Section 173(4) & Section 175(3) of BNSS

Source: Gauhati High Court 

Why in News? 

The Gauhati High Court, in Satyabrata Dey v. State of Assam & Ors. (2026), held that a writ petition under Article 226 of the Constitution seeking registration and investigation of an FIR is premature where the petitioner directly approaches the High Court without first exhausting the statutory remedies available under Section 173(4) read with Section 175(3) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS). 

What was the Background of Satyabrata Dey v. State of Assam & Ors. (2026) Case? 

• The dispute arose from a tender floated by the Lanka Municipal Board for the supply of sand gravel. The petitioner quoted a rate of ₹925 per cubic metre and claimed that his bid was the lowest. However, the Municipal Board accepted another person's tender at ₹1,250 per cubic metre. 
• The petitioner further alleged that the successful bidder had not submitted the requisite Tax Clearance Certificate along with the tender documents and alleged irregularities in the tender process. 
• The petitioner had earlier approached the Gauhati High Court seeking a criminal investigation into the alleged irregularities. The writ petition was dismissed because he had not filed an FIR before approaching the Court, though liberty was granted to take recourse to the appropriate provisions of law. 
• Thereafter, the petitioner claimed to have sent an FIR by registered post to the Officer-in-Charge of Lanka Police Station. As the FIR was allegedly not registered, he again approached the High Court under Article 226 seeking a direction for registration and investigation of the FIR. 
• The State opposed the writ petition and contended that the petitioner had an effective statutory remedy under the BNSS and ought to have approached the jurisdictional Magistrate instead of directly invoking the writ jurisdiction of the High Court. 

What were the Court's Observations? 

• On the Statutory Remedy Against Non-Registration of FIR: The Court observed that the BNSS provides a specific statutory mechanism to a person aggrieved by the refusal of the police to register information relating to the commission of a cognizable offence. Such a person must first avail the remedy provided under Section 173(4) of the BNSS. 
• On Approaching the Superintendent of Police: The Court noted that under Section 173(4) of the BNSS, where the officer-in-charge of a police station refuses to record information relating to a cognizable offence, the aggrieved person may send the substance of such information to the Superintendent of Police concerned. 
• On Remedy Before the Magistrate: The Court observed that if the remedy before the Superintendent of Police does not result in the desired action, the aggrieved person can approach the jurisdictional Magistrate under Section 175(3) of the BNSS seeking an investigation in accordance with law. 
• On Direct Invocation of Article 226: The Court held that directly invoking the writ jurisdiction of the High Court for registration of an FIR, without exhausting the statutory remedies provided under the BNSS, is contrary to the settled principles of law. 
• On Applicability of Earlier CrPC Principles: The Court noted that the Code of Criminal Procedure, 1973 has been replaced by the BNSS and that Section 175 of the BNSS is akin to Section 156 of the CrPC. Therefore, the settled principles requiring exhaustion of statutory remedies before seeking writ intervention continue to apply under the new criminal procedural framework. 
• On Petitioner's Failure to Approach the Magistrate: The Court found that there was nothing in the petitioner's pleaded case to show that he had approached the jurisdictional Judicial Magistrate seeking registration and investigation of the FIR before filing the writ petition. 
• On Prematurity of the Writ Petition: The Court held that the petitioner's prayer for registration and investigation of the FIR, without previously approaching the jurisdictional Magistrate and availing the statutory remedies under Sections 173(4) and 175(3) of the BNSS, rendered the writ petition premature. 
• On Disposal: The Court declined to entertain the writ petition but granted liberty to the petitioner to avail the remedies available under the BNSS by first approaching the Superintendent of Police and thereafter the jurisdictional Magistrate, in accordance with the procedure prescribed under Sections 173(4) and 175(3). 
• The Court also clarified that its observations should not be treated as an expression of opinion on the merits of the allegations or on whether the facts disclosed the commission of any criminal offence. 

What is Section 173(4) of BNSS? 

Section 173(4), BNSS – Remedy Where Police Refuses to Record Information 

• Where the officer-in-charge of a police station refuses to record information relating to the commission of a cognizable offence, the aggrieved person may send the substance of such information, in writing and by post, to the Superintendent of Police concerned. 
• If the Superintendent of Police is satisfied that the information discloses the commission of a cognizable offence, he shall either investigate the case himself or direct an investigation to be made by a police officer subordinate to him. 
• If the Superintendent of Police also fails to take appropriate action, the aggrieved person may make an application to the Magistrate. 

What is Section 175(3) of BNSS? 

Section 175(3), BNSS – Magistrate's Power to Order Investigation 

• A Magistrate empowered under Section 210 of the BNSS may, after considering an application supported by an affidavit made under Section 173(4), and after making such inquiry as he thinks necessary and considering the submissions made by the police officer in this regard, order an investigation. 

Remedy for Non-Registration of FIR under BNSS 

Police Station refuses to register FIR → Approach Superintendent of Police under Section 173(4) BNSS → If no effective action is taken → Approach jurisdictional Magistrate under Section 175(3) BNSS → Writ jurisdiction of the High Court should ordinarily not be invoked at the first instance.