Magistrate Can Order FIR Under Section 156(3) CrPC Without Prior Sanction

Source: Supreme Court

Why in News? 

A bench of Justice Vikram Nath and Justice Sandeep Mehta of the Supreme Court, in Brinda Karat v. State of NCT of Delhi and Others (2026), held that a Judicial Magistrate does not require prior sanction under Sections 196 or 197 of the Code of Criminal Procedure before directing the registration of an FIR under Section 156(3) CrPC (Now Section 175(3) of BNSS). The Court set aside the Delhi High Court's observation to the contrary, clarifying that the sanction requirement is a cognizance-stage condition and has no application at the pre-cognizance stage of FIR registration or police investigation.

What was the Background of Brinda Karat v. State of NCT of Delhi and Others (2026) Case? 

• CPI(M) leader Brinda Karat filed a petition seeking registration of an FIR against BJP leaders including Kapil Sharma and Anurag Thakur for alleged hate speeches made ahead of the 2020 Delhi riots. 
• The Judicial Magistrate refused to direct registration of the FIR on the ground that prior sanction under Sections 196/197 CrPC was a prerequisite. 
• The Delhi High Court upheld the Magistrate's view. 
• Aggrieved, Brinda Karat filed a Special Leave Petition before the Supreme Court. 
• The matter was heard as part of a batch of cases concerning hate speeches and hate crimes.

What were the Court's Observations? 

The Court made the following key observations: 

Prior Sanction Operates Only at Cognizance Stage: 

• The requirement of prior sanction under Sections 196 and 197 CrPC (and their BNSS counterparts — Sections 217 and 218) is triggered only when a court proceeds to take cognizance of an offence. 
• It has no application at the pre-cognizance stage, which encompasses the registration of an FIR and the conduct of police investigation under Section 156(3) CrPC or Section 175(3) BNSS. 
• A Magistrate directing registration of FIR under Section 156(3) is acting at a stage anterior to cognizance, and therefore no prior sanction is required. 

Mandatory Duty to Register FIR: 

• Reiterating the law laid down in Lalita Kumari v. Government of U.P., the Court held that the duty of the police to register an FIR upon disclosure of a cognizable offence is mandatory and admits of no discretion. 
• In case of failure to register an FIR, the law provides complete statutory remedies: an aggrieved person may approach the Superintendent of Police under Section 154(3) CrPC / Section 173(4) BNSS, invoke the Magistrate's jurisdiction under Section 156(3) CrPC / Section 175 BNSS, or file a complaint under Section 200 CrPC / Section 223 BNSS. 

No Legislative Vacuum on Hate Speech: 

• The Court observed that the existing criminal law framework — including the IPC and allied legislations — adequately addresses acts promoting enmity, outraging religious sentiments, and disturbing public tranquillity. 
• The creation of criminal offences is exclusively within the legislative domain; the doctrine of separation of powers does not permit the judiciary to create new offences or expand the contours of criminal liability through judicial directions. 
• The grievance of the petitioners arose not from the absence of law but from its lack of enforcement — a concern that does not justify judicial law-making. 

Complete Statutory Architecture: 

• The Court noted that the available remedies, read together with the supervisory jurisdiction of constitutional courts under Articles 32 and 226 of the Constitution, constitute a complete statutory architecture, leaving no room for the extraordinary intervention sought by the petitioners. 

Outcome: 

• The Supreme Court partly allowed Brinda Karat's petition to the extent of setting aside the Delhi High Court's observation that prior sanction is required for a Magistrate to direct FIR registration under Section 156(3) CrPC. 
• The Court declined to issue general directions on hate speech legislation but left it open to the Union and the States to consider whether further legislative measures are warranted, including amendments as recommended in the Law Commission's 267th Report (March 2017). 
• Contempt petitions alleging non-compliance by police officials of various states were closed.

What is Section 175 of BNSS? 

Section 175 BNSS – Police Officer’s Power to Investigate Cognizable Case: 

• The officer in charge of a police station may investigate a cognizable offence without prior permission of a Magistrate. 
• Such investigation can be conducted for offences which a court having jurisdiction over the local area can inquire into or try. 
• Superintendent of Police (SP) may, considering the nature and gravity of the offence, direct that the investigation be conducted by a Deputy Superintendent of Police (DSP). 
• Validity of investigation protected: 
  No proceedings of a police officer shall be questioned merely on the ground that the officer was not empowered to investigate the case. 
• A Magistrate empowered under Section 210 BNSS may order investigation: 
  • After considering an application supported by an affidavit under Section 173(4), and 
  • After making such inquiry as deemed necessary and considering the police officer’s submission. 
• In cases involving a complaint against a public servant arising during discharge of official duties, the Magistrate may order investigation only after: 
  • Receiving a report from the superior officer of the public servant, and 
  • Considering the version/explanation of the public servant regarding the incident. 
• Key Change: 
  Section 175 BNSS replaces Section 156 of the CrPC, introducing additional safeguards, particularly in cases involving public servants.