For a cognizable offence the first route is an FIR at the police station under section 173 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), and if the police refuse, the victim must go to the Superintendent of Police and only then apply to the Magistrate under section 175(3) for an order directing investigation. A private complaint to the Magistrate under sections 210 and 223 is a separate route, and it is the right one for non-cognizable offences, for offences that the law says can be prosecuted only on complaint, and for cases where the complainant already holds the evidence. Choosing correctly at the start saves months, because each route leads to a different kind of trial and puts the burden of building the case on a different person.
What is the difference between an FIR and a private complaint?
An FIR sets the police machinery in motion; a complaint asks a Magistrate to take cognizance directly. Under section 2(1)(h) of the BNSS, a "complaint" is an allegation made orally or in writing to a Magistrate with a view to his taking action, and it expressly excludes a police report. An FIR is information about a cognizable offence recorded by the officer in charge of a police station under section 173 (formerly section 154 CrPC).
| Point | FIR route | Private complaint route |
|---|---|---|
| Where you go | Officer in charge of the police station | Magistrate competent to take cognizance |
| Provision | Section 173 BNSS (formerly s. 154 CrPC) | Sections 210(1)(a) and 223 BNSS (formerly ss. 190(1)(a) and 200 CrPC) |
| Offences | Cognizable offences | Any offence, cognizable or not |
| Who collects evidence | Police investigate and file a police report | Complainant leads evidence; Magistrate may order inquiry or investigation under s. 225 |
| Arrest | Police may arrest in cognizable cases subject to the BNSS safeguards | No arrest at the complaint stage; the accused is summoned |
| Trial type | Usually a case instituted on a police report | A complaint case, where the complainant must actively prosecute |
| Cost and effort for the victim | Low once registered | Higher: affidavits, witnesses, appearances |
The trial procedure also differs. In warrant cases, the BNSS has separate tracks for cases instituted on a police report and cases instituted otherwise than on a police report, and in a complaint case the complainant's absence can lead to discharge or acquittal in some situations. A complaint is not a lighter option; it is a different one.
When should you go to the police first?
Go to the police first whenever the facts disclose a cognizable offence and you need the State's investigative powers: search, seizure, recovery, forensic examination, arrest or custodial interrogation. Theft, cheating with an unknown accused, cyber fraud, hurt, sexual offences and offences involving violence all fall here. A private complainant cannot obtain call records, CCTV footage from third parties or bank trails on her own; the police can.
Registration is not a matter of police discretion. In Lalita Kumari v. Government of Uttar Pradesh, a Constitution Bench held that registration of an FIR is mandatory when the information discloses a cognizable offence. The BNSS keeps this rule but adds a statutory exception in section 173(3): for cognizable offences punishable with three years or more but less than seven years, the officer in charge may, with the prior permission of an officer not below the rank of Deputy Superintendent of Police, conduct a preliminary enquiry within fourteen days to see whether a prima facie case exists.
The BNSS also allows information to be given by electronic communication, and an FIR can be registered irrespective of the area where the offence was committed. For a plain-language explanation of the difference between the two documents, the Legal Firms guide on FIR versus complaint is useful to share with a client or family member.
What can you do if the police refuse to register an FIR?
If the officer in charge refuses, the BNSS requires you to escalate in a fixed order: first to the Superintendent of Police, then to the Magistrate. Skipping a step is the most common reason applications are returned.
- Write to the Superintendent of Police. Under section 173(4), a person aggrieved by the refusal may send the substance of the information in writing and by post to the Superintendent of Police concerned. If satisfied that a cognizable offence is disclosed, the SP must investigate himself or direct a subordinate officer to investigate.
- Keep proof. Retain the postal receipt and a copy of the letter. You will need to show the Magistrate that you went to the SP.
- Apply to the Magistrate under section 175(3). The application must be supported by an affidavit. Section 175(3) (formerly section 156(3) CrPC) allows a Magistrate empowered under section 210 to order investigation "after considering the application supported by an affidavit made under sub-section (4) of section 173".
- Expect an inquiry and a police response. The Magistrate may make such inquiry as he thinks necessary and must consider the submission of the police officer before ordering investigation.
- If investigation is ordered, the police register the FIR and investigate as in any cognizable case, ending in a police report.
These requirements put into statute what the Supreme Court had already insisted on. In Priyanka Srivastava v. State of Uttar Pradesh (2015), the Court held that applications under section 156(3) CrPC must be supported by an affidavit sworn by the applicant, and that the applicant should first have approached the police and the Superintendent of Police. The aim was to stop section 156(3) being used to harass people through casual applications. In Sakiri Vasu v. State of Uttar Pradesh (2008), it had held that the remedy for a grievance about non-registration or improper investigation lies first with the police hierarchy and then with the Magistrate, not directly with the High Court. In Om Prakash Ambadkar v. State of Maharashtra (2025), the Supreme Court read section 175(3) as requiring the prior application to the SP, the affidavit and consideration of the police officer's explanation, so that the Magistrate's order reflects real application of mind.
The application to a Magistrate for investigation under the BNSS on LegalDrive gives a working format for step 3.
