The Calcutta High Court has laid down a critical procedural safeguard under the Bharatiya Nagarik Surakhsha Sanhita, 2023, holding that a Magistrate cannot delegate the duty of inquiry under Section 175(3) to the police. This ruling reinforces judicial oversight in cases where police refuse to register FIRs, ensuring that judicial discretion is exercised personally and not through the very agency that declined to act.
Background & Facts
The Dispute
The three revisional applications before the Court arose from orders passed by subordinate Magistrates directing the police to initiate investigations under Section 175(3) of the Bharatiya Nagarik Surakhsha Sanhita (BNSS), 2023. In each case, the complainants had first approached the concerned police station to register an FIR for cognizable offences but were refused. They then approached the Superintendent of Police under Section 173(4) BNSS, which also yielded no action. Subsequently, they filed applications before Magistrates under Section 175(3) BNSS seeking direction for investigation. The Magistrates, without personally conducting any inquiry, directed the officer-in-charge of the police station to make an "inquiry" and submit a report on whether sufficient grounds existed for investigation.
Key Facts
- The complainants in all three cases alleged cognizable offences including fraud, criminal breach of trust, and corruption.
- Each complainant submitted a written complaint to the police station under Section 173(1) BNSS, which was ignored.
- Each complainant then filed an application under Section 173(4) BNSS before the Superintendent of Police, which remained unaddressed.
- Applications under Section 175(3) BNSS were filed before Magistrates, supported by affidavits.
- The Magistrates, instead of conducting any personal inquiry, issued orders directing the police officer to "inquire" and report back on the sufficiency of grounds for investigation.
- No Magistrate recorded reasons for concluding that a cognizable offence existed or that sufficient ground for investigation was present.
- No Magistrate considered the submissions of the police officer regarding refusal to register the FIR.
Procedural History
- CRR 467 of 2026: Application filed before Magistrate, Kolkata, on 10.12.2025; order passed on 15.01.2026 directing police to "inquire and report".
- CRR 363 of 2026: Application filed before Magistrate, Howrah, on 05.11.2025; order passed on 20.12.2025 directing police to "submit a report on sufficiency of grounds".
- CRR 4982 of 2025: Application filed before Magistrate, Burdwan, on 08.10.2025; order passed on 02.12.2025 directing police to "inquire and submit a report".
- All three orders were challenged before the Calcutta High Court by way of Criminal Revisional Jurisdiction between January and February 2026.
- Hearing concluded on 10.02.2026; judgment delivered on 17.03.2026.
The Parties' Positions
For the Petitioners
The petitioners contended that the Magistrates had abdicated their judicial responsibility by delegating the inquiry to the police, who had already refused to act. They argued that Section 175(3) BNSS requires the Magistrate to personally satisfy himself on two conditions: (i) existence of information disclosing a cognizable offence, and (ii) existence of sufficient ground for investigation. Delegating the inquiry to the police rendered the provision nugatory and violated the legislative intent.
For the Respondent/State
The State contended that the Magistrates had acted within their discretion and that the police inquiry was merely a procedural step to gather facts. It argued that the term "inquiry" in Section 175(3) could include direction to police for fact-finding, especially where the allegations were complex or required technical verification.
Relief Sought
The petitioners sought quashing of the Magistrates’ orders dated 15.01.2026, 20.12.2025, and 02.12.2025, and a direction to the Magistrates to reconsider the applications under Section 175(3) BNSS by personally conducting an inquiry and complying with all statutory requirements.
The Legal Issue
The central question was whether a Magistrate, under Section 175(3) of the Bharatiya Nagarik Surakhsha Sanhita, 2023, may delegate the duty of inquiry to the police officer whose refusal to register an FIR is under challenge, or whether the inquiry must be personally conducted by the Magistrate.
Arguments Presented
For the Petitioner
The petitioners relied on the definition of "inquiry" under Section 2(1)(k) BNSS, which explicitly limits it to proceedings conducted by a Magistrate or Court. They cited Lalita Kumari v. State of U.P. and Priyanka Srivastava v. State of U.P. to argue that judicial discretion under Section 175(3) is a safeguard against police inaction and cannot be subverted by outsourcing the verification process to the same agency. They emphasized that the parliamentary standing committee had specifically recommended the inclusion of "inquiry" and "affidavit" to prevent misuse, and that allowing police to conduct the inquiry would defeat the very purpose of the provision.
