Quick answer
If the officer in charge of a police station refuses to record information about a cognizable offence, the aggrieved person can send the substance of that information, in writing and by post, to the Superintendent of Police under Section 173(4) B.N.S.S. If the Superintendent is satisfied that a cognizable offence is disclosed, he must investigate himself or direct a subordinate officer to investigate. If that also fails, the person can apply to the Magistrate under Section 175(3) B.N.S.S., with an application supported by an affidavit.
The law
Section 173(1) B.N.S.S. requires the officer in charge of a police station to record information about a cognizable offence (an offence for which police can arrest without a warrant), whether it is given orally or by electronic communication, and irrespective of where the offence was committed. When the station refuses, the B.N.S.S. provides a two-step ladder:
- Step 1, Superintendent of Police (Section 173(4)): send the substance of the information in writing and by post to the Superintendent of Police concerned. If satisfied that it discloses a cognizable offence, the Superintendent shall either investigate personally or direct a subordinate officer to investigate. That officer has all the powers of an officer in charge of a police station.
- Step 2, Magistrate (Section 173(4) read with Section 175(3)): Section 173(4) ends by saying that, "failing which", the aggrieved person may apply to the Magistrate. Under Section 175(3), a Magistrate empowered under Section 210 (a Magistrate competent to take cognizance) considers the application supported by an affidavit made under Section 173(4), makes such inquiry as he thinks necessary, considers the submission of the police officer, and may order an investigation.
A separate route also remains open: a private complaint to the Magistrate, who examines the complainant on oath under Section 223 B.N.S.S. (old Section 200 CrPC).
Leading cases
Sakiri Vasu v. State of U.P., Supreme Court of India, 7 December 2007 (A.K. Mathur and Markandey Katju, JJ.). The Court held that a person whose FIR is not registered should first approach the Superintendent of Police under Section 154(3) CrPC and then the Magistrate under Section 156(3) CrPC. The Magistrate's power under Section 156(3) includes the implied power to direct registration of an FIR and to monitor a proper investigation, though he cannot investigate himself. High Courts should discourage writ petitions that skip these remedies, and no one can insist that a particular agency investigate.
Priyanka Srivastava v. State of U.P., Supreme Court of India, 19 March 2015 (Dipak Misra and Prafulla C. Pant, JJ.). Applications under Section 156(3) CrPC must show that the applicant first approached the police under Section 154(1) and Section 154(3), and must be supported by the applicant's sworn affidavit. Section 175(3) B.N.S.S. now writes the affidavit requirement into the statute.
Earlier, the Constitution Bench in Lalita Kumari v. Govt. of U.P. (Supreme Court, 2013) held that registration of an FIR under Section 154 CrPC is mandatory when the information discloses a cognizable offence, and that action must be taken against officers who do not register it.
Old law and new law
| Remedy | B.N.S.S. (current) | CrPC (old law) |
|---|---|---|
| Recording the FIR | Section 173(1) | Section 154(1) |
| Approach to Superintendent of Police | Section 173(4) | Section 154(3) |
| Application to Magistrate for investigation | Section 175(3), affidavit and police submission expressly required | Section 156(3), affidavit required by case law |
One new feature to note: under Section 173(3) B.N.S.S., for cognizable offences punishable with three years or more but less than seven years, the officer in charge may, with the prior permission of an officer not below the rank of Deputy Superintendent of Police, hold a preliminary enquiry within 14 days to see whether a prima facie case exists.
Example
Zoya's shop is broken into and goods are stolen. The station officer refuses to record her report. Zoya writes out the facts and posts them to the Superintendent of Police. When nothing happens, she applies to the Magistrate under Section 175(3), attaching an affidavit and proof of her earlier letter. After hearing the police, the Magistrate may order an investigation.
For the wider scheme of investigation, see the B.N.S.S. complete notes.
Exam point
Refusal to register an FIR: Superintendent of Police under Section 173(4) B.N.S.S. first, then the Magistrate under Section 175(3) B.N.S.S. on an affidavit (Sakiri Vasu, 2007; Priyanka Srivastava, 2015).
