Calcutta High Court (Appellete Side)
Kaushik Panja & Ors vs The State Of West Bengal & Anr on 17 March, 2026
IN THE HIGH COURT AT CALCUTTA
CRIMINAL REVISIONAL JURISDICTION
APPELLATE SIDE
PRESENT:
THE HON'BLE DR. JUSTICE AJOY KUMAR MUKHERJEE
CRR 467 of 2026
Kaushik Panja & Ors.
Vs.
The State of West Bengal & Anr.
with
CRR 363 of 2026
Manoj Kumar Sharma
Vs.
The State of West Bengal & Anr.
With
CRR 4982 of 2025
Sri Nabakumar Das
Vs.
The State of West Bengal & Anr.
For the Petitioners : Mr. Soumyajit Das Mahapatra
(in item no. 10) Mr. Subrata Ghosh
Ms. Madhuri Sinha
Ms. Upasana Banerjee
For the Opposite party no.2 : Mr. Soumik Ganguly
(in item no.10)
For the State : Mr. Debasish Roy
(in item no. 10) Mr. Suman De
For the Petitioner : Mr. Dipanjan Dutt
(in item no. 11) Mr. Soumodip Ghosh
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For the Opposite party no.2 : Mr. Sandipan Ganguly
(in item no. 11) Mr. Rohit Das
Mr. Indradip Das
Ms. Priyanka Sarkar
Ms. Anugraha Sundas
For the State : Mr. Debasish Roy
(in item no. 11) Mr. Suman De
Ms. Trisha Rakshit
For the Petitioner : Mr. Krishnendu Bhattacharya
(in item no.12) Mr. Amit Amit Gupta
Mr. Amaan Deep Gupta
Ms. Sneha Ghosh
For the Opposite party no.2 : Mr. Md. Amin
(in item no. 12) Mr. Gulalm Muztaba
Mr. Mahsabeen
Mr. Md. Iqbal
For the State : Mr. Debasish Roy
(in item no. 12) Mr. Suman De
Ms. Mousumi Sarkar
Heard On : 10.02.2026
Judgment on : 17.03.2026
Dr. Ajoy Kumar Mukherjee, J.
1. A common question raised in all the three Applications is whether the
concerned magistrate was justified in directing officer-in-charge of the
concerned Police station to make an ‘inquiry’ and submit a report in
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response to complainant’s prayer made under section 175 (3) Cr.P.C,
seeking direction upon police to start investigation.
2. The scope of inquiry under section 175(3) of the Bharatiya Nagarik
Surakhsha Sanhita (in short BNSS), 2023 involves exercise of sound judicial
discretion before a Magistrate can order a police investigation into a
cognizable offence. While the legislature has introduced the said provision in
place of section 156 (3) of the Cr.P.C., it provided a more structured and
formalized procedural framework. The key aspects of section 175 (3) of the
BNSS are :-
(a) obligatory rudiments:- the Magistrate must verify that the
complainant previously approached before the police station and
thereafter to superintended of police or similar officer under section
173 (4) and that the application under section 175(3) is supported by
an affidavit.
(b) Judicial discretion and preliminary inquiry:- the Magistrate is
empowered to make ‘such inquiry as he thinks necessary’ before
ordering an investigation. This inquiry determines if sufficient cause
for investigation exists, which has been designed to prevent abuse of
the process in connection with frivolous complaints.
(c) Compulsory retort from police:- a significant change in BNSS is the
mandatory requirement for the Magistrate to consider submissions
made by the police officer regarding the issue as to why the FIR was
not registered.
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3. In Omprakash Ambedkar Vs. State of Maharashtra and Ors.
reported in AIR 2025 SC 970 Supreme Court has explained the
requirements in para 31 which runs as follows:-
31.A comparison of Section 175(3) of the BNSS with Section 156(3) of the Cr.P.C.
indicates three prominent changes that have been introduced by the enactment of
BNSS as follows:a. First, the requirement of making an application to the
Superintendent of Police upon refusal by the officer in charge of a police station to
lodge the FIR has been made mandatory, and the applicant making an application
under Section 175(3) is required to furnish a copy of the application made to the
Superintendent of Police under Section 173(4), supported by an affidavit, while
making the application to the Magistrate under Section 175(3).b. Secondly, the
Magistrate has been empowered to conduct such enquiry as he deems necessary
before making an order directing registration of FIR.c. Thirdly, the Magistrate is
required to consider the submissions of the officer in charge of the police station as
regards the refusal to register an FIR before issuing any directions under Section
175(3).