When is a private complaint the better route?
A private complaint is the better, and sometimes the only, route in four situations.
The offence is non-cognizable. Under section 174, when information about a non-cognizable offence is given at a police station, the officer enters it in a book and refers the informant to the Magistrate. Police cannot investigate a non-cognizable case without a Magistrate's order. Simple hurt in some forms, criminal intimidation in some forms and defamation are common examples where the complaint route is natural.
The law requires a complaint. Some offences can be taken cognizance of only on a complaint by a specified person. Under section 222 BNSS (formerly section 199 CrPC), a court takes cognizance of defamation under section 356 of the BNS only on a complaint by a person aggrieved, subject to the exceptions in that section. Under section 142 of the Negotiable Instruments Act, cognizance of a cheque bounce offence is taken only on a written complaint by the payee or holder in due course.
The evidence is already with you. Where the dispute is document-driven, for instance a forged signature on a deed you hold, or a false statement in a reply affidavit, the complainant may be able to prove the case without police help.
The police are themselves the problem. Where the allegation is against police officers, a complaint keeps the matter before the Magistrate from the start, though the safeguards for public servants discussed below still apply.
How does a complaint case move before the Magistrate?
A complaint case passes through four checkpoints before the accused is summoned, each designed to filter out weak or vexatious complaints.
First, under section 223 (formerly section 200 CrPC), the Magistrate examines the complainant and any witnesses present on oath, and the substance is recorded and signed. Written complaints by a public servant acting officially or by a Court are exempt from this.
Second, the BNSS adds a new protection. The first proviso to section 223(1) says no cognizance of an offence shall be taken by the Magistrate without giving the accused an opportunity of being heard. This has no counterpart in section 200 CrPC, and complainants should expect the accused to appear at the cognizance stage.
Third, under section 225 (formerly section 202 CrPC), the Magistrate may, and where the accused resides outside his jurisdiction shall, postpone issue of process and either inquire himself or direct investigation by the police or another person. No direction for investigation can be made where the offence is triable exclusively by the Court of Session.
Fourth, the Magistrate either dismisses the complaint with brief reasons under section 226 (formerly section 203 CrPC) or issues process under section 227 (formerly section 204 CrPC).
Complaints against public servants carry an extra layer. Under section 223(2), a Magistrate shall not take cognizance on a complaint against a public servant for an offence alleged in the course of official functions unless the public servant is given an opportunity to make assertions about the situation, and a report is received from his superior officer. Section 175(4) contains a parallel requirement before the Magistrate orders investigation on such a complaint.
Three short scenarios
These hypothetical cases show how the choice plays out.
A phone snatching. Suppose Ravi's phone is snatched by two men on a motorcycle. The accused are unknown and the evidence is CCTV footage and phone location data. Only the police can gather this. Ravi should register an FIR, by e-FIR if available, and if refused, write to the SP before approaching the Magistrate.
A defamatory post. Suppose Meena's former business partner publishes a false and damaging statement about her in a trade newsletter. Defamation is non-cognizable, and section 222 requires a complaint by the person aggrieved. Meena files a complaint before the Magistrate with the newsletter copy and two witnesses who read it.
A dishonoured cheque. Suppose a supplier's cheque is returned for insufficient funds. Section 142 of the NI Act allows cognizance only on a written complaint by the payee. An FIR is not the route at all.
General information only; a lawyer should be consulted for a specific case. If you want an advocate's view on your own facts, the criminal law section of Ask a Lawyer is one option.
How is this tested in exams?
Judiciary papers test this through problem questions ("advise X, whose FIR was refused") and through one-line prelims questions on section numbers. The examiner wants the escalation sequence under sections 173(4) and 175(3), the new affidavit and hearing requirements, and the old CrPC numbers in brackets.
Common mistakes:
- Writing that a person whose FIR is refused can go straight to the Magistrate. Section 175(3) now ties the application to the prior approach under section 173(4).
- Treating an order under section 175(3) as cognizance. A Magistrate who orders investigation at the pre-cognizance stage has not taken cognizance; he does that later on the police report or on a complaint.
- Forgetting the new first proviso to section 223(1), which requires the accused to be heard before cognizance on a complaint.
- Citing section 156(3) CrPC without the BNSS number. After 1 July 2024, write "section 175(3) BNSS (formerly section 156(3) CrPC)".
Key points to remember
- For a cognizable offence, start with an FIR under section 173 BNSS; for a non-cognizable offence, the police refer the informant to the Magistrate under section 174.
- On refusal, write to the SP under section 173(4) before applying to the Magistrate under section 175(3), with an affidavit.
- The Magistrate may inquire and must consider the police officer's submission before ordering investigation.
- Defamation (section 222 BNSS) and cheque dishonour (section 142 NI Act) can be prosecuted only on complaint.
- Under section 223, the complainant is examined on oath, and the accused must be heard before cognizance.
- Complaints against public servants for official acts need the public servant's version and a superior officer's report under sections 175(4) and 223(2).
Where to go next
Read Chapters XIII and XVI of the BNSS side by side, then test the section numbers in the BNSS mock tests.