Swarnalata Jena v. State of Odisha: the Section 175(3) BNSS duty to hear the police

The facts in brief

The petitioner, Swarnalata Jena, complained that the police had not registered an FIR despite her complaints of inaction. Rather than pursuing the statutory route before the jurisdictional Magistrate, she approached the High Court of Orissa under Article 227 of the Constitution, seeking a direction to the police to register an FIR.

The petition came before Justice Gourishankar Satapathy, sitting as a single judge of the High Court of Orissa at Cuttack, and was decided on 3 February 2025. It is reported at 2025 SCC OnLine Ori 278 and as 2025 LiveLaw (Ori) 19, and was registered as CRLMP No. 1633 of 2024. The case gave the Court occasion to set out the procedure that the new Sanhita prescribes for a complaint of FIR non-registration, and to explain how that procedure differs from the regime under the repealed Code of Criminal Procedure, 1973.

From Section 156(3) CrPC to Section 175(3) BNSS

Under the old Code, a person aggrieved by police refusal to register an FIR could move the Magistrate under Section 156(3) CrPC for a direction to investigate. The provision was sparsely worded, and in practice Magistrates often directed investigation on an application without an elaborate prior process. The Bharatiya Nagarik Suraksha Sanhita, 2023 carries forward the magisterial-direction power, now in Section 175(3) within Chapter XIII, but it gates that power with new procedural requirements.

The architecture of the new provision builds on the complainant having first approached the Superintendent of Police. Where the police still do not act, the complainant may move the Magistrate — but the Magistrate's power to order investigation is now conditioned on a structured process rather than a bare direction. The change is deliberate: the Sanhita inserts safeguards designed to ensure that the decision to set the investigative machinery in motion is taken on a considered basis, with the police side heard.

What the Court held

Justice Satapathy held that the power to order investigation under Section 175(3) BNSS is subject to mandatory pre-conditions. Before directing an investigation on a complaint of FIR non-registration, the Magistrate must consider the complainant's application supported by an affidavit, made to the Superintendent of Police; make a proper inquiry into the matter; hear the submissions of the police officer concerned; and then pass a reasoned order. The Court framed these as cumulative requirements that distinguish the new regime from the old Section 156(3) practice.

The reported holding language captures the core of the duty.

The reasoned-order requirement ensures that the decision can be tested, and the hearing requirement ensures that the police are not bypassed when their refusal to register is the very grievance under examination. The departure from old practice is deliberate: where the Section 156(3) CrPC regime allowed a Magistrate to direct investigation on a bare application, the Sanhita interposes a structured sequence in which the police side is heard and the Magistrate's reasoning is recorded and reviewable.

The exhaustion principle

The second strand of the decision is procedural hierarchy. The Court held that an aggrieved party cannot leapfrog directly to the High Court under Article 227 to obtain a direction to register an FIR. The statutory remedy under Chapter XIII and Section 175(3) BNSS, before the jurisdictional Magistrate, must be exhausted first. Because the petitioner had bypassed that remedy and come straight to the High Court, the petition was not entertained on its merits and the petitioner was relegated to the statutory forum.

This is an application of the familiar principle that constitutional supervisory jurisdiction is not a substitute for an available and efficacious statutory remedy. Where the Sanhita itself provides a forum — the Magistrate under Section 175(3) — and a structured process for examining a refusal-to-register grievance, that forum must be approached first. The High Court's Article 227 jurisdiction remains available, but it is not the first port of call.

Why the ruling matters

As the BNSS settles into practice, the procedural content of its provisions is being worked out case by case, and Swarnalata Jena is one of the early and clear articulations of the Section 175(3) safeguard. It establishes that the magisterial direction to investigate is no longer a near-automatic consequence of an application; it is the product of a process in which the police officer is heard and the Magistrate gives reasons. For complainants, this means the route to compelling investigation runs through a defined sequence — SP-level affidavit application, then the Magistrate — rather than through the High Court. For the police, it means their refusal to register cannot be overturned without their submissions being considered.