4. In view of the judicial interpretation of section 156(3) of the Cr.P.C. in
various judgments passed by the Supreme Court in Lalita Kumari Vs.
Government of UP and Ors. reported in (2014) 2 SCC 1 and Priyanka
Srivastava & another Vs. State of UP & Ors. reported in (2015) 6 SCC
287, and Ram Dev Food Products Private Ltd. Vs. State of Gujarat
reported in (2015) 6 SCC 439, Babu Venkatesh & Ors. Vs. State of
Karnataka & Anr. (Feb 18, 2022) and from some others judgments, it is
clear that the changes introduced in section 175 (3) of the BNSS is an
attempt to codify the procedural practices and safeguards which have been
introduced by the aforesaid earlier judicial decisions, aimed at curbing the
misuse of invocation of power of Magistrate by unscrupulous litigants for
achieving ulterior motives and while the legislature has drafted the new
legislation, they have also kept in mind the earlier decisions passed in this
respect. It also appears that by incorporating the provisions that the
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Magistrate is to consider the submissions made by the concerned police
officer before proceeding to issue directions under section 175(3) BNSS has
affixed greater accountability of the police officer’s responsibility for
registering FIRs under section 173.
5. Therefore the pre-conditions for exercise of discretion under section
175 (3) by a Magistrate are as follows:-
(i) Magistrate is empowered under section 210 BNSS (ii) Magistrate has considered the application under section 173(4) (iii) The application under section 175 (3) has been supported by an affidavit (iv) Magistrate has made such inquiry as it thinks necessary (v) Magistrate considered the submissions made in this regard by the police officer.
6. Since all the instant three applications primarily concerned with the
issue of scope of inquiry to be made by the Magistrate, I will come to the
others steps which are required to be followed by the Learned Magistrate,
while entertaining prayer made under section 175(3) of BNSS, at a later
stage but first of all let me consider the step to be taken by a Magistrate
while making an inquiry in such case.
7. The term inquiry is defined under section 2 (1) (k) of the BNSS as
follows:-
“(k) “inquiry” mans every inquiry, other than a trial, conducted under this
Sanhita by a Magistrate or Court;”
8. Therefore parliament has brought the twin safeguards of “inquiry” and
“affidavit” in section 175(3) to prevent it’s misuse. The 247th report of the
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BNSS, 2023 by the parliamentary standing Committee on Home Affairs after
referring to the provisions of the BNSS Bill, considered the suggestions
made and thereafter decided to adopt or reject the suggestion. Sub section
(3) of Section 175 in the draft bill reads as follows:-
“Any Judicial Magistrate empowered under Section 210 may, after
considering the application made under clause (b) of Sub-Section (4) of Section
173 and submission made in this regard by the police officer, order such an
investigation as above-mentioned”.
9. Suggestions received by the committee
“Suggestion:
The words ‘affidavit’ and ‘after such enquiry as he may think necessary’
should be added in clause 175(3) at the appropriate places, to provide
safeguards against any misuse of the law.”
10. After considering the suggestions, the committee proceeded to decide
as follows:-
“Observations/recommendations:-
The Committee is of the view that adequate safeguard should be inbuilt in
Clause 175(3) to prevent its misuse and the Clause may therefore be
reframed. The application made under section 173(4), may be considered by
the Judicial magistrate empowered under section 210, only if it is supported
by an affidavit and after conducting such enquiry as he may think necessary.
The committee therefore, recommends bringing out a suitable amendment in
the said Clause, so that its misuse can be prevented.”
11. Accordingly section 175(3) BNSS has been enacted as follows:-
“S 175.”(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.”
12. While considering the purport of the term ‘inquiry’ engrafted in section
175 (3), it is to be kept in mind that an order under this section is directive
to the police to initiate investigation. This section acts as a safeguard to
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ensure accountability allowing victims to seek judicial intervention when the
police refuses to register an FIR, while also providing a structural check to
avoid frivolous litigation. Section 175(3) explicitly empowers magistrate to
conduct an inquiry.
