). In doing so, the legislature adopted the substantive contents of the erstwhile section verbatim, thereby keeping the scope and ambit of the powers of an officer-in-charge of a police station unaltered while introducing a new proviso. This newly added proviso confers a directory power upon the Superintendent of Police (SP), enabling them to mandate a Deputy Superintendent of Police (DySP) to investigate a case.

Superintendent of Police Supervisory Power

By employing the expression “the case,” the legislature intends to encompass all investigation contingencies that an officer-in-charge is empowered to undertake under subsection (1). However, a critical analysis reveals that the legislature has not conferred any novel authority upon the Superintendent of Police (SP). Even prior to the insertion of this explicit proviso, the SP impliedly possessed such supervisory power in their capacity as the administrative head of the district.

Section 30 BNSS and Superior Police Powers

Apart from this, Section 30 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), which mirrors Section 36 of the Code of Criminal Procedure (CrPC), explicitly mandates that superior police officers may exercise the same powers throughout their local jurisdiction as an officer-in-charge of a police station. Because the Superintendent of Police (SP) already possesses co-extensive investigative powers over the entire district by virtue of Section 30, the authority to intervene and direct a Deputy Superintendent of Police (DySP) to investigate a grave offense was already fully operational within the statutory scheme. Therefore, rather than introducing a substantive shift in police powers, the new proviso to Section 175(1) merely acts as an explicit, localized codification of a hierarchical authority that the SP has always legally commanded.

An Analysis of Section 175(2)

Section 175(2) of the BNSS incorporates Section 156(2) of the CrPC verbatim, ensuring that no police investigation can be challenged on the ground that the officer lacked territorial or statutory competence. By preserving this protective umbrella, the legislature maintains the historical judicial policy of preventing technical procedural errors from vitiating an entire investigation. Consequently, the extensive jurisprudence established under the old Code remains fully applicable to the interpretation of this provision.

A Critical Analysis of Section 175(3)

10.1. “Any magistrate empowered under section 210 may,”

Even though the legislature retained the phrase ‘Any magistrate empowered under section 210 may,’ merely updating the numerical cross-reference from the erstwhile Section 190 of the CrPC when drafting Section 175(3) of the BNSS, the statutory duty imposed under this reconstructed provision remains conceptually independent of Section 210 empowerment. The text creates a distinct administrative and executive obligation by mandating that the magistrate verify procedural compliance under Section 173(4). By way of this provision, the legislature compels the magistrate to evaluate an application supported by an affidavit purportedly ‘made under’ subsection (4) of Section 173, conduct an inquiry, and evaluate formal police submissions. Because this designated exercise consists of executing a rigid, mechanical checklist rather than exercising substantive judicial mind application, it requires no specialized statutory qualification. Any judicial magistrate can execute this procedural audit without specialized competence. Consequently, the retention of the jurisdictional qualifier under Section 210 remains textually and contextually illusory in reference to its actual contents.

10.2. “After considering the application supported by an affidavit made under subsection (4) of section 173,”

The legislature, while reconstructing Section 175(3) of the BNSS, introduced the phrase ‘after considering the application supported by an affidavit made under subsection (4) of section 173.’ The explicit placement of the modifier ‘made’ functions as a strict textual anchor. By declaring that the affidavit is ‘made under’ Section 173(4), the statutory syntax creates a direct legislative presumption that the source provision contains the enabling mechanism, form, or mandate for such an instrument. However, an analysis of Section 173(4) reveals an absolute silence regarding any affidavit requirement, procedural format, or formal structure. This striking omission generates a profound logical contradiction and a glaring legislative drafting anomaly. Because the parent provision entirely lacks the procedural mechanism that the subsequent section asserts is derived from it, the text becomes structurally detached and conceptually incoherent. Consequently, the statutory text remains ex-facie ambiguous, saddling the provision with a critical procedural deficit that leaves an aggrieved person entirely unguided when seeking to invoke the remedy under Section 175(3).

