Application of Section 175(3) BNSS: Scope, Judicial Discipline, and Safeguards Against Abuse By Advocate Avichal Pandey, Allahabad High Court

Application of Section 175(3) BNSS: Scope, Judicial Discipline, and Safeguards Against Abuse

By Advocate Avichal Pandey, Allahabad High Court

Introduction

The enactment of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) marks a paradigm shift in India’s criminal procedural framework, replacing the long-standing Code of Criminal Procedure, 1973. Among its significant provisions, Section 175(3) BNSS assumes considerable importance in regulating the powers of the Magistrate at the pre-cognizance stage, particularly in matters involving complaints against police inaction or refusal to register a First Information Report (FIR).

This provision is the statutory successor to Section 156(3) CrPC and empowers the Magistrate to direct investigation by police authorities. However, its application is neither mechanical nor unfettered. The judicial interpretation surrounding its predecessor continues to guide its usage under BNSS, emphasizing caution, accountability, and prevention of abuse of process.

This article critically examines the application, scope, limitations, and judicial safeguards surrounding Section 175(3) BNSS, supplemented with practical illustrations and evolving legal standards.

Statutory Framework

Section 175(3) BNSS provides:

“Any Magistrate empowered under 

Section 210 may order such an investigation as above-mentioned.”

A plain reading suggests that the Magistrate is vested with the authority to direct police investigation in cases where a cognizable offence is disclosed, but the police have failed to act. However, the brevity of the provision belies its complex procedural implications.

Nature and Scope of Power

The power under Section 175(3) BNSS is:

1. Discretionary in nature – The Magistrate is not bound to direct investigation merely upon receiving an application.

2. Pre-cognizance stage power – It is exercised before the Magistrate takes cognizance under Section 210 BNSS.

3. Supervisory, not investigative – The Magistrate does not investigate but directs the police machinery to do so.

The provision acts as a check on police inertia while simultaneously safeguarding individuals from frivolous criminal prosecution initiated through misuse of judicial process.

Judicial Principles Governing Application

The jurisprudence developed under Section 156(3) CrPC continues to be applicable. Courts have consistently held that:-

●The Magistrate must apply judicial mind before passing an order.

●The application must disclose a prima facie cognizable offence.

●The provision cannot be used as a tool for harassment or arm-twisting.

Mandatory Preconditions for Invocation

For a valid application under Section 175(3) BNSS, the following prerequisites must ordinarily be satisfied:-

1. Prior approach to police authorities

The applicant must demonstrate that efforts were made under Section 173 BNSS (equivalent to Section 154 CrPC).

2. Affidavit requirement

Applications must be supported by a sworn affidavit to prevent false or vexatious claims.

3. Disclosure of cognizable offence

The complaint must prima facie reveal commission of a cognizable offence warranting police investigation.

4. Absence of alternative remedy misuse

The provision should not be invoked when the complaint can be adequately addressed under private complaint procedures.

Distinction Between Section 175(3) BNSS and Complaint Cases

A crucial distinction exists between:-

●Section 175(3) BNSS (Police Investigation Route)

●Complaint under Section 223 BNSS (Magisterial Inquiry Route)

Under Section 175(3), the Magistrate delegates investigation to police, whereas under Section 223, the Magistrate himself examines the complainant and witnesses.

The choice between the two depends upon:-

●Complexity of facts

●Requirement of police expertise

●Urgency and seriousness of allegations

Illustrative Applications

Illustration 1: Police Inaction in Cognizable Offence

A complainant approaches the police alleging cheating and criminal breach of trust involving substantial financial loss. Despite written complaints, no FIR is registered.

In such circumstances, the complainant may file an application under Section 175(3) BNSS before the Magistrate. Upon satisfaction that:-

●A cognizable offence is disclosed, and

●Police authorities have failed in their statutory duty

●the Magistrate may direct registration of FIR and investigation.

Illustration 2: Civil Dispute Camouflaged as Criminal Offence

A dispute arises between two parties over breach of contract. The complainant files an application under Section 175(3) BNSS alleging cheating.

If the Magistrate finds that:-

●The dispute is purely civil in nature, and

●Criminal intent is absent at inception

the application must be rejected to prevent abuse of criminal machinery.

Illustration 3: Abuse for Personal Vendetta

An applicant files a Section 175(3) application against business rivals with exaggerated allegations and no substantive evidence.

In such cases, the Magistrate must:-

●Scrutinize the complaint carefully

●Reject the application if mala fide intent is apparent

This ensures protection against harassment through criminal litigation.

Role of Magistrate: Duty of Judicial Application

The Magistrate’s role is pivotal. The order under Section 175(3) BNSS must:-

●Reflect application of mind

●Record brief reasons

Demonstrate satisfaction regarding necessity of investigation

Mechanical or cryptic orders are liable to be set aside.

Affidavit Requirement: A Safeguard Against Misuse

The requirement of an affidavit serves multiple purposes:-

●Discourages false complaints

●Ensures accountability of the applicant

Enables prosecution for perjury in case of false statements

This procedural safeguard strengthens the integrity of criminal justice administration.

Interplay with Police Powers

While Section 175(3) empowers the Magistrate, it does not dilute the independent statutory authority of police to investigate cognizable offences.

The provision comes into play only when:-

●Police fail to perform their duty, or

●There is unjustified refusal to register FIR

Thus, it acts as a corrective mechanism rather than a substitute for police functions.

Grounds for Rejection of Application

A Magistrate may refuse to exercise jurisdiction under Section 175(3) BNSS on the following grounds:-

1. Absence of cognizable offence

2. Purely civil nature of dispute

3. Lack of supporting material

4. Mala fide or vexatious intent

5. Availability of alternative remedy

Remedies Against Improper Orders

Orders passed under Section 175(3) BNSS may be challenged through:-

●Revision jurisdiction before Sessions Court or High Court

●Petition under inherent powers of High Court

Improper exercise of jurisdiction, either by wrongful allowance or rejection, is subject to judicial scrutiny.

Comparative Analysis with Earlier Law

Though Section 175(3) BNSS mirrors Section 156(3) CrPC, certain evolving judicial trends have strengthened procedural safeguards:-

●Greater insistence on affidavit-backed applications

●Strict scrutiny to prevent criminalization of civil disputes

●Emphasis on reasoned judicial orders

Challenges in Practical Application

Despite safeguards, certain challenges persist:-

1. Overburdened Magistracy

Heavy caseload often leads to cursory examination of applications.

2. Misuse by litigants

Criminal proceedings are sometimes initiated to exert pressure in civil disputes.

3. Police reluctance

In certain cases, police deliberately avoid registration of FIR, compelling recourse to Section 175(3).

Need for Judicial Discipline

Judicial discipline demands that:-

●Magistrates act cautiously and not mechanically

●Police respect statutory obligations

●Litigants use the provision responsibly

Only through balanced application can the provision achieve its intended purpose.

Conclusion

Section 175(3) BNSS is a powerful procedural tool designed to uphold the rule of law by ensuring that cognizable offences do not go uninvestigated due to police inaction. However, with great power comes the necessity for greater restraint.

The Magistrate must act as a gatekeeper, ensuring that:-

●Genuine grievances receive due attention

●Frivolous and malicious complaints are filtered out

The provision must not become a weapon for harassment but remain a shield for justice.

Ultimately, the efficacy of Section 175(3) BNSS lies in its balanced and judicious application, guided by principles of fairness, accountability, and judicial prudence.