SUPREME COURT CLARIFIES: MAGISTRATE DOESN’T REQUIRE PRIOR SANCTION TO DIRECT FIR REGISTRATION UNDER SECTION 156(3) CRPC
INTRODUCTION
In Ashwini Kumar Upadhyay v. Union of India & Ors., Writ Petition (Civil) No. 943 of 2021 decided on 29 April 2026, the Supreme Court of India, comprising Justice Vikram Nath and Justice Sandeep Mehta, settled a crucial procedural debate in criminal law. The Court authoritatively ruled that a Magistrate does not require prior sanction under Sections 196 or 197 of the Code of Criminal Procedure, 1973 (CrPC) [Sections 217 or 218 of the BNSS] to direct the registration of a First Information Report (FIR) and order an investigation under Section 156(3) of the CrPC [Section 175(3) of the BNSS]. The Court partly allowed the Criminal Appeal, setting aside the legal reasoning of the Delhi High Court on the issue of prior sanction. In doing so, the Supreme Court emphasized that statutory safeguards intended to prevent frivolous prosecutions cannot be weaponized as a shield to prevent the very initiation of a police investigation when a cognizable offense is alleged.
BRIEF FACTS
The factual matrix of the case arose from Complaints seeking the registration of an FIR against certain public functionaries, specifically a Former Union Minister and a Member of Parliament, for alleged “hate speeches” delivered on 27th and 28th January 2020. The Appellants claimed these speeches disclosed cognizable offenses, including the promotion of communal enmity and acts prejudicial to national integration, under Sections 153A, 153B, 295A, 504, 505 and 506 of the Indian Penal Code (IPC).
When the police authorities, including the Commissioner of Police and the Station House Officer at Parliament Street Police Station failed to take action on Complaints dated 29th January and 2nd February 2020, the Appellants approached the Trial Court. On 5th February 2020, they filed a Complaint under Section 156(3) of the CrPC [Section 175(3) of the BNSS], seeking a judicial direction for the registration of an FIR.
The Trial Court dismissed the Complaint on 26th August 2020, holding it was not maintainable in law due to the absence of prior sanction from the competent authority to prosecute the named accused public figures. The Appellants subsequently invoked the writ jurisdiction of the Delhi High Court. However, on 13th June 2022, the High Court upheld the dismissal. The High Court reasoned that the expression “taking cognizance” should be construed widely to include the exercise of powers under Section 156(3) of the CrPC [Section 175(3) of the BNSS], as it involves the application of a judicial mind, thereby attracting the statutory bar requiring prior sanction under Sections 196 and 197 of the CrPC [Sections 217 and 218 of the BNSS]. This formed the basis of the challenge before the Supreme Court.
ISSUES OF LAW
The primary question of law that arose for the Supreme Court’s consideration was: Whether the existence of prior sanction is a precondition for a Magistrate to direct the registration of an FIR and the commencement of a police investigation under Section 156(3) of the CrPC [Section 175(3) of the BNSS] in respect of offenses committed under the IPC.
ANALYSIS OF THE JUDGMENT
The Distinction Between Investigation and Cognizance
The Supreme Court approached the matter by first dismantling the High Court’s conflation of “ordering an investigation” and “taking cognizance” of an offense. The Court undertook a comprehensive examination of the statutory framework governing the initiation of criminal proceedings under the CrPC (and the corresponding BNSS).
Relying heavily on the landmark Constitution Bench decision in Lalita Kumari Vs Government of Uttar Pradesh & Ors, the Court reiterated that the registration of an FIR under Section 154 of the CrPC [Section 173 of the BNSS] is a mandatory foundational step to set the criminal law in motion if the information discloses the commission of a cognizable offense. The police have no discretion in this matter and the provision does not admit of any distinction based on the status or identity of the person accused.
The Court then examined the sequential process of criminal law. It noted that information of a cognizable offense must first be received, an FIR must be registered, an investigation must follow and a Police Report under Section 173 of the CrPC [Section 193 of the BNSS] must thereafter be submitted. It is only after this entire investigative process is complete that the question of a Magistrate “taking cognizance” under Section 190 of the CrPC [Section 210 of the BNSS] arises.