10.3. “And after making such inquiry as he thinks necessary and submission made in this regard by the police officer,”

1. While the text introduces the phrase ‘after making such inquiry as he thinks necessary,’ it leaves the scope and nature of this statutory mechanism unguided. By qualifying “such inquiry” with the words “as he thinks necessary,” the legislature vests the magistrate with subjective choice over the subject matter of the probe. It is a foundational tenet of administrative law that when the legislature confers statutory discretion, it must provide clear guardrails to align that power with its intended objective. Here, the text lacks clear criteria for the evaluation of information concerning the commission of a cognizable offense. This statutory silence risks fostering disparate, subjective applications by individual magistrates. Such unbounded discretion introduces procedural instability that severely jeopardizes a victim’s fundamental right to swift FIR registration.
2. Moreover, the phrase “submission made in this regard” engenders a profound semantic paradox. If the initial stage of the inquiry remains textually ambiguous, the expected content of the police officer’s submission becomes entirely speculative. An officer cannot realistically anticipate or address the unformulated parameters of an inquiry held at the magistrate’s absolute whim. Compounding this ambiguity, the statute suffers from deep textual vagueness by leaving “the police officer” completely undefined. It remains entirely unclear whether this refers to the defaulting Officer-in-Charge under Section 173(1), the passive Superintendent of Police under Section 173(4), or both. By leaving both the procedural scope and the identity of the executive actor unmapped, the statutory framework stands inconsistent with the principles of due process under Article 21 of the Constitution.

10.4. “Order such an investigation as above-mentioned.”

In drafting Section 175(3) of the BNSS, the legislature anchored the provision to its historical predecessor by retaining the phrase “order such an investigation as above-mentioned.” Under the legacy framework of the CrPC, this power operated independently as an absolute, unconditional judicial prerogative rather than a conditional remedy for a specific statutory default. Conversely, the reconstructed BNSS provision explicitly tethers this mechanism to the default remedies under Section 173, rewriting the preceding text to address police inaction or an adverse preliminary inquiry under Section 173(3). Because the ultimate objective of this process is to compel the registration of a cognizable offense originally refused under Section 173(1), the survival of the legacy phrase creates a severe statutory mismatch. Instead of reproducing this historical text, the legislature should have deployed purposive language directly targeted at curing the default. By failing to do so, Section 175(3) stops short of equipping the magistrate with direct legal leverage to command the immediate registration of the offense, offering instead the roundabout power to order an investigation. It is a foundational rule of legislative drafting that a provision enacted to remedy a specific institutional failure must directly resolve the point of default rather than bypassing it.

11. Statutory Impact on the Legacy Legal Framework

A critical evaluation of this section reveals that the ramifications of this reconstruction extend far beyond a mere narrowing of judicial power. Instead, they deeply fracture the systemic cohesion of this provision within the broader statutory scheme of the Act. The specific consequences of this newly restricted framework are detailed below.

11.1. The Dilution of Substantive Rights Through Procedural Remedies Under Section 175(3)

1. 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.
2. 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.

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.

11.2. The BNSS Repositions the Judiciary as an Enforcement Mechanism for Executive Performance

Registering an FIR under Section 173(1) and investigating an offense under Section 175(1) of the BNSS are fundamental executive functions of the police. The legislature outlines this authority systematically from Sections 173(1) to 173(4). If the police refuse to register an FIR, the aggrieved person must first approach the Superintendent of Police under Section 173(4) before applying to the Magistrate. This architecture embeds judicial authority directly into the execution of police duties. Although Section 173(4) does not explicitly name the court application process, Section 175(3) clarifies that the magistrate’s power is structurally contingent upon exhausting the remedies under Section 173(4). Under Section 156(3) of the old CrPC, ordering an investigation is viewed as an independent exercise of judicial discretion; however, by reshaping it under the BNSS, the legislature effectively repositions the judiciary as an enforcement mechanism for executive performance.

11.3. The Reconstruction of Section 175(3) BNSS Reduces an Expansive Judicial Power to a Restrictive Conditional Protocol

1. i) The legislative reconstruction of Section 175(3) of the BNSS severely narrows its operational scope, rendering its retained legacy expressions entirely illusory. Historically, Section 156(3) of the Code of Criminal Procedure (CrPC) comprised only two distinct elements: an authority clause (“Any Magistrate empowered under section 190 may”) and a power clause (“order such an investigation as above-mentioned”), with the latter conferring the same wide, unfettered powers detailed under Section 156(1). In stark contrast, the reconstructed Section 175(3) of the BNSS updates the jurisdictional reference to Section 210 and inserts a wall of restrictive contingencies directly between these two original components. Specifically, the legislature textually wedges in the requirement: “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 submissions made in this regard by the police officer…”
2. ii) This structural insertion fundamentally alters the character of the judicial directive. This newly introduced conditional clause applies strictly to investigations ordered where an aggrieved person exhausts the remedy provided under Section 173(4), which serves specifically as a gatekeeper for the default mechanism of Section 173(1) BNSS. Consequently, the magistrate no longer triggers an independent, unrestricted power over the jurisdictional domain of Section 156(1) CrPC. Instead, the court is forced to execute a highly conditional, restricted statutory protocol. By retaining the historical phrase “as above-mentioned” while simultaneously building a labyrinth of statutory hurdles around it, the legislature creates a profound textual contradiction. The expansive operational scope originally conveyed by the legacy phrase is completely neutralized by the new criteria, rendering its inclusion in the new code deceptive and functionally illusory.