For the Respondent/State
The State argued that the term "inquiry" was not strictly defined in the BNSS and could be interpreted to include preliminary fact-finding by police, especially in complex cases. It contended that requiring the Magistrate to personally interview witnesses or examine documents in every case would be impractical and delay justice. The State also pointed to the absence of explicit prohibition in the statute against police involvement in gathering information.
The Court's Analysis
The Court undertook a detailed textual, contextual, and purposive interpretation of Section 175(3) BNSS, distinguishing it from the erstwhile Section 156(3) CrPC and analyzing the legislative intent behind the changes introduced by the BNSS.
The Court observed that the legislature had deliberately introduced two new safeguards: (i) the mandatory affidavit, and (ii) the requirement of an inquiry by the Magistrate. The inclusion of the phrase "such inquiry as he thinks necessary" was not an invitation to delegate but a command for personal judicial scrutiny. The Court noted that the parliamentary standing committee had explicitly recommended these safeguards to prevent "abuse of the process by unscrupulous litigants" and to ensure that the Magistrate, not the police, acted as the gatekeeper.
"It would be paradoxical to ask the same agency to report whether the allegations justify initiation of investigation, when that very agency had earlier refused to register the FIR on grounds of insufficient ground."
The Court further held that Section 2(1)(k) BNSS defines "inquiry" as an act conducted by a Magistrate or Court, and not by police. If the legislature had intended to permit police inquiry, it would have used the term "investigation" as in Section 225 BNSS, or provided an explicit explanation. The absence of such language was decisive.
The Court also rejected the State’s argument of practicality, stating that judicial discretion does not mean judicial abdication. The Magistrate may rely on documents, affidavits, video conferencing, or written submissions from the police officer, but the evaluation must be done by the Magistrate himself. The Court emphasized that the police officer’s submission under Section 175(3) is not a report on sufficiency of grounds but an explanation for refusal to register the FIR.
The Court further clarified that the twin tests for invoking Section 175(3) are: (i) the information discloses a cognizable offence, and (ii) there exists sufficient ground for investigation under Section 176(1)(b) BNSS. The Magistrate must satisfy both conditions personally. Failure to do so nullifies the statutory check provided by Section 176(1)(b), which permits police to refrain from investigation even after FIR registration if no sufficient ground exists.
The Court also held that if the application under Section 173(4) contains additions not present in the original complaint under Section 173(1), the Magistrate cannot consider the police officer’s submission, as the officer had no opportunity to respond to the new allegations.
The Verdict
The Calcutta High Court set aside the orders of the Magistrates dated 15.01.2026, 20.12.2025, and 02.12.2025 in CRR 467/2026, CRR 363/2026, and CRR 4982/2025 respectively. The Court directed that all three matters be remitted to the concerned Magistrates for fresh consideration under Section 175(3) BNSS, strictly in compliance with the procedural requirements laid down. The Magistrates were directed to pass fresh orders within 30 days from the date of this judgment, personally conducting the inquiry and recording judicial satisfaction on both the existence of a cognizable offence and sufficient ground for investigation. The Court clarified that it had not expressed any opinion on the merits of the complaints.
What This Means For Similar Cases
Inquiry Must Be Judicial, Not Investigative
- Practitioners must now argue that any order by a Magistrate directing police to "inquire" under Section 175(3) BNSS is legally invalid.
- A petition challenging such an order should cite Section 2(1)(k) BNSS and the Calcutta HC judgment as binding precedent.
- The burden shifts to the Magistrate to demonstrate personal scrutiny - through notes, orders, or video records - of the application and police submissions.
Affidavit and Police Submission Are Not Interchangeable
- An affidavit under Section 175(3) is mandatory and cannot be waived even if the complainant is represented by counsel.
- The police officer’s submission must relate only to the reasons for refusing to register the FIR under Section 173(1), not to the merits of the allegations.
- If the Section 173(4) application introduces new facts not in the original complaint, the Magistrate must reject it outright as non-compliant with Section 175(3).
Judicial Discretion Requires Active Engagement
- Magistrates cannot rely on police reports to satisfy themselves on cognizability or sufficiency of grounds.
- Video conferencing with the officer-in-charge is permissible, but the Magistrate must record reasons for accepting or rejecting the officer’s explanation.
- Failure to conduct personal inquiry renders the order void ab initio and subject to immediate quashing.
