Section 173 – Information in Cognizable Cases
Cognizable offences -Cognizable offences, as defined by Section 2(g) of the Bharatiya Nagarik Suraksha Sanhita (BNSS), empower the police to arrest the accused without a warrant or magistrate approval..
1. How can a person report a cognizable offence?
A person can give information about a cognizable offence (serious crimes where police can arrest without prior approval) in two ways:
- Orally – The police must write it down, read it back to the informant, and get it signed.
- Electronical communication 2 (I) (email, WhatsApp, online portal, etc.) – The police must officially record it, but the informant must visit the station and sign it within 3 days.
The police will then enter the summary of the complaint in an official record book as per government rules.
2. Special Provisions for Women and Disabled Persons
- As the offence involves harassment (covered under sections 64 to 79 of the Bharatiya Nyaya Sanhita, 2023), a woman police officer or any other officer is called to record the statement.
- If the victim is mentally or physically disabled, the police must:
- Record the statement at the victim’s home or a convenient place.
- Ensure the presence of an interpreter or special educator.
- Videograph the statement.
- Get the statement recorded by a Magistrate as soon as possible to ensure legal protection.(Sec:183(6))
3. Right to a Free Copy of the Complaint
Once the police record the complaint, the informant or victim must be given a free copy immediately.
4. Police Action for Offences Punishable Between 3 to 7 for preliminary inquiry
If the offence carries a punishment between 3 and 7 years, the police officer must get permission from a Deputy Superintendent of Police (DSP) or a higher officer before taking action. The officer may:
• Conduct a Preliminary Inquiry (within 14 days) – To check if a valid case exists.
This codifies the discretionary power discussed in Lalita Kumari v. Government of Uttar Pradesh (2013) 6 SCC 404 providing a structured framework for preliminary inquiries.
The Supreme Court held that the registration of an FIR is mandatory under Section 154 of the Criminal Procedure Code (CrPC) if the information discloses a cognizable offense.
The Court allowed for a preliminary inquiry in certain cases to determine whether a cognizable offense is disclosed, specifying that such an inquiry should be time-bound. But in new ACT BNSS OVERRODE THIS JUDGMENT.
5. What if the Police Refuse to Register a Complaint?
If a police officer refuses to record the complaint, the victim can:
- Send a written complaint by post to the Superintendent of Police (SP).
2. If the SP finds the case genuine, they will either investigate it themselves or order a subordinate officer to do so.
3. If the SP does not act, the victim can approach a Magistrate to seek remedy under section BNSS sec: 175(4).
- 2025 livelaw sc 326 – Sc held before the FIR direction to the magistrate should follow the 154(1) -154(3)-then only 156(3) . If not follow that FIR – is grounds to quash .
- 2025 INSC 410– SC EVEN IF IT IS DISCRETIONARY 173(3) POLICE SHOULD CONDUCT PRILIMINARY INQUIRY.
- STATE OF RAJASTHAN vs SURENDRA SINGH RATHORE – 2025 INSC 248
This explanation deals with situations where a second FIR (First Information Report) is allowed even though an earlier FIR has already been registered for the same incident or related events. Normally, registering two FIRs for the same offence is not permitted, but there are exceptions.
Let’s break it down:
When is a Second FIR Allowed?
Counter-Complaint (Rival Version of the Same Incident)
Different Scope (Ambit) of the Two FIRs
Larger Conspiracy Revealed Later
New Facts or Evidence Discovered
Different Offences, Even If the Incident Is the Same.
AIR 2016 SCC 413
- ✅ A cognizable offence can be reported orally or electronically.
- ✅ Women victims must be handled by women officers.
- ✅ Disabled victims get special protection, including home visits and videography.
- ✅ A free copy of the complaint must be given to the informant.
- ✅ If the police refuse to act, the victim can escalate the matter to higher authorities or a Magistrate.
Section 175(3/156(3) CrPC:
The authority of a Magistrate to order an investigation in certain circumstances. Here’s a detailed breakdown:
A Judicial Magistrate, empowered under Section 210 of the BNSS, holds the authority to order investigations:
1.Application Supported by Affidavit: The process begins with an application supported by an affidavit, as stipulated under subsection (4) of Section 173 of the BNSS.