13. Needless to say that duty of a Magistrate at this stage of 175(3) and
the duty of the police to register an FIR at the stage of 173(3) are not the
same. At the stage of 173(1) BNSS the police are only required to record
every information relating to the commission of a cognizable offence. In
Lalita Kumari Vs. State of U.P. (supra) Supreme Court had laid down in
law in this context in paragraph 120 which runs as follows:-
Conclusion/Directions
120. In view of the aforesaid discussion, we hold:
120.1. The registration of FIR is mandatory under Section 154 of the Code, if the
information discloses commission of a cognizable offence and no preliminary
inquiry is permissible in such a situation.
120.2. If the information received does not disclose a cognizable offence but
indicates the necessity for an inquiry, a preliminary inquiry may be conducted
only to ascertain whether cognizable offence is disclosed or not.
120.3. If the inquiry discloses the commission of a cognizable offence, the FIR
must be registered. In cases where preliminary inquiry ends in closing the
complaint, a copy of the entry of such closure must be supplied to the first
informant forthwith and not later than one week. It must disclose reasons in brief
for closing the complaint and not proceeding further.
120.4. The police officer cannot avoid his duty of registering offence if cognizable
offence is disclosed. Action must be taken against erring officers who do not
register the FIR if information received by him discloses a cognizable offence.
120.5. The scope of preliminary inquiry is not to verify the veracity or otherwise
of the information received but only to ascertain whether the information reveals
any cognizable offence.
120.6. As to what type and in which cases preliminary inquiry is to be
conducted will depend on the facts and circumstances of each case. The category
of cases in which preliminary inquiry may be made are as under:
(a) Matrimonial disputes/family disputes
(b) Commercial offences
(c) Medical negligence cases
(d) Corruption cases
(e) Cases where there is abnormal delay/laches in initiating criminal prosecution,
for example, over 3 months’ delay in reporting the matter without satisfactorily
explaining the reasons for delay.
The aforesaid are only illustrations and not exhaustive of all conditions which
may warrant preliminary inquiry.
120.7 [Ed.: This correction is based on para 120.7 as corrected vide
order in Lalita Kumari v. State of U.P., (2023) 9 SCC 695.] . While ensuring
and protecting the rights of the accused and the complainant, a preliminary
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inquiry should be made time-bound and in any case it should not exceed fifteen
days generally and in exceptional cases, by giving adequate reasons, six weeks’
time is provided. The fact of such delay and the causes of it must be reflected in
the General Diary entry.
120.8. Since the General Diary/Station Diary/Daily Diary is the record of all
information received in a police station, we direct that all information relating to
cognizable offences, whether resulting in registration of FIR or leading to an
inquiry, must be mandatorily and meticulously reflected in the said diary and the
decision to conduct a preliminary inquiry must also be reflected, as mentioned
above.
14. However despite registering an FIR, the police shall not investigate the
case under section 176(1) (b), if it appears to the police that there is no
sufficient ground for entering an investigation. Section 176 (1) (b) states as
follows:-
“(b) if it appears to the officer in charge of a police station that there is no
sufficient ground for entering on an investigation, he shall not investigate the
case.”
15. Thus, in order to investigate, the operative factor is ‘sufficient ground’.
Therefore though the police is bound to register the information of
commission of cognizable offence but he will go for investigation only if there
is sufficient ground for entering an investigation. On the other hand section
175(3) empowered any magistrate to order for an investigation on
satisfaction and after following the steps mentioned therein. Therefore, when
the magistrate passes a direction under section 175 (3) he is not only directs
the recording of FIR, which is in terms of section 173(1) but also directs
investigation which must satisfy the test of section 176 (1) i.e. “sufficient
ground”. Accordingly while a magistrate is allowing an application under
section 175(3) it must satisfy the twin tests of (i) the existence of information
of a cognizable offence (ii) sufficiency of grounds to investigate
16. If the aforesaid twin conditions do not met, then the magistrate is
authorized to reject the applications in terms of section 173(4) BNSS,
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invoking of his power under section 175 (3) of BNSS. This is also because
when a Magistrate orders for any investigation the police cannot cite proviso
(b) of section 176(1) for not to investigate on account of there being no
sufficient ground for entering on an investigation, though the police officer
after investigating the matter, can file a final report under section 193
BNSS, seeking closure of the matter and discharge the accused persons.
