Introduction
I write this article after enduring three sleepless nights–with sincere thanks to the Learned Public Prosecutor who challenged the maintainability of my Revision Petition before the Madurai Bench of the Madras High Court.
This article examines the legal remedies and challenges that arise after a Magistrate directs the registration of an FIR under Section 156(3) of the Cr.P.C. and its successor, Section 175(3) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS).
With the advent of the BNSS, three major statutory changes were introduced:
1. Mandatory Prior Recourse & Affidavit: The applicant must first approach the SP under Section 173(4) BNSS and submit a copy of that representation along with an affidavit when filing under Section 175(3).
2. Preliminary Inquiry: The Magistrate is explicitly empowered to conduct an inquiry before directing an FIR.
3. Police Submission: The Magistrate must consider the police officer’s written reasons for refusing to register the FIR before issuing directions.
As held by the Hon’ble Supreme Court in Om Prakash Ambadkar v. State of Maharashtra & Ors. (2025), strict adherence to these three prerequisites is mandatory for any order passed under Section 175(3) BNSS. Below, I discuss the legal challenges following a Magistrate’s order—principles that apply equally under both Section 175(3) BNSS and Section 156(3) Cr.P.C.
’The views expressed below are my personal opinions
“I had summarised the Article into Five questions:-
1. Does a Magistrate Have the Power to Order a Preliminary Inquiry Instead of Directing FIR Registration?
In S. Balachandran v. State of Tamil Nadu (CRL OP(MD) No. 18477 of 2025), the Hon’ble Madras High Court reiterated that a Magistrate cannot direct a preliminary inquiry in place of ordering FIR registration if the information discloses a cognizable offence. In such cases, the Magistrate is duty-bound to direct the registration of an FIR. Interestingly, while the High Court maintained that a Magistrate is not empowered to order an inquiry without an FIR being registered, it nevertheless upheld the Magistrate’s order on the facts of that specific case, holding that the allegations fell within the illustrative categories where a preliminary inquiry was permitted by the Constitution Bench in Lalita Kumari v. Government of Uttar Pradesh & Ors. (2014) 2 SCC 1 : AIR 2014 SC 187.
In my view, while applying Lalita Kumari, the Court overlooked Paragraph 111 of the judgment, wherein the Supreme Court explicitly stated:
The above categories are only illustrations and not exhaustive of all conditions which may warrant Preliminary Inquiry.
By contrast, the Hon’ble Allahabad High Court correctly appreciated this proposition of law in Khalid Khan & Anr. v. State of U.P. & Anr. (2023 Supreme (All) 1347). Following its earlier decision in Ram Sharan Jatav v. State of U.P. & Ors. (2021:AHC:213157 / Crl. A. No. 6822 of 2019), the Court rightly held that the list of categories in Lalita Kumari is non-exhaustive.
The Court clarified that if an application/information directly discloses a cognizable offence, the Magistrate must order the registration of an FIR; however, where the information merely indicates a need for verification, a preliminary inquiry may be directed solely to ascertain whether a cognizable offence is disclosed.
Therefore, answering the first question: Yes, a Magistrate does possess the inherent statutory power to order a preliminary inquiry before directing the registration of an FIR—provided the material placed on record does not immediately disclose a clear cognizable offence on its face, but rather indicates a need for preliminary verification to ascertain whether such an offence is made out.
2. What if the Police File a Closure Report?
While a Magistrate can monitor an ongoing investigation under Section 156(3) Cr.P.C. / Section 175(3) BNSS, that jurisdiction ends once the police file a closure report.
As held by the Hon’ble Gujarat High Court in Randhirsinh Dipsinh Parmar v. State of Gujarat & Ors. (2007 SCC OnLine Guj 381), executing the initial order concludes the pre-cognizance stage. The Magistrate cannot pass fresh orders under Section 156(3). Instead, the complainant’s recourse is to file a private complaint under Section 200 Cr.P.C. / Section 223 BNSS.
This principle was affirmed by the Apex Court in Sakiri Vasu v. State of U.P. & Ors. (AIR 2008 SC 907) and reiterated in Mohan Karthik & Ors. v. State of Tamil Nadu & Anr. (Criminal Appeal No. 2193 of 2026).
Therefore, answering the Second question: Once a closure report is filed, the Magistrate’s power under Section 156(3) / 175(3) is exhausted. The aggrieved party must proceed under Section 200 Cr.P.C. / Section 223 BNSS.
3 & 4. What is the Legal Remedy Against a Magistrate’s Order Under Section 156(3) / 175(3), and Does the Proposed Accused Have the Right (Locus Standi) to Challenge It?
Much of the confusion on this topic stems from the Allahabad High Court Full Bench decision in Father Thomas v. State of U.P. (2011 SCC OnLine All 109). In that ruling, the Court held that:
- An order directing the police to register an FIR under Section 156(3) Cr.P.C. is purely an “interlocutory order,” meaning a Revision Petition is barred under Section 397(2) Cr.P.C.
- A proposed accused has no right to be heard (locus standi) until formal process is issued under Section 204 Cr.P.C., and therefore cannot challenge the Magistrate’s order through Revision or under Section 482 Cr.P.C.
In my view, Father Thomas is no longer good law.
Why “Father Thomas” is incorrect in Today’s Legal Landscape:
A. Clarified by Allahabad High Court’s Subsequent Full Bench
Recognizing the issues created by Father Thomas, another Full Bench of the Allahabad High Court in Jagannath Verma v. State of U.P. (2014 SCC OnLine All 6808 / 2014 (87) ACC 695) distinguished the decision.
The Full Bench clarified that Father Thomas dealt only with orders allowing a Section 156(3) application and did not bar a Revision Petition against an order rejecting/dismissing an application under Section 156(3). Thus, even within the Allahabad High Court, the blanket restriction was narrowed.