2.Consideration and Inquiry: Consider the application and the accompanying affidavit. Conduct any necessary inquiry deemed appropriate to assess the merits of the application. Review submissions made by the concerned police officer regarding the matter.
3.Ordering an Investigation: After fulfilling the above steps, the Magistrate may order an investigation into the matter as described.
Relevant Case Law: Priyanka Srivastava v. State of Uttar Pradesh (2015) 6 SCC 287
A Magistrate cannot order an investigation under Section 156(3) (now 175(3) BNSS) without an affidavit from the complainant.This affidavit ensures accountability and prevents misuse of the legal process..If not affidavit can quash the FIR based on this ground. This decision adds an important safeguard to prevent false cases and judicial misuse.
It aligns with BNSS 175(3), which requires an affidavit before a Magistrate can order an investigation.
In the case of Pawan Kharbanda vs. State of Punjab and another, the Punjab and Haryana High Court Guidelines on Applications Under Section 156(3) Cr.P.C. (Now Section 175(3) BNSS)
These guidelines explain how Magistrates should handle applications requesting police investigations under Section 156(3) of the Code of Criminal Procedure (Cr.P.C.), now Section 175(3) of the BharatiyaNagarik Suraksha Sanhita (BNSS), 2023. The aim is to prevent misuse of the law and ensure that only genuine cases receive police attention. emphasized the importance of a Magistrate conducting a preliminary inquiry before directing the registration of an FIR under Section 175(3) of the BNSS. The court highlighted that:
- The Magistrate must apply judicial mind and not act as a mere conduit for forwarding complaints to the police.
- The order directing registration of an FIR should reflect the rationale behind such a direction, ensuring that the investigative machinery is invoked only when warranted.
- This judgment underscores the checks and balances embedded within Section 175(3) to prevent misuse and ensure that investigations are initiated based on merit.
- Affidavit is Now Mandatory Before Filing an Application.
The affidavit must confirm that they first tried to report the matter to the police under Sections 154(1) and 154(3) Cr.P.C. (now Sections 173(1) and 173(4) of BNSS).
Magistrates should not act as messengers for the Police Courts must not blindly send complaints to the police. Instead, they should carefully check if an investigation is really needed.
New Safeguards Under Section 175(3) BNSS
- The Magistrate must conduct an inquiry if needed.
- The police must give their opinion before an FIR is registered.
- This ensures that public resources are not wasted on unnecessary investigations.
In the case of Om Prakash Ambadkar v. The State of Maharashtra & Others, decided on January 16, 2025, the Hon’ble Supreme Court of India provided significant guidance on how Magistrates should handle applications under Section 156(3) of the Criminal Procedure Code (Cr.P.C.), which corresponds to Section 175(3) of the BharatiyaNagarik Suraksha Sanhita (BNSS), 2023.
Case Background: The case involved a complaint by an advocate alleging misconduct by a police officer. The advocate sought the registration of a First Information Report (FIR) under various sections of the Indian Penal Code (IPC). The Magistrate directed the police to register an FIR without conducting a detailed inquiry into whether the allegations constituted a cognizable offense. The High Court upheld this decision, leading to an appeal to the Supreme Court.
Supreme Court’s Observations: The Supreme Court emphasized that Magistrates must apply their judicial mind before ordering an investigation under Section 156(3) Cr.P.C. The Court noted that:
- Judicial Application Required: Magistrates should not act merely as conduits for forwarding complaints to the police. Instead, they must assess whether the complaint discloses a cognizable offense and whether an investigation is warranted.
- Affidavit Requirement: Aligning with the precedent set in Priyanka Srivastava v. State of U.P., the Court highlighted the necessity for applications under Section 156(3) to be supported by a sworn affidavit. This ensures that the applicant is accountable and deters frivolous complaints.
- Consideration of New Provisions: The Court acknowledged changes introduced by the BNSS, particularly Section 175(3), which mandates that before directing the registration of an FIR, the Magistrate must conduct an inquiry and consider submissions made by the police officer. This adds a layer of scrutiny and aims to prevent misuse of the legal process.
NOTES PREPARED BY ADVOCATE M. SHANTHINI PUDUKKOTTTAI
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