Law and You >Procedural Laws > BNSS > Police Officer’s Power to Investigate Cognizable Case (S. 175 BNSS)
The procedure of administration of criminal justice is divided into three stages namely investigation, inquiry and trial. The Bharatiya Nagarik Suraksha sanhita, 2023 (hereinafter referred as BNSS) provides for the procedure to be followed in investigation, inquiry and trial, for every offence under the Bharatiya Nyaya Sanhita, 2023 or under any other law. Investigation being the preliminary stage is conducted by Police and usually starts after registration of First Information Report. Though, term ‘First Information Report’ is not used inBNSS, it is popularly known so. On receipt of any such information, police is duty bound to register a case and investigate as per statute. In this article, let us discuss police officer’s power to investigate cognizable case.
Police investigation is the process by which the police collect evidence, question witnesses, and analyze facts to detect crime, identify the offender, and bring them to justice. It is one of the most crucial functions of the police under the BNSS. Investigation refers to all proceedings conducted by a police officer or any person authorized by a magistrate to collect evidence of an offence.
In cases where attempt of aggrieved informant/victim in getting FIR registered under Section 173(4) BNSS, also fails, the informant/victim may approach concerned Judicial Magistrate under Section 175(3) BNSS. A Magistrate who is empowered under Section 210 BNSS, may, under Section 175(3) BNSS, direct investigation in any cognizable case relating to offence committed with the area of his territorial jurisdiction. Section 175(3) BNSS, is very brief and fails to express the powers of Magistrate precisely but its scope, ambit and limitations have been interpreted, discussed and explained in various Judicial Pronouncements by the Supreme Court as well as High Courts across the Country.
Objectives of Police Investigation:
- To ascertain whether a crime has been committed.
- To identify the offender(s).
- To collect and preserve evidence—oral, documentary, or material.
- To build a case that can stand the scrutiny of courts.
- To prevent tampering of evidence and repetition of the crime.
S. 175 BNSS:
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 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 XIV:
Provided that considering the nature and gravity of the offence, 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 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 sub-section (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 course of the discharge of his official duties, order 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.
Power of Police under S. 175 BNSS:
Section 175 BNSS gives wide investigative powers to the police in relation to cognizable offences. Under Section 156(1) BNSS, the police officer in charge of a police station can investigate any cognizable offence without prior approval of the Magistrate. This ensures quick action in serious matters like murder, rape, robbery, kidnapping, etc.
As per the judgment in Lalita Kumari v. Govt. of U.P. (2014), registration of FIR is mandatory when information discloses a cognizable offence. Police cannot refuse to register FIR and must start investigation.
Considering the nature and gravity of the offence, the Superintendent of Police may require the Deputy Superintendent of Police to investigate the case.
Under Section 175(2) BNSS, 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 which such officer was not empowered under this section to investigate.
Magistrate Power during Investigation in Certain Cases:
Combined reading of sub-section (1) & (3) of Section175 BNSS, makes it clear that any Magistrate empowered under Section 210 BNSS may order police to investigate any cognizable offence reported to have been committed with local area falling under territorial jurisdiction of such Magistrate.
Meaning of the term “Any Magistrate”:
According to Section 210(1) BNSS, subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under sub-section (2), may take cognizance of any offence ….. Thus, Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf by Chief Judicial Magistrate, may take Cognizance of any offence. Under Section 210(1) BNSS, they can take cognizance of any offence in following circumstances:
- upon receiving a complaint of facts, including any complaint filed by a person authorised under any special law, which constitutes such offence;
- upon a police report (submitted in any mode including electronic mode) of such facts;
- upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.
To Whom Directions under Section 175(3) BNSS Can be Issued by Magistrate:
Under Section 175(3) BNSS, Magistrate is empowered to direct only officer in charge of a police station within his local jurisdiction to conduct investigation. The power under Section 175(3) BNSS, does not authorize Magistrate to issue directions for conducting investigation to superior police officer, any other investigating agency (CBI/CID etc.,) or to officer-in-charge of police station outside his territorial jurisdiction. This also implies that if offence is alleged to have been committed outside territorial jurisdiction of Magistrate, directions cannot be passed by Magistrate under Section 175(3) BNSS.
Similar view was expressed by the Division Bench of the Bombay High Court in the decision reported as
In the State of Maharashtra vs. Ibrahim A. Patel, 2008 CriLJ 1496 case the Bombay High Court held that a plain reading of Sub-section (3) of Section 156 CrPC (S. 175(3) BNSS) would, therefore disclose that the Magistrate who is empowered to take cognizance of an offence in terms Section 190 of CrPC (S. 210 BNSS) can direct the investigation thereof by any police officer in charge of the police station, who is empowered to perform his duties within the local area demarcated for such police station and that such local area lies within the jurisdiction of the Court of the Magistrate.