B. It is an Intermediate Order, Not Interlocutory
As established by the Supreme Court in Amar Nath v. State of Haryana (1977) 4 SCC 137 and Madhu Limaye v. State of Maharashtra (1977) 4 SCC 551), an interlocutory order is merely temporary and does not decide anyone’s rights. An order that substantially affects a party’s rights is an intermediate order. As highlighted in Randhirsinh Dipsinh Parmar v. State of Gujarat (2007 SCC OnLine Guj 381), once the Magistrate directs an FIR, the proceedings before the Magistrate under Section 156(3) come to an end. Thus, it is an intermediate order amenable to revision.
C. Impact on Personal Liberty and Locus Standi
In Nishu Wadhwa v. Siddharth Wadhwa (2017 SCC OnLine Del 6444), the Delhi High Court explicitly disagreed with Father Thomas. The Court rightly held that once an FIR direction is issued, the proposed accused faces immediate consequences regarding liberty, reputation, and livelihood. Therefore, the proposed accused must have the right to protect their rights before a Revisional Court.
D. Reaffirmed by Full Benches and High Courts
This position has been strengthened by the Bombay High Court Full Bench in Arun P. Gidh v. Chandraprakash Singh (2024 (4) MLJ (Crl) 279) and adopted by the Madras High Court in Karthick v. Jaikumar Christhurajan, where the Court recognized the locus of the proposed accused and set aside an order passed under Section 175(3) BNSS.
E. Supreme Court Precedents
The logic in Father Thomas relied heavily on traditional complaint procedure (Sections 200–204 Cr.P.C.). However, in Manharibhai Muljibhai Kakadia v. Shaileshbhai Mohanbhai Patel (2012) 10 SCC 517), a three-Judge Bench of the Supreme Court clarified that while a proposed accused may not have a right of hearing before the Magistrate prior to process being issued, they do have a right to be heard when proceedings reach the Revisional Court. Furthermore, decisions in HDFC Securities Ltd. v. State of Maharashtra (2017) 1 SCC 640) and Anurag Bhatnagar v. State (NCT of Delhi) (2025 INSC 895) reinforce that revision is the standard statutory mechanism rather than directly invoking Section 482 inherent powers.
Answer to Questions 3 & 4:
An order directing FIR registration under Section 156(3) Cr.P.C. / Section 175(3) BNSS is an intermediate order, not an interlocutory one. Therefore, a Revision Petition is maintainable, and the proposed accused has locus/Right to challenge the order and be heard before the Revisional Court.
5. If Revision is Allowed, Does It Automatically Render Subsequent Proceedings (FIR, Investigation, and Charge Sheet) Invalid or Quashed?
This is a critical issue where there appears to be a stark divergence in approach between the High Courts and the Supreme Court.
The View of the Bombay High Court,
In Arun P. Gidh v. Chandraprakash Singh & Ors. (2024 (4) MLJ (Crl) 279), the Full Bench of the Bombay High Court held that setting aside a Magistrate’s order under Section 156(3) does not automatically quash the investigation or charge sheet that resulted from it. The Full Bench observed:
“(f) However, where the investigation culminates into lodging of the chargesheet and/or cognizance has been taken by the jurisdictional court, the interim order or final order passed by the revisional court setting aside the order passed by the Magistrate under Section 156(3), will not have the effect of quashing the resultant prosecution.”
According to this view, even if the Revisional Court sets aside the Magistrate’s direction, the charge sheet or trial remains alive. To clear the consequential proceedings, the aggrieved party must separately approach the High Court under Section 482 Cr.P.C. / Section 528 BNSS, or under Article 227 of the Constitution.
The View of the Supreme Court
In contrast, the Supreme Court in Anurag Bhatnagar & Anr. v. State (NCT of Delhi) (2025 INSC 895) took a fundamental approach to the validity of consequential actions:
“We are conscious of the fact that investigation pursuant to the impugned FIR and the submission of the charge sheets thereof would have no lawful existence if the FIR itself is bad or the order directing registration of the FIR is found to be illegal.”
According to this principle, if the foundation—the Magistrate’s order—is declared illegal and set aside, the entire superstructure built upon it (the FIR, the investigation, and the charge sheet) collapses and loses its lawful existence.
Answer to Question 5
In my opinion, the principle stated by the Apex Court in Anurag Bhatnagar reflects the correct position of law. An illegal order under Section 156(3) Cr.P.C. / Section 175(3) BNSS is a jurisdictional defect that goes to the root of the matter. Once the underlying direction is set aside by a Revisional Court, any FIR or charge sheet stemming directly from that void order cannot lawfully survive.
Conclusion
In light of the above discussions, the legal position following a Magistrate’s order under Section 156(3) Cr.P.C. / Section 175(3) BNSS can be summarized as follows:
1. Revisability of Orders: An order passed by a Magistrate under Section 175(3) BNSS (or Section 156(3) Cr.P.C.)—whether allowing or dismissing the application—is an intermediate order, not an interlocutory one. Therefore, it is fully amenable to Criminal Revision.
2. Locus Standi of Proposed Accused: The proposed accused possesses the locus standi and has every right to challenge an adverse order before the Revisional Court to protect their personal liberty and rights.
3. Functus Officio: Once the Magistrate passes an order—whether directing a preliminary inquiry or ordering the registration of an FIR—the proceedings under Section 175(3) BNSS / Section 156(3) Cr.P.C. stand terminated. The Proceedings before the Magistrate becomes functus officio and he cannot pass further orders under that provision, except when proceeding under the complaint mechanism laid down in Sections 223 to 227 BNSS (corresponding to Sections 200 to 204 Cr.P.C.)
