SUMMARY- This blog clarifies the prior steps that must be taken before approaching a magistrate with an application under Section 156(3) CrPC- with reference to a recent judgement of the Supreme Court in Anurag Bhatnagar. We explain how the judgement in Anurag Bhatnagar ought not to be taken as a blanket exemption from the pursuing the prior steps.
Introduction
A first information report (“FIR”), is the most often used means to set criminal law in motion. Information is disclosed (verbally or in writing) to a police officer, and an FIR is registered if the commission of a cognizable offence is disclosed.
However, what is the recourse if the police refuse to register an FIR?
It is a general misconception that the next step is to approach the Ld. Jurisdictional Magistrate under Section 156(3) CrPC, 1973 (Section 175(3) BNSS, 2023), seeking a direction for the police to register the FIR.
In Priyanka Srivastava v. State of U.P.,[1] (“Priyanka Srivastava”)the Hon’ble Supreme Court clarified that after Section 154(1) CrPC (now Section 173(1) of the BNSS), the Complainant must also exhaust the remedy of Section 154(3) CrPC (now Section 173(4) of the BNSS) by filing an application before the Superintendent of Police (“SP”) of the police station concerned. The Court further clarified that at the stage of Section 156(3), the applicant must file an affidavit mentioning how the remedies under Section 154(1) and Section 154(3) CrPC were exhausted. Before passing any order under Section 156(3), the magistrate must also record the compliance of these directions.
Thus, the ruling established that an applicant can only approach the Ld. Jurisdictional Magistrate under Section 156(3) (now Section 175(3) BNSS), only after availing the prior remedies under Section 154(1) and 154(3) CrPC (Sections 173(1) and Sections 173(4) in the BNSS, respectively).
However, in a judgment dated July 25, 2025, in Anurag Bhatnagar v State of NCT Delhi,[2](“Anurag Bhatnagar”),the Hon’ble Supreme Court upheld an order under Section 156(3) CrPC even when the prior remedies under Sections 154(1) and 154(3) were not exhausted.
The judgment in Anurag Bhatnagar is being (mis)understood as heralding a new jurisprudence on the point, which may not necessarily be true.
We explore this aspect in article.
JUDGMENT IN ANURAG BHATNAGAR
The Apex Court was considering several connected matters, including the challenge to a Delhi High Court decision upholding a Ld. Magistrate’s order under Section 156(3) CrPC for the registration of an FIR, even though the Complainant had not exhausted remedies under Section 154 CrPC.
One of the specific points for consideration framed by the Hon’ble Supreme Court was “Whether an application under Section 156(3) of the CrPC could have been filed without approaching the police authorities”.
The Court noted the following key aspects:
- The police authorities were not approached by the complainant therein under Section 154(1) or Section 154(3) of the CrPC.
- The proper procedure under Section 154 must be followed before moving an application under Section 156(3) CrPC.
However, in the specific facts of this case, the Court refused to set aside the order under Section 156(3) CrPC directing the registration of the FIR on the ground that steps under Section 154 were not followed.
Specifically, the Court reasoned that “the Magistrate ought not to ordinarily entertain an application under Section 156(3) CrPC directly unless the informant has availed and exhausted his remedies provided under Section 154(3) CrPC, but as the Magistrate is otherwise competent under Section 156(3) CrPC to direct the registration of an FIR if the allegations in the application/complaint discloses the commission of a cognizable offence, we are of the opinion that the order so passed by the Magistrate would not be without jurisdiction and would not stand vitiated on this count.”
ANALYSIS
The observations in Anurag Bhatnagar are widely being construed and presented as a shift in the jurisprudence in the assumption that the Court has approved approaching the Ld. Magistrate under Section 156(3) directly without following procedure under Section 154.
We would, however, be cautious about taking such a sweeping view.
Some key aspects must be kept in mind.
- The judgment in Priyanka Srivastava was not referred to in Anurag Bhatnagar, andthe judgment was perhaps not placed before the Court at all.
- Other factors, including passage of time (the order under Section 156(3) directing the registration of the FIR was passed in 2005) and the advanced stage of investigation (a chargesheet was filed in 2020), are specific facts that are recorded in the judgment.
Given these circumstances, the factual aspects attain crucial significance in the matter. The Court recorded that, normally, the Ld. Magistrate should not entertain an application under Section 156(3) if the Complainant has not followed the steps under Section 154 CrPC.
However, the findings that the Ld. Magistrate’s order under Section 156(3) would not be vitiated on account of non-compliance of Section 154 must be considered in the peculiar facts of the matter Therefore, the Court’s observation must be considered with a reference to the unique facts of this case, particularly the passage of time and advanced stage of the investigation/trial.
A LOOK AHEAD
In our view, the judgment in Anurag Bhatnagar does not lay down an absolute proposition that an order under Section 156(3) would not be vitiated even if the prior steps under Section 154 CrPC are bypassed. Rather, the Supreme Court assessed the validity of the order under challenge in view of the peculiar facts in the case. It noted that the Ld. Magistrate was otherwise empowered to take cognizance of the offence, and thus, in those particular facts, the order was not vitiated merely on the ground of steps not being followed under Section 154 CrPC.
However, the earlier judgment in Priyanka Srivastava makes it incumbent (a) on the applicant to file an affidavit proving that steps were taken under Section 154 and (b) on the magistrate to apply judicial mind and consider whether those steps were followed and record a finding to that effect before passing any order under Section 156(3) CrPC.
Thus, any order under Section 156(3) disregarding these aspects would necessarily fall foul of the judgment in Priyanka Srivastava and be in violation of the binding law laid down by the Hon’ble Supreme Court.
The judgment in Anurag Bhatnagar may be canvassed in similar factual situations, but, in our view, this should not to be taken as an exemption from following the process under Section 154 CrPC before filing an application under Section 156(3).
It will be interesting to see how the Hon’ble Supreme Court considers a similar situation in other matters going forward, especially when the law on this position has been well settled previously and further reinforced in Priyanka Srivastava.
From a practical standpoint, the best course of action remains filing a written complaint before the police officer in charge under Section 154(1) CrPC (now Section 173(1) BNSS), escalate the matter to the SP under Section 154(3) CrPC ( now Section 174) BNSS), and only thereafter, proceed to file an application before the magistrate under Section 156(3) CrPC (now Section 175(3) BNSS).
For further information, please contact:
Kapil Arora, Partner, Cyril Amarchand Mangaldas
kapil.arora@cyrilshroff.com
[1] (2015) 6 SCC 287
[2] SLP (crl) No. 18084/2024 and other connected matters