In CBI vs. State of Rajasthan (supra) case, where the question before the Apex court was whether Magistrate under Section 156(3) (S. 175(3) BNSS) can direct CBI to investigate an offence. It was held that the magisterial power cannot be stretched under the said sub-section beyond directing the officer in charge of a police station to conduct the investigation.
When and What Power under Section 175(3) BNSS, can be Exercised:
A Magistrate can exercise power under Section 175(3) BNSS, at pre cognizance stage as well as during post cognizance stage. The power may include issuing directions to officer-in-charge of police station to register a case and investigate, where FIR has already been registered Magistrate may direct the officer in charge of the concerned police station to hold a proper investigation and take all such necessary steps that may be necessary for ensuring a proper investigation including monitoring the same.
To enable the police to start an investigation in a matter Magistrate can direct the police under Section 175(3) BNSS to register an FIR in that case. Even where a Magistrate do so in explicit words but directs for investigation under Section 175(3) BNSS, the police should register an FIR. See:
- Hemant Yashwant Dhage Vs. State of Maharashtra, (2016) 6 SCC 273
- Mohd. Yousuf Vs. Afaq Jahan, (2006) 1 SCC 627.
In Mohd. Yousuf vs. Smt. Afaq Jahan and Anr., (2006) 1 SCC 627 case, the Court observed that the clear position is that any Judicial Magistrate, before taking cognizance of the offence, can order investigation under Section 156(3) of the Code (S. 175(3) BNSS). If he does so, he is not to examine the complainant on oath because he was not taking cognizance of any offence therein. For the purpose of enabling the police to start investigation it is open to the Magistrate to direct the police to register an FIR. There is nothing illegal in doing so. After all registration of an FIR involves only the process of entering the substance of the information relating to the commission of the cognizable offence in a book kept by the officer in charge of the police station as indicated in Section 154 of the Code (S. 173 BNSS). Even if a Magistrate does not say in so many words while directing investigation under Section 156(3) of the Code (S. 175(3) BNSS) that an FIR should be registered, it is the duty of the officer in charge of the police station to register the FIR regarding the cognizable offence disclosed by the complaint because that police officer could take further steps contemplated in Chapter XII (Chapter XIII BNSS) of the Code only thereafter.
In Vinubhai Haribhai Malaviya and ors., vs. State of Gujarat and another (2019) 17 SCC 43 case, where the question was whether, after a charge-sheet is filed by the police, the Magistrate has the power to order further investigation, and if so, up to what stage of a criminal proceeding. After referring to various precedents and relevant statutory provisions, it was held – It is thus clear that the Magistrate’s power under Section 156(3) of the CrPC (S. 175(3) BNSS) is very wide, for it is this judicial authority that must be satisfied that a proper investigation by the police takes place. To ensure that a “proper investigation” takes place in the sense of a fair and just investigation by the police – which such Magistrate is to supervise – Article 21 of the Constitution of India mandates that all powers necessary, which may also be incidental or implied, are available to the Magistrate to ensure a proper investigation which, without doubt, would include the ordering of further investigation after a report is received by him under Section 173(2) CrPC (S. 193 BNSS); and which power would continue to enure in such Magistrate at all stages of the criminal proceedings until the trial itself commences. Indeed, even textually, the “investigation” referred to in Section 156(1) of the CrPC (S. 173(1) BNSS) would, as per the definition of “investigation” under Section 2(h) CrPC (Section 2((l) BNSS), include all proceedings for collection of evidence conducted by a police officer; which would undoubtedly include proceedings by way of further investigation under Section 173(8) of the CrPC (S. 193 BNSS).
When an application under Section 175(3) BNSS is moved before the Magistrate, the Magistrate need not at once proceed to take cognizance and before sending the same to the police for registration of FIR and investigation thereof, the Magistrate has to apply his mind to the allegations contained in the application. See:
- Ram Babu Gupta vs. State of U.P., 2001 (43) ACC 50 (All—F.B.)
- Yogendra Singh vs. State of U.P., 2003 (46) ACC 1008 (All)
- Paul George vs. State, 2002 SCC (Criminal) 340
- Smt. Pushpa Devi vs. State of U.P., 2009 (6) ALJ 373 (All)
Pre-Condition for Exercising Power under Section 175(3) BNSS:
Whenever a victim/informant approaches Magistrate with prayer to issue directions for registration of FIR under Section 156(3) CrPC (S. 175(3) BNSS), it is required that said informant/victim has exhausted procedure as laid under Sections 154(1) & (3) (Ss. 173(1) and S. 173(4) BNSS). As a matter of abundant precaution, an application moved under Section 175(3) BNSS should be required to be accompanied by an affidavit of the applicant.