The Scope of Section 156(3) of the CrPC [Section 175(3) of the BNSS]
A central aspect of the Judgment is the Court’s reaffirmation that the power exercised by a Magistrate under Section 156(3) of the CrPC [Section 175(3) of the BNSS] falls purely at the pre-cognizance stage. Citing precedents such as Madhu Bala Vs Suresh Kumar and Mohd. Yousuf Vs Afaq Jahan, the Court clarified the options available to a Magistrate upon receiving a complaint. The Magistrate may either take cognizance under Section 190(1)(a) of the CrPC [Section 210(1)(a) of the BNSS] and proceed under Chapter XV of the CrPC or they may direct an investigation under Section 156(3) of the CrPC [Section 175(3) of the BNSS].
If the Magistrate chooses the latter and directs an investigation, they are strictly doing so before taking cognizance. The defining attribute of “taking cognizance” is the application of the judicial mind to the contents of a complaint for the specific purpose of proceeding with a trial or inquiry under the subsequent provisions of the Code (such as examining the Complainant on oath). Merely evaluating a complaint to ascertain if a proper police investigation is warranted does not amount to taking cognizance.
Furthermore, the Court addressed the High Court’s assertion that an explicit direction to register an FIR required special jurisdiction. The Supreme Court, referencing the Sakiri Vasu Judgment, held that Section 156(3) of the CrPC [Section 175(3) of the BNSS] is wide enough to include all incidental powers necessary to ensure a proper investigation, which inherently includes the implied power to order the formal registration of a criminal offense (FIR). Even if a Magistrate does not explicitly say “register an FIR” directing an investigation under this section makes it the bounden duty of the police officer to register the case.
The Application of Prior Sanction
Having established that directing an investigation is a pre-cognizance tool, the Supreme Court analyzed the specific statutory bars cited by the Subordinate Courts. The Sections 196 and 197 of the CrPC [Sections 217 and 218 of the BNSS] explicitly prohibit a court from “taking cognizance” of certain offenses (like hate speech or offenses by public servants in the discharge of official duties) without the prior sanction of the Central or State Government.
Because an order under Section 156(3) of the CrPC [Section 175(3) of the BNSS] precedes cognizance, the Supreme Court definitively ruled that the requirement for prior sanction is entirely inapplicable at this preliminary stage. The Court observed that the statutory scheme does not contemplate any embargo on the registration of a criminal case or the conduct of an investigation in the absence of prior sanction.
The Court highlighted the logical fallacy of the High Court’s position, noting that the specified authority empowered to grant sanction does so after applying its mind to the material and evidence collected during the course of the police investigation. Therefore, there is simply no occasion for the grant of sanction immediately after an FIR is lodged, nor can such power be exercised before the completion of the investigation.
The Supreme Court strongly admonished the interpretation adopted by the lower courts, stating that making the registration of an FIR contingent upon prior sanction would “invert this statutory scheme and render the provisions relating to investigation unworkable”. Investigating agencies cannot evade or dilute their statutory obligations by resorting to provisions that are only applicable at a later stage of the judicial process.
CONCLUSION
The Supreme Court partly allowed the Criminal Appeal to correct the erroneous interpretation of the law established by the Trial Court and the Delhi High Court. It conclusively held that the requirement of prior sanction under Sections 196 and 197 of the CrPC [Sections 217 and 218 of the BNSS] operates exclusively at the stage of taking cognizance and does not extend to the pre-cognizance stage of FIR registration or police investigation directed under Section 156(3) of the CrPC [Section 175(3) of the BNSS].
However, applying the law to the specific facts of the case, the Supreme Court upheld the ultimate dismissal of the Appellants’ Complaint. Upon an independent assessment of the material placed on record, including the Status Report, the Court agreed with the Subordinate Courts that the specific speeches in question did not actually disclose the commission of any cognizable offense.
Despite the dismissal on merits, this Judgment reinforces a fundamental principle of criminal jurisprudence: procedural safeguards, such as prior sanction, are designed to prevent vexatious trials at the stage of cognizance. They cannot be permitted to operate as an absolute shield to prevent the very initiation of the State’s investigative machinery when a citizen alleges a cognizable offense.
ANIKET KUMAR PARCHA
Legal Associate
The Indian Lawyers & Allied Services
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