The decision has high recurrence value precisely because complaints of FIR non-registration are routine, and the question of how the new Sanhita treats them will arise constantly. The judgment supplies the answer: the Section 175(3) gate is procedural as well as substantive, and the reasoned-order and police-hearing requirements are mandatory.

The shape of the new procedure

It is worth drawing out what the decision adds to BNSS practice. The old Section 156(3) jurisprudence emphasised the existence of the power and the circumstances in which it should be exercised; the new Section 175(3) regime, as read here, layers a defined process on top of the power. The complainant's prior approach to the Superintendent of Police, supported by affidavit, is a precondition; the Magistrate's inquiry and the hearing of the police officer are steps in the decision; and the reasoned order is the output. Each step is justiciable, which is what makes the requirements meaningful rather than formal.

The ruling thus does two things at once. It tells aggrieved complainants how to obtain an investigation — through the statutory sequence, not by leapfrogging to the High Court — and it tells Magistrates how to decide such applications — by hearing the police and recording reasons. Both halves are likely to be cited frequently as the BNSS displaces the CrPC across the criminal-procedure landscape.

The audi alteram partem dimension

Underlying the Section 175(3) safeguard is a recognisable principle of natural justice: the party whose conduct is impugned should be heard before an adverse order is made. In a refusal-to-register grievance, the impugned conduct is the police officer's decision not to register the FIR. To direct an investigation without hearing that officer would be to overturn his decision without giving him the opportunity to explain it — perhaps he registered a different cognizable offence, perhaps the complaint disclosed no cognizable offence at all, perhaps the matter was already under inquiry. The hearing requirement ensures that the Magistrate's order rests on a full picture rather than on the complainant's account alone.

The reasoned-order requirement performs a complementary function. An order that directs investigation, or declines to, must articulate why. Reasons make the order intelligible to the parties, enable the police to understand the basis on which they are being directed to act, and render the order capable of meaningful review if it is challenged. Together, the police hearing and the reasoned order convert what had often been a near-mechanical exercise under Section 156(3) CrPC into a considered, accountable judicial act under Section 175(3) BNSS.

Practice points for the new regime

For the practitioner advising a client who has been refused an FIR, Swarnalata Jena maps the route. The first step is the affidavit-supported application to the Superintendent of Police; only where that fails does the Magistrate's Section 175(3) jurisdiction arise. At the Magistrate's stage, the client should expect — and is entitled to — a process in which the police officer is heard and a reasoned order is passed, rather than an automatic direction. And the High Court is not the first port of call: a petition under Article 227 that bypasses the statutory remedy is liable to be relegated to the Magistrate, as the petitioner's was here. Each of these points will recur constantly as FIR-registration disputes are litigated under the Sanhita, which is what gives the decision its durable practical value.

Related on Valkya

• Parvinder Singh v. Directorate of Enforcement: the BNSS Section 223 pre-cognizance hearing
• Sajal Bose v. State of West Bengal: BNSS Section 528 and inherent quashing power
• Kajal v. State of Uttar Pradesh: BNSS Section 183 and magisterial discretion
• Narayan v. State of Madhya Pradesh: BNSS Section 480 and bail conditions

Sources

1. SCC OnLine Blog (SCC Times) — "Magistrate must hear Police Officer and pass reasoned order before ordering investigation under S. 175(3) of BNSS: Orissa HC reiterates": https://www.scconline.com/blog/post/2025/02/10/for-ordering-investigation-under-s-1753-bnss-magistrate-to-hear-police-officer-for-reasoned-order-orissa-hc/
2. LiveLaw — "20 Important Judgments Of Orissa High Court-2025": https://www.livelaw.in/high-court/orissa-high-court/orissa-high-court-important-judgments-2025-519090
3. 24law — "Orissa HC: Magistrate Must Hear Police Before Ordering Investigation Under S. 175(3) BNSS on FIR Non-Registration": https://24law.in/story/orissa-hc-magistrate-must-hear-police-before-ordering-investigation-under-s-175-3-bnss-on-fir-non