11.4. Section 175(3) Creates an Aimless Inquiry Instead of Directly Enforcing Section 173(1)

A comparative analysis of the old and new codes reveals that the inquiry mandated by Section 175(3) of the BNSS lacks a clear statutory objective. Under the foundational rule preserved in Section 173(1) of the BNSS, the registration of an FIR requires nothing more than information disclosing the commission of a cognizable offense. Consequently, when a police officer refuses to act, the substantive right under Section 173(1) is instantly infringed, demanding an immediate and direct judicial remedy. However, instead of providing a direct enforcement mechanism to cure this specific default, Section 175(3) forces the magistrate to conduct a separate inquiry and consider police submissions. Even if the court utilizes this inquiry to look for a prima facie case, evaluate the reliability of the information, or act as a formal review authority over the initial refusal, these factors remain entirely irrelevant in view of the basic statutory requirement for registering an offense under Section 173(1). By injecting these irrelevant metrics into a judicial proceeding, the statute creates an artificial barrier to justice. The legislature effectively compels the magistrate to entertain extraneous considerations, thereby delaying the immediate relief guaranteed under Section 173(1) and transforming a straightforward enforcement power into a redundant, aimless exercise.

11.5. Section 175(3) Lacks Punitive Powers Against Errant Police

The provisions of Section 175(3) of the BNSS serve as the default judicial remedy for failures arising under Section 173(1). Under Section 173, the statutory duty to register a cognizable offense is strictly imposed on the police officer or executive. In structuring the final default recourse under Section 173(4), which directs an informant to make an application to the magistrate, the legislature reframes Section 175(3) to anchor it directly to the remedy under Section 173(4).

However, by shifting this executive recourse to the judiciary, the legislature does not position the judiciary as a supervisory body over executive duties. Instead, it subjects the victim’s or informant’s rights to an extra layer of judicial review, rather than directly addressing the executive’s failure to perform its statutory obligations. Surprisingly, the BNSS fails to confer explicit powers upon the magistrate to penalize or take action against an authorized police officer if an inquiry reveals an intentional dereliction of duty, misconduct, or illegal refusal to register information under Section 173(1). Absent such express punitive powers, the legislature merely superimposes an administrative exercise without teeth.

11.6. The BNSS Subjects the Substantive Right of FIR Registration to Strict Judicial Scrutiny

Under the criminal justice framework, the right to register a First Information Report (FIR) remains a substantive right of a citizen, placing a corresponding statutory duty on the executive to enforce it. However, the legislative restructuring under Section 173 of the BNSS exposes this right to direct refusal under Section 173(1). This framework impliedly includes a refusal via the preliminary enquiry process under Section 173(3), while subsequently providing a statutory remedy under Section 173(4). Crucially, this default remedy is no longer confined to executive channels. Instead, it transitions into a judicial function under Section 175(3), thereby bringing the enforcement of this substantive right directly under judicial scrutiny and supervision.

11.7. Section 175(3) Omits Explicit References to Both the Victim and the Relief of FIR Registration

Under Section 173(4) of the BNSS, the legislature explicitly uses the terms “aggrieved person” and “victim” to provide a remedy when the police refuse to register an FIR under Section 173(1). Oddly, this explicit link is entirely absent from the text of Section 175(3). Furthermore, the remedy under Section 175(3) does not explicitly include the actual relief of FIR registration. While Section 156(3) of the erstwhile CrPC inherently included the power to direct registration through judicial precedents, the BNSS fails to codify this vital interpretation. By utilizing deficient terminology and omitting clear cross-references, the legislature leaves the primary remedy disconnected and structurally vague. Consequently, when a specific statutory provision is enacted to remedy a particular default, that remedy must effectively restore the infringed right rather than leave it to implication.

11.8. Executive Default Burdens the Victim’s Right to Remedy

1. i) Rather than establishing a mechanism of strict executive accountability, Section 175(3) of the BNSS constructs a procedural hurdle that effectively insulates police defaults from immediate judicial consequences. Most problematically, this framework leaves the police largely 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 compliance with statutory prerequisites, navigate the subjective inquiry directed by the magistrate, and 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, effectively penalizing the victim for the state’s institutional default.
2. ii) While the legislature mandates that a victim must first exhaust the remedies under Section 173 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.

