Clarifying the Proper Respondent in Section 156(3) Cr.P.C. Petitions and the Role of the Accused

The procedural landscape of criminal law, particularly when initiating an investigation, is often fraught with confusion regarding the parties involved. A common inquiry among litigants and practitioners alike is determining the correct respondent to be named in a petition filed under Section 156(3) of the Code of Criminal Procedure (Cr.P.C.). Is it the person accused of committing the offence, or the police station that has failed to register a First Information Report (FIR)?

Understanding the distinction is vital. A petition under Section 156(3) is a request for a Magistrate to exercise their power to direct the police to register a case and commence an investigation into a cognizable offence. Given the serious nature of this judicial request, ensuring the correct procedural framework is followed is essential for the maintainability of the petition.

The Nature of the Petition and the Role of the Respondent

When a complainant files a petition under Section 156(3) Cr.P.C., they are primarily seeking a judicial command directed at the state machinery—specifically, the officer-in-charge of a police station. The Magistrate’s order under this section is a direction to the police to perform their statutory duty. As such, the proper party to be named as a respondent is the police station (the Station House Officer or Inspector-in-Charge) or the State, acting as the authority responsible for the investigation.

The term BTO, often appearing in litigation notes, typically refers to the complainant or the petitioner filing the application. It is not a legal designation for the accused. In the initial stage of a 156(3) petition, the focus is entirely on whether the police should register the FIR. The accused does not need to be—and generally should not be—impleaded as a respondent at this specific juncture.

Why the Accused Has No Locus Standi at the Pre-Summoning Stage

A critical point of law established by various High Courts and the Supreme Court is that a prospective accused has no locus standi to intervene in the proceedings initiated under Section 156(3) before cognizance is taken or process is issued.

The Full Bench of the Allahabad High Court, in the case of Father Thomas v. State of U.P., clarified that a prospective accused cannot claim a right to be heard during the stage where the Magistrate is merely deciding whether to direct a police investigation 2017 0 Supreme(Del) 3288. The logic is straightforward: the accused’s right to defend themselves truly crystallizes only once they are summoned by a court or faced with a formal accusation. Before that stage, when the Magistrate is merely exercising a discretion to order an investigation, the accused has no role.

However, it is important to distinguish this from scenarios where the Magistrate rejects the application. In Jagannath Verma v. State of U.P., the Court held that an order rejecting a 156(3) application is not an interlocutory order and is subject to revision. In such a scenario—if the complainant files a revision petition—the prospective accused becomes a necessary party and is entitled to be heard 2017 0 Supreme(Del) 3288.

The Procedural Shift: From Cr.P.C. to BNSS

While Section 156(3) Cr.P.C. has been the standard, legal practitioners must now be aware of the shift toward the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023. Specifically, Section 175(3) of the BNSS mirrors the intent of the older provision but adds more stringent procedural safeguards.

Courts have consistently held that a Magistrate is not a post office for police complaints. There are mandatory requirements that must be met before a Magistrate can issue directions for an investigation:

• Prior Approach to Police: As established in Priyanka Shrivastava v. State of U.P. and codified in the new regime, the complainant must first approach the police authorities (the Station House Officer and the Superintendent of Police) under Section 154(1) and 154(3) Cr.P.C. (or equivalent sections under the BNSS) 2026 0 Supreme(HP) 763 and 2026 Supreme(Online)(Kar) 19941.
• Affidavit Requirement: The application must be supported by an affidavit to ensure accountability and to discourage the filing of false or harassing complaints 2026 0 Supreme(HP) 760 and 2026 Supreme(Online)(Kar) 27671.
• Judicial Mind: The Magistrate is required to apply their judicial mind before issuing an order. Simply forwarding a complaint to the police station for registration has been criticized as a mechanical exercise. Under the BNSS, the Magistrate is explicitly mandated to consider the submissions of the jurisdictional police officer before ordering an investigation 2026 Supreme(Online)(Kar) 18459 and 2026 Supreme(Online)(Kar) 27671.

When the Roles Shift: Revision Petitions

The question of who is the respondent changes dramatically if the initial order under Section 156(3) is challenged. If the Magistrate passes an order directing an investigation, that order is considered final for that stage of the proceedings and is amenable to revision under Section 397 of the Cr.P.C. 2017 0 Supreme(Del) 3288.

In such revision proceedings:1. If the Accused challenges the order: The accused becomes the Petitioner/Revisionist, and the Complainant (the original petitioner) and the State become the Respondents.2. If the Complainant challenges the rejection of the order: The Complainant is the Petitioner, and the State/Police, and potentially the accused (depending on the stage), may be respondents.

Conclusion

To summarize, in a fresh petition filed under Section 156(3) Cr.P.C., the police station (the officer-in-charge) or the State is the correct party to name as the respondent. The accused should generally not be named as a respondent at this pre-investigation stage. Including the accused prematurely may not only be legally superfluous but could also invite objections regarding the maintainability of the petition.

Always remember that courts view the misuse of Section 156(3) with scrutiny. Ensuring that you have complied with all procedural prerequisites—approaching the police hierarchy first and supporting your petition with an affidavit—is the most critical step in ensuring your petition is heard on its merits. Because legal procedures can be highly fact-specific and subject to ongoing judicial interpretation, individuals should consult with a qualified advocate to review their specific case facts before filing.