Therefore, the Magistrate when ordering an investigation is additionally
required to ‘inquire’ and satisfy himself after considering the submission of
the police about the existence of sufficient ground to investigate.
17. In this context I may profitably refer the observation of the Apex Court
in Lalita Kumari‘s Case (supra) laid down in in paragraph 111.
111. Besides, the Code gives power to the police to close a matter both before
and after investigation. A police officer can foreclose an FIR before an
investigation under Section 157 of the Code, if it appears to him that there is no
sufficient ground to investigate the same. The section itself states that a police
officer can start investigation when he has “reason to suspect the commission
of an offence”. Therefore, the requirements of launching an investigation under
Section 157 of the Code are higher than the requirement under Section 154 of
the Code. The police officer can also, in a given case, investigate the matter and
then file a final report under Section 173 of the Code seeking closure of the
matter. Therefore, the police is not liable to launch an investigation in every FIR
which is mandatorily registered on receiving information relating to commission
of a cognizable offence.
18. Therefore, registration of FIR does not automatically gives authority to
police to start investigation but the investigation is to be done only on
presence of ‘sufficient ground’ as contained in section 176. Now the
distinction between the duty of the police to register an FIR and the exercise
of the discretion by a Magistrate to direct an investigation has been clearly
spelt out in the case of Priyanka Srivastava (Supra).
29. At this stage it is seemly to state that power under Section 156(3) warrants
application of judicial mind. A court of law is involved. It is not the police taking
steps at the stage of Section 154 of the Code. A litigant at his own whim cannot
invoke the authority of the Magistrate. A principled and really grieved citizen
with clean hands must have free access to invoke the said power. It protects
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the citizens but when pervert litigations takes this route to harass their fellow
citizens, efforts are to be made to scuttle and curb the same.
19. If the magistrate during inquiry omits to consider the requirement of
‘sufficient ground’ for investigation as stated in section 176 to start an
investigation on the basis of registration of FIR, the unintended consequence
will be the nullification of section 176(1) (b) of BNSS. The statute in section
173(3) of BNSS prescribes a preliminary enquiry by the police at the time of
registration of an FIR involving offences punishable with sentence between 3
to 7 years. However, section 175(3) of BNSS requires ‘ inquiry’ by the
magistrate in all cases and not just for offences punishable with sentence
between 3 to 7 years. The same is consistent with the principle that the
inquiry by the magistrate is to find sufficient ground for investigation and
therefore, no exception has been made to the requirement for ‘inquiry’ on
the score of length of sentence.
20. It is true that in Priyanka Srivastava’s Case (Supra) the supreme
Court in para 30 held that in case of adjudication of a case under erstwhile
unamended section 156 (3) application, the magistrate may verify the truth
also the veracity of the allegations but in paragraph 31, court indicated the
nature of the cases where a verification of the veracity of the allegations is
required to be undertaken. Para 31 runs as follows:-
31. We have already indicated that there has to be prior applications under
Sections 154(1) and 154(3) while filing a petition under Section 156(3). 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
an application under Section 156(3) be supported by an affidavit is 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).
That apart, we have already stated that the veracity of the same can also be
verified by the learned Magistrate, regard being had to the nature of
allegations of the case. We are compelled to say so as a number of cases
pertaining to fiscal sphere, matrimonial dispute/family disputes, commercial
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offences, medical negligence cases, corruption cases and the cases where
there is abnormal delay/laches in initiating criminal prosecution, as are
illustrated in Lalita Kumari [(2014) 2 SCC 1 : (2014) 1 SCC (Cri) 524] are being
filed. That apart, the learned Magistrate would also be aware of the delay
in lodging of the FIR.
21. In Ram Dev Food Products Private limited Vs. State of Gujarat
(supra) Supreme Court held in paragraph 32 as follows:-
32. We now come to the last question whether in the present case the
Magistrate ought to have proceeded under Section 156(3) instead of Section
202. Our answer is in the negative. The Magistrate has given reasons, which
have been upheld by the High Court. The case has been held to be primarily of
civil nature. The accused is alleged to have forged partnership. Whether such
forgery actually took place, whether it caused any loss to the complainant and
whether there is the requisite mens rea are the questions which are yet to be
determined. The Magistrate has not found clear material to proceed against the
accused. Even a case for summoning has not yet been found. While a
transaction giving rise to cause of action for a civil action may also involve a
crime in which case resort to criminal proceedings may be justified, there is
judicially acknowledged tendency in the commercial world to give colour of a
criminal case to a purely commercial transaction. This Court has cautioned
against such abuse.
22. Therefore, what culled out from the aforesaid discussion is that if
Magistrate is in favour of allowing an application under section 175(3), then
he himself must conduct an exercise by way of an inquiry and not through a
police officer to satisfy himself about the essential conditions:-
(a) On information of about cognizable ground
(b) Of the presence of sufficient ground.
23. It is to be made clear in this context that the term “……and after
making such inquiry as he thinks necessary ……..” must not include any
enquiry by police officer. The aforesaid inquiry must have to be done by the
Magistrate himself as clearly manifested from the intention of the
legislature, who stressed the words ‘such inquiry as he thinks necessary’. It
would be a fallacious thinking that the legislative intention incorporating
said words, was to entrust the same police agency to make
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enquiry/investigation who has once refused to start investigation for their
own reasoning that the same exists lack of “sufficient ground”. Therefore, it
would be paradoxical to ask the same agency to report whether the
allegations justifies for initiation of investigation or not. However at this
stage magistrate is not expected to make roving inquiry. The argument that
the inquiry envisaged in section 175(3) also includes investigation by police
is not only contradictory but also if it is accepted, there is every likelihood
that it would lead to rampant corruption, when the same agency would be
asked to submit a report. It also can never be the intention of legislature
that Magistrate should ask police to make an inquiry and simultaneously to
ask the same police to answer why they have refused to start investigation.
Above all from the definition of ‘inquiry’ under section 2(1) (k) as quoted
above the ‘inquiry’ must have been conducted by a magistrate or a court. If
the legislature would have any other intention to explain the term they
would have used the term investigation in place of inquiry as used in section
225 of BNSS or would have made an explanation that for the purpose of that
section, inquiry includes investigation. In the absence of such wording, the
direction by the Magistrate to make inquiry by police to ascertain the
sufficiency of making direction for investigation is clearly abuse of process of
law.
24. However, what should be the manner or procedure for inquiry to be
adopted by Magistrate/Court to satisfy himself about existence of
‘cognizable offence’ and also existence of ‘sufficient ground to investigate’
shall be laid down by magistrate himself which may vary from case to case,
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since the legislature has clearly framed the law stating ‘as he thinks
necessary’ and no straight jacket formula can be laid down about the
procedure to be adopted by magistrate himself to conduct such inquiry,
while dealing with an application under section 175(3), but one thing is
certain that such inquiry must be conducted by the magistrate himself.
25. While considering the other step to be taken by magistrate/court
regarding consideration of submission made by a police officer is clear from
using the word ‘in this regard’ which signifies that consideration of
submissions made by police to be confined only about the cause of refusal
to start investigation. Since there had been two rejections from two different
layers of police officials, the learned magistrate must ask an explanation
from the officer-in-charge, for the reason as to why the written complaint
made in earlier two occasions have not been acted. At this juncture the
similarities and or dissimilarities in between the complaints made under
section 173(1) and 173(4) and 175(3) of the BNSS should also be required to
be taken into consideration as there is a chance of
embellishment/exaggeration with the passage of time. The officer-in-charge
should give his explanation for his inaction via video conference on the same
day at a time fixed by the learned Magistrate preferably within 3 days and
physical presence of officer-in-charge should not be insisted upon in all
cases and it should be only in exceptional cases, in order to avoid the delay
in proceeding. The order of registration and/or refusal of section 175(3)
should reflect judicial satisfaction of all the aforesaid steps. In case of such
inquiry by the magistrate through video conference pre requisite of Calcutta
High Court Video Conference, rules should be adhered to
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26. In this context it also needs to be mentioned that in XXX Vs. State of
Kerala and Ors. reported in 2026 SCC Online, SC 114 the Supreme Court
has laid down the procedure to be followed and when must section 175(4) be
invoked which is in the form of a guideline for the judicial Magistrate and
needs to be scrupulously followed while entertaining an application under
section 175(4) of BNSS, where it has been clearly laid down that 175(4) is
not an independent provision and sub section (3) and subs section (4) of
section 175 are not isolated silos but must be read in harmony with sub-
section (4) forming an extension of sub section (3). The relevant portion may
be quoted below.
“WHEN MUST SECTION 175 (4) BE INVOKED – A GUIDE FOR JUDICIAL
MAGISTRATES
45. Having clarified the symbiotic relationship between sub-sections (3) and (4)
of Section 175, it is indispensable to indicate the circumstances in which the
procedure under sub-section (4) could get activated. Significantly, sub-section (4)
of Section 175 uses the modal verb “may” and not ‘shall’. In the context where it
finds place and the object that is sought to be achieved, “may” has to be read
as “may”, bearing an element of discretion, and not ‘shall’. The principles,
discussed in the following paragraphs, are intended to guide judicial
magistrates at the stage of considering applications under Section 175.
46. Upon receiving a complaint under sub-section (4) of Section 175, BNSS
alleging commission of an offence by a public servant arising in course of the
discharge of his official duties, the magistrate may do either of the following:
46.1 Reading the complaint, if the judicial magistrate is prima facie satisfied
that commission of the alleged act giving rise to an offence arose in course of
discharge of official duties by the public servant, such magistrate may not have
any option other than following the procedure prescribed under sub-section (4) of
Section 175 of calling for reports from the superior officer and the accused public
servant.
46.2 Or, on a consideration of the complaint, where the judicial magistrate
entertains a prima facie doubt depending upon the circumstances as to whether
the offence alleged to have been committed by the public servant arose in course
of discharge of his official duties, such magistrate might err on the side of
caution and proceed to follow the procedure prescribed in sub-section (4) of
Section 175.
46.3 Or, where the judicial magistrate is satisfied that the alleged act of offence
was not committed in the discharge of official duties and/or it bears no
reasonable nexus thereto, and also that the rigours of sub-section (4) of Section
175 are not attracted, the complaint may be dealt with in accordance with the
general procedure prescribed under sub-section (3) of Section 175.
47. It is hereby clarified that the judicial magistrate would continue to retain the
authority to reject an application under sub-section (3) of Section 175, lodged
against a public servant, where such magistrate finds that the allegations made
therein are wholly untenable, manifestly absurd, or so inherently improbable
that no reasonable person could conclude that any offence is disclosed.
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However, it is needless to observe, such an order of rejection ought not to be
based on whims and fancy but must have the support of valid reasons.
48. A situation may arise where, in an appropriate case, the judicial magistrate
has called for a report from the concerned superior officer under clause (a) of
sub-section (4) of Section 175, but such officer fails to comply with the direction
or does not submit the report within a reasonable period of time. What is the
course open to the magistrate in such a situation? In the unlikely event of such a
situation, we hold, the judicial magistrate is not obliged to wait indefinitely for
compliance and may proceed further in accordance with sub-section (3) of
Section 175 after considering the version of the accused public servant under
clause (b) of sub-section (4) of Section 175, if on record. What would constitute
‘reasonable time’ cannot be determined in rigid or inflexible terms and must
necessarily depend upon the facts and circumstances of each case before the
judicial magistrate who has to take the call.
27. I may further add that for a proper exercise of this obligation the
Magistrate is also required to see that 173(4) application is the same as the
173 (1) information. If however, the 173(4) application contains additions
to the 173(1) information then calling upon the police and to consider the
submissions of the police as regards the refusal to register an FIR would be
misconceived. Thus in case the 173(4) application contains addition to the
173(1) information, the 173 (4) application cannot be entertained under the
statute as power under section 175(3) can only be exercised after
considering submission of police and police in such circumstances cannot
make any meaningful submission as 173(4) application contains additions
not found in section 173(1) information.
28. Therefore, to sum up, the course of action to be adopted in such cases
may be stated below:-
(1) Every information relating to the commission of a
cognizable offence, irrespective of the area where the offence is
committed, may be given orally or by electronic communication
to an officer in charge of a police station, and if given–
(i) The information must relate to a cognizable offence.
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(ii) If given orally, it shall be reduced in writing by officer-in-
charge or under his direction and be read over to the informant
and signed by the informant.
(iii) If given by electronic communication, the same shall be
taken on record by him on being signed within three days by
the communicator of such information.
(iv) The substance of the information shall be entered in a book
to be kept by the officer-in-charge in such form as the State
Government may by rules prescribe.
(2) A copy of the information shall be given forthwith, free of
cost, to the informant or the victim.
(3) On receipt of information relating to the commission of any
cognizable offence, which is made punishable for three years or
more but less than seven years, the officer-in charge of the
police station may:
(i) proceed to conduct preliminary enquiry, terminable within
a period of 14 days, to ascertain whether there exists a prima
facie case for proceeding in the matter; or
(ii) proceed with the investigation when there exists a prima
facie case;
(4) A person aggrieved by a refusal on the part of an officer-in-
charge of a police station to record the information, may send
the substance of such information, in writing and by post, to
the Superintendent of Police concerned.
(5) The concerned Superintended of Police, if satisfied that
such information discloses commission of a cognizable offence,
shall either investigate the case himself or direct an
investigation to be made by a police officer subordinate to him.
If such direction is passed for investigation to be made by
any police officer subordinate to Superintendent of Police, the
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said police officer shall have all the powers of an officer-in-
charge of the concerned police station in relation to that
offence.
(6) if Superintendent of Police concerned does not take any
action as contemplated under section 173(4) BNSS, the
aggrieved person/ complainant may make an application to the
Magistrate empowered under section 210 by way of affidavit in
terms of Section 175(3) BNSS.
(7) The Magistrate, while considering the application interms of
173(4) BNSS is required to call for a report from the police
officer, i.e., the officer-in-charge of the concerned police station
who failed to discharge his statutory duties in terms of section
173(1) BNSS.
8) After the response is received from the police officer, the
Learned Magistrate needs to conduct the proceeding in the
following manner:-
(a) Consider the application made under Sub-section (4) of
Section 173 BNSS
(b) Make such enquiry as he thinks necessary but the Learned
Magistrate cannot sub-delegate such power of enquiry beyond
the definition clause
(c) Consider the submission made in this regard by the
officer-in-charge of the concerned police stationIf the Learned Magistrate thereafter, is satisfied that the
officer-in-charge of the concerned Police Station should have
acted in terms of Section 173(1) BNSS, the Learned Magistrate
would order an investigation in terms of Section 175(1)BNSS.
10. where a Magistrate receives a complaint under Section
173(4) BNSS against a public servant in respect of acts alleged
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to have been committed in the discharge of official duties, the
Magistrate may order investigation only subject to the law laid
down by the Apex Court in the case of XXX Vs/ State of
Kerala & Ors., (supra) as quoted above.
A. Section 175(4) BNSS must be read with section 175(3)
:The Court held the provision is not stand alone and must be
read in harmony with section 175(3), meaning complaints
triggering Section 175(4) must satisfy all procedural
requirements of section 175(3), including written application
and affidavit support.
B. Affidavit Requirement is Mandatory: A complaint under
section 175(4) must be in writing and supported by an affidavit,
as an additional procedural safeguard, and cannot dispense
with the requirement under section 175(3)
C. Judicial Magistrate’s Role: Section 175(4) prescribes
additional safeguards for complaints against public servants,
including calling for a superior officers’ report and giving the
accused an opportunity to respond, but does not override or
substitute the basic procedural mandates of section 175(3).
D. Scope of “Discharge of official Duty: The court clarified
that whether alleged acts occurred in the course of official
duties must be assessed in context; such a nexus does not pre-
judge guilt but determines the applicability of procedural
safeguards mentioned in section 175(4).
29. Since in the above mentioned three applications, the “inquiry” had not
been done by Magistrate and there is non-compliance of the steps
contemplated in section 175(3) BNSS as discussed above, the order directing
the police to start investigation by the concerned magistrates in all the three
cases are hereby set aside. Hence I remit all the three matters to the
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concerned magistrate for passing fresh orders under the guideline as laid
down above and in compliance with section 175(3) BNSS and to pass order
afresh preferably within a period of 30 days from the date of this order.
However, it is made clear that I have not gone into the merits of the
complaint and the Magistrate shall be free to take decision, uninfluenced by
any observation made by this High Court.
30. CRR 467 of 2026, CRR 363 of 2026 and CRR 4982 of 2025 are
accordingly disposed of.
31. Registrar General shall circulate one copy of this order to all the
District Judges, who in turn shall circulate the order to concerned
Magistrates of the District.
Urgent photostat certified copy of this order, if applied for, be supplied to the
parties, on priority basis on compliance of all usual formalities.
(DR. AJOY KUMAR MUKHERJEE, J.)
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