12. A Critical Analysis of the Newly Added Sub-section (4) of Section 175 of the BNSS

1. i) This provision implies that the contingencies required for taking cognizance under Section 210 are now intertwined with the prerequisites of Section 175(4). The procedural framework suggests that upon receiving a complaint, the Magistrate may opt for this conditional investigative route instead of immediately invoking the standard procedure under Chapter XVI (Complaints to Magistrates).
2. ii) Crucially, the broader scheme of the BNSS prohibits taking cognizance against a public servant without proper sanction, rather than barring the initial investigation itself. Consequently, there is no inherent statutory bar to registering a First Information Report (FIR) against a public servant for acts committed in the discharge of official duties. This creates a legal paradox: while Section 175(4) prohibits the unconditional exercise of judicial power when ordering an investigation, Section 173(1) imposes no such conditional fetters on the registration of an FIR by the police. Furthermore, ambiguity persists within Section 175(4) regarding whether it operates as an independent provision or acts as an accessory to Section 173 or Section 210.
3. iii) Under the Code of Criminal Procedure, 1973 (CrPC), judicial pronouncements established that upon receiving a complaint, the magistrate retained sole discretion to either order an investigation under Section 156(3) or proceed with the examination under Section 200. While such discretion remains implicit under the BNSS, the precise parameters governing its exercise—and how it harmonizes with the unconditional nature of Section 173(1)—remain uncodified.
4. iv) Given these overlapping pathways and the complex statutory architecture governing public versus private individuals, several critical questions emerge:
   1. If information disclosing a cognizable offense against a public servant is provided under Section 173(1), can the police directly register the FIR, or must the informant adopt the procedure laid down under Section 210?
   2. When the police refuse to record a cognizable offense alleged against a public servant under Section 173(1), and the magistrate subsequently exercises jurisdiction under Section 175, which criteria should apply—the general procedural parameters laid down under Section 175(3) or the restrictive, protective thresholds mandated under Section 175(4)?
   3. If a complaint is filed against a private party under Section 210, can the magistrate judicially import and impliedly exercise the restrictive screening powers analogous to Section 175(4)—thereby bypassing the standard, unconditional investigative mandate of Section 173(1) and Section 175(3)?
   4. Can a complaint filed under Section 210 include specific prayers invoking powers under Section 210 read with Section 175(4), or must it specifically invoke Section 223?
   5. Following a refusal by the police under Section 173(1) and the exhaustion of remedies under Section 175(3), does the remedy of filing a complaint under Section 210 to invoke judicial relief still remain available to the informant?

13. Conclusion

In conclusion, while the legislature has retained the basic architecture of the erstwhile Section 156 of the CrPC, the modifications to sub-section (3) alongside the insertion of sub-section (4) in Section 175 of the BNSS have fundamentally disrupted the historical framework governing the registration of cognizable offenses and their corresponding remedial measures. The reconstruction of Section 175(3) of the BNSS—achieved by inserting restrictive new clauses—drastically alters the operational scope and systemic utility previously enjoyed under Section 156(3) of the CrPC. Where the former provision operated within a broader sphere and played a vital role in the old Code’s investigative architecture, the new amendments render it largely inoperative in its original domain, tethering judicial oversight to executive functions that run contrary to the section’s true objective.

By weaving the right to an FIR into a rigid procedural straightjacket, the BNSS transforms what the judiciary has long recognized as a core component of Article 21 of the Constitution into a subordinate administrative and judicial remedy. This statutory restructuring creates exactly the type of systemic friction anticipated when textual amendments ignore the broader legislative framework meant to protect citizens’ rights—the primary duty of the State. Consequently, Section 175(3) dilutes the immediacy of justice and restricts practical access to constitutional protections, leaving the Article 21 guarantees of fair disclosure and speedy investigation in peril. Furthermore, the restrictive conditions imposed by Section 175(4) regarding public servants introduce severe administrative roadblocks for aggrieved persons, compromising the core mandate of the law. Ultimately, this transition fails to preserve the foundational purpose of the provision, shifting the balance of power toward executive concession at the absolute cost of the Rule of Law.

Written By: Shri. Kiran S. Pawar, Advocate, Islampur Bar Association, Tal. – Walwa, Dist.- Sangli, (Maharashtra) 415409.

[Disclaimer: This article is a scholarly exercise in statutory critique and policy analysis intended to explore evolving legal dimensions and prospective jurisprudence. The arguments presented herein represent the academic views of the author and do not constitute formal legal counsel or advice.

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