Mr. Sameer, a small business owner in the city of Chandpur, found himself in a distressing situation. He had supplied a large consignment of goods to a major corporation, “Apex Innovations,” run by Mr. Rajan Verma. Despite multiple reminders and clear contractual obligations, the payment was never made. When Mr. Sameer visited the Apex Innovations office, he was threatened and told to forget about the money. He promptly went to the local police station to report the incident of cheating and criminal intimidation, but the police were hesitant to register a First Information Report (FIR), citing it as a civil matter. Frustrated, Mr. Sameer consulted a lawyer and filed a private complaint before the local Magistrate’s court. To his surprise, and Mr. Verma’s shock, the Magistrate, on the very first day of the hearing, reviewed the complaint and directed the police to register an FIR against Mr. Verma and his company under Section 173(3) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS). This was done without issuing any notice to Mr. Verma or hearing his side of the story, raising the question of the legality and procedure of such an order.

Advice in such cases

Navigating the legal system when police are unresponsive can be daunting. Whether you are the one seeking justice or the one being accused, the court’s intervention changes the entire dynamic. Understanding the procedure is crucial.

• Remain Calm and Composed: A court order for an FIR is a significant step, but it is not a verdict of guilt. It merely initiates a formal investigation.
• Organize All Documentation: Collect and arrange all relevant documents, emails, messages, contracts, and any other evidence related to the case. This is vital for both the complainant and the accused.
• Understand the Process: The order for an FIR means a police investigation will now commence. An Investigating Officer (IO) will be assigned to the case.
• Consult with Lawyer: The very basic and important step to start is talk to Lawyer / advocate. You should not hesitate in paying his consultation fee i.e. might be in range of Rs. 10,000 to 50,000 depends case to case. He is helping you in this situation of come out. He is expert in the domain and can help you explain the procedure which you might have never explored. A good lawyer can get the issues resolved much faster than you think.

Applicable Sections of Law

The legal framework for such a situation has been updated with the new criminal laws. The primary section in play here is from the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS).

• Section 173(3) of the BNSS: This section is the new equivalent of the well-known Section 156(3) of the old Criminal Procedure Code (CrPC). It empowers a Magistrate, who is authorized to take cognizance of an offence, to order an investigation by the police for any cognizable offence. This is a pre-cognizance stage, meaning the Magistrate is not yet taking the case into his own hands for trial but is directing the police to perform their statutory duty of investigation.
• Section 175 of the BNSS: This corresponds to Section 200 of the CrPC. It outlines the procedure for a Magistrate taking cognizance of an offence based on a complaint. Here, the Magistrate examines the complainant and witnesses on oath. This is a separate path where the court proceeds with the inquiry itself, rather than directing the police to do so.

The Magistrate has the discretion to either proceed under Section 173(3) or Section 175. In cases like Mr. Sameer’s, where evidence needs to be collected by an investigating agency, the Magistrate often chooses to direct the police to register an FIR under Section 173(3).

If you are the complainant

If you are in Mr. Sameer’s position and the police have refused to register your FIR, approaching the court is the correct next step.

• File a Comprehensive Complaint: Your complaint to the Magistrate must be detailed, clearly stating the facts that constitute a cognizable offence.
• Attach a Supporting Affidavit: Following the Supreme Court’s guidelines in the *Priyanka Srivastava* case, an application under Section 173(3) BNSS must be supported by a duly sworn affidavit from the complainant. This affirms the truthfulness of the allegations.
• Present Prima Facie Evidence: Attach copies of any evidence you have, such as contracts, invoices, communication records, or witness details, to show the Magistrate that an offence has indeed been committed.
• Consult with Lawyer: The very basic and important step to start is talk to Lawyer / advocate. You should not hesitate in paying his consultation fee i.e. might be in range of Rs. 10,000 to 50,000 depends case to case. He is helping you in this situation of come out. He is expert in the domain and can help you explain the procedure which you might have never explored. A good lawyer can get the issues resolved much faster than you think.
• Cooperate with the Investigation: Once the FIR is registered on the court’s order, fully cooperate with the Investigating Officer. Provide all necessary information and evidence to help them build a strong case.

If you are the victim

If you are Mr. Verma, who has suddenly found an FIR registered against you based on a court order, it is crucial to act strategically and not panic.

• Do Not Evade the Police: Cooperate with the investigation and respond to any summons from the Investigating Officer. Evasion can lead to adverse inferences and stricter actions.
• Gather Your Evidence: Immediately start collecting all evidence that proves your innocence or counters the allegations made in the FIR. This could include bank statements showing payments, communication proving a different context, or witness testimonies.
• Seek Legal Remedies: An FIR is not the end of the road. You have legal options:
  • Anticipatory Bail: If you apprehend arrest, you can apply for anticipatory bail before the Sessions Court or the High Court.
  • Quashing the FIR: If you believe the FIR is malicious, baseless, or does not disclose any criminal offence, you can file a petition in the High Court under Section 561A of the BNSS (equivalent to Section 482 CrPC) to have the FIR quashed.
• Consult with Lawyer: The very basic and important step to start is talk to Lawyer / advocate. You should not hesitate in paying his consultation fee i.e. might be in range of Rs. 10,000 to 50,000 depends case to case. He is helping you in this situation of come out. He is expert in the domain and can help you explain the procedure which you might have never explored. A good lawyer can get the issues resolved much faster than you think.

How the police behave in such cases

Once a Magistrate directs the registration of an FIR, the police’s discretion is removed. They are legally bound to comply with the court’s order. They will register the FIR verbatim as per the complaint forwarded by the court. An Investigating Officer (IO) will be assigned, who will then proceed with the investigation as per the law. This includes summoning the accused for questioning, visiting the scene of the crime, recording statements of witnesses (under Section 180 BNSS), and collecting documentary and electronic evidence. The police are required to conduct a fair and impartial investigation and submit their final report (chargesheet or closure report) to the court.

FAQs people normally have

Is it legal for a Magistrate to order an FIR without hearing the accused?
Yes, it is perfectly legal. The stage of ordering an investigation under Section 173(3) BNSS is a pre-cognizance stage. The law does not grant the prospective accused a right to be heard at this point. The Magistrate’s role is to see if the complaint discloses a cognizable offence that requires investigation, not to conduct a trial.

Can the accused challenge the Magistrate’s order to register an FIR?
While the order itself can be challenged through a revision petition, the more effective remedy is often to challenge the FIR itself in the High Court under Section 561A BNSS for quashing, once it is registered.

What is the difference between the police registering an FIR directly and one registered via a court order?
Functionally, there is no difference. Both FIRs initiate a police investigation. However, an FIR registered via court order often carries a certain weight, as it signifies that a judicial mind has already found the matter worthy of investigation, potentially leading to a more diligent police probe.

What evidence is required?

The evidence required depends entirely on the nature of the allegations. For a case like Mr. Sameer’s involving cheating and financial fraud, the evidence would include:

• Written contracts or agreements.
• Invoices, delivery challans, and receipts.
• Emails, text messages, and WhatsApp chats concerning the transaction and payment demands.
• Bank statements showing the absence of payment.
• Statements from witnesses who were aware of the deal or the subsequent refusal to pay.
• Company registration documents and other corporate records.

How long will the investigation take?

The BNSS aims to expedite the criminal justice process. While there is no strict, universally applicable deadline for all investigations, the police are expected to conclude their investigation without undue delay. For most offences, the police are expected to file their final report (chargesheet) within 90 days. However, for complex financial cases, investigations can take longer. The IO must keep the court informed about the progress of the investigation.

Advocate Sudhir Rao, Supreme Court of India