In Priyanka Srivastava and Ors. vs. State of U.P. and Ors. (19.03.2015 – SC) : 2015 (3) PLJR 78 case the Supreme Court observed that ”In our considered opinion, a stage has come in this country where Section 156(3) Code of Criminal Procedure (S. 175(3) BNSS) applications are to be supported by an affidavit duly sworn by the applicant who seeks the invocation of the jurisdiction of the Magistrate. That apart, in an appropriate case, the learned Magistrate would be well advised to verify the truth and also can verify the veracity of the allegations. This affidavit can make the applicant more responsible. We are compelled to say so as such kind of applications are being filed in a routine manner without taking any responsibility whatsoever only to harass certain persons. That apart, it becomes more disturbing and alarming when one tries to pick up people who are passing orders under a statutory provision which can be challenged under the framework of said Act or Under Article 226 of the Constitution of India. But it cannot be done to take undue advantage in a criminal court as if somebody is determined to settle the scores. We have already indicated that there has to be prior applications Under Section 154(1) and 154(3) CrPC (Ss. 173(1) and S. 173(4) BNSS) while filing a petition Under Section 156(3) CrPC (S. 175(3) BNSS). Both the aspects should be clearly spelt out in the application and necessary documents to that effect shall be filed. The warrant for giving a direction that the application Under Section 156(3) CrPC (S. 175(3) BNSS) be supported by an affidavit so that the person making the application should be conscious and also endeavour to see that no false affidavit is made. It is because once an affidavit is found to be false, he will be liable for prosecution in accordance with law. This will deter him to casually invoke the authority of the Magistrate under Section 156(3) CrPC (S. 175(3) BNSS). ….”
A Magistrate under Section 175(3) BNSS is not required to go into the factum of genuineness of allegations contained in the application. If the contents of the application disclose a cognizable offence, Magistrate has to pass order for registration of FIR and investigation thereof. Assessment of evidence and drawing of inferences not required to be done under Section 175(3) BNSS. See:
- Ram Pal Singh vs. State of U.P., 2007 (1) J.Cr.C. 257 (All)
- Dr. Rajendra Prasad vs. ACJM, Lucknow, 1996 JIC 5 (All—L.B.)
- Roop Ram vs. State of U.P., 2009 (66) ACC 870 (All)
No Order under Section 156(3) where Sanction Is Required:
According to Section 175(4) BNSS, the Magistrate cannot order investigation against a public servant while invoking powers. Under Section 175(3) BNSS.
In Alka Jha Vs. State of Bihar, 2016 (4) PLJR 207case, the Court held that in absence of previous sanction, power under section 156(3) CrPC (S. 175(3) BNSS), cannot be invoked by Magistrate.
Disobeying Order under S. 175(3) BNSS:
If an order passed by Magistrate under Section 175(3) BNSS for registration of FIR is not complied with by the SHO, the Magistrate should ensure that the order is complied with and the case is registered and investigated. In case of noncompliance, the Magistrate can take action against the station officer. See:
- Ram Saroj Tiwari vs. State of U.P., 2000 (41) ALR 91 (All)
- Bhagwati Prasad vs. State of U.P., 1996 (33) ACC 639 (All)
According to Section 199 of the Bharatiya Nyaya Sanhita, 2023, if a public servant knowingly disobeys any direction of the law which prohibits him from requiring the attendance at any place of any person for the purpose of investigation into an offence or any other matter; or knowingly disobeys, to the prejudice of any person, any other direction of the law regulating the manner in which he shall conduct such investigation; or fails to record any information given to him under sub-section (1) of section 174 of the Bhartiya Nagarik Suraksha Sanhita, 2023 in relation to cognizable offence punishable under section 64, section 65 section 66, section 67, section 68, section 71, section 73, section 76, section 122 or section 141 or section 142, shall be punished with rigorous imprisonment for a term which shall not be less than six months but which may extend to two years, and shall also be liable to fine.
According to S. 255 the Bharatiya Nyaya Sanhita, 2023, whoever, being a public servant, knowingly disobeys any direction of the law as to the way in which he is to conduct himself as such public servant, intending thereby to save, or knowing it to be likely that he will thereby save, any person from legal punishment, or subject him to a less punishment than that to which he is liable, or with intent to save, or knowing that he is likely thereby to save, any property from forfeiture or any charge to which it is liable by law, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
Conclusion:
Section 175 of the Bharatiya Nagarik Suraksha Sanhita, 2023 plays a pivotal role in the criminal justice system by empowering the police to investigate cognizable offences swiftly and effectively. It ensures that serious crimes are dealt with promptly, without unnecessary delays caused by judicial intervention at the initial stage. At the same time, the supervisory power of the Magistrate under Section 175(3) BNSS provides a crucial check on arbitrary or negligent action by the police, thereby safeguarding the rights of individuals. Judicial interpretations have reinforced the balance between police autonomy in investigation and the need for accountability. Thus, Section 175 BNSS embodies the dual objective of efficient law enforcement and protection of individual liberties, making it a cornerstone of criminal procedure in India.