How to Choose Between an FIR and a Private Complaint in India

Vikrant D. Shetty

Aug 18

9 min read

Updated: Oct 21

Two Doors Into the Criminal Justice System

How to Choose Between an FIR and a Private Complaint in India

An FIR under Section 154 of the Code of Criminal Procedure, 1973 (now Section 173 of the Bharatiya Nagarik Suraksha Sanhita, 2023) is the correct route for a cognizable offence, since the police must register it once informed, while a private complaint under Section 200 CrPC before a magistrate suits non-cognizable offences, offences by public servants needing prior sanction, or cases where the police refuse to act. Where the police refuse to register an FIR, a complainant may apply under Section 156(3) CrPC for a magistrate's direction to investigate. This article sets out how each route works.

India's criminal procedure framework also provides an intermediate mechanism: if the police refuse to register an FIR, the aggrieved person can send the substance of the complaint to the Superintendent of Police under Section 154(3) CrPC (Section 173(3) BNSS), who can direct that an FIR be registered if satisfied that a cognizable offence is made out. If this too fails, the complainant can approach the magistrate under Section 156(3) CrPC (Section 175(3) BNSS) to direct the police to investigate and register the FIR. This is an important and frequently used provision.

Knowing when each route applies (FIR, magistrate complaint, or Section 156(3) application) can save a complainant months of misdirected effort.

FIR, Magistrate Complaint, and Section 156(3): the Three Routes

The FIR: cognizable offences and the police's duty to register

An FIR (First Information Report) can only be registered for cognizable offences, that is, offences where the police have the power to arrest without a warrant. Most serious offences, murder, theft, cheating, forgery, criminal breach of trust, kidnapping, rape, and offences under the IPC/Bharatiya Nyaya Sanhita (BNS) that carry more than three years' imprisonment, are cognizable. When a person approaches the police with information about a cognizable offence, the police are obligated under Section 154 CrPC (Section 173 BNSS) to register the FIR. The Supreme Court in Lalita Kumari v. Government of Uttar Pradesh (2013) confirmed that registration of an FIR on receipt of information about a cognizable offence is mandatory, not discretionary, except in cases requiring preliminary inquiry (matrimonial disputes, corruption matters, and a few specified categories).

When police refuse to register: the Section 156(3) application

Police stations sometimes refuse to register FIRs: by claiming the matter is civil, by suggesting it is outside their jurisdiction, or by simply delaying. When the police refuse or fail to register an FIR, the complainant can approach the magistrate under Section 156(3) CrPC (Section 175(3) BNSS) and seek a direction to the police to investigate and register the case. This is not the same as a complaint to the magistrate under Section 200. A Section 156(3) application asks the magistrate to direct police action. Once the magistrate directs investigation, the police must register the FIR and investigate as directed. This route is particularly effective where there is credible evidence of a cognizable offence but the police are unwilling to act.

Private complaint to the magistrate under Section 200

A private complaint is the appropriate route for non-cognizable offences (where police cannot arrest without a warrant) and for cognizable offences where the complainant prefers not to go through the police. The complainant files a written complaint before the magistrate. The magistrate examines the complainant and their witnesses on oath, and if satisfied that there are sufficient grounds to proceed, either issues a summons (for summons cases) or a warrant (for warrant cases) to the accused, or directs the police to investigate under Section 156(3). Private complaints are common for cheque dishonour cases (Section 138 NI Act), defamation (Section 499/500 IPC, now Sections 356/357 BNS), and cases where the accused is politically connected and police action is unlikely.

Can Police Investigate a Non-Cognizable Offence Without a Magistrate's Order?

For non-cognizable offences, the police can only investigate with the magistrate's order. A person reporting a non-cognizable offence to the police gets a Non-Cognizable Report (NCR), not an FIR. The police do not investigate NCR cases without a magistrate's direction. For such offences, the private complaint route before the magistrate is the primary mechanism. After the complaint is filed and the magistrate is satisfied there is sufficient basis to proceed, the court issues process to the accused and the matter proceeds as a criminal case.

Does Prosecuting a Public Servant Require Prior Sanction?

For certain offences committed by public servants in discharge of their official duties, prior sanction from the competent authority is required before prosecution can be initiated, under Section 197 CrPC (Section 218 BNSS) and under specific statutes like the Prevention of Corruption Act, 1988. Without prior sanction, even a valid complaint cannot proceed to prosecution. The sanction requirement is a protection for public servants against frivolous prosecution, but it is also a procedural barrier that can significantly delay criminal proceedings against government officials. Legal advice on whether to first pursue the sanction route or simultaneously file the complaint is important in these situations.

Choose the Route Before You Start

The choice between filing an FIR, a Section 156(3) application, or a private complaint depends on the nature of the offence, the willingness of the police to act, and the specific circumstances of the dispute. There is no universal correct answer. What matters is understanding the procedural consequences of each route before taking the first step.

Once a criminal complaint is filed, or an FIR is registered, the process moves at its own pace and is not easily reversed. Complainants who file casually or without advice sometimes find themselves managing a protracted proceeding they did not fully anticipate. Equally, complainants who delay because they do not know their options may lose evidence or miss limitation periods. A considered decision at the outset beats an impulsive filing every time.

Frequently Asked Questions

When must the police register an FIR?

Police must register a First Information Report under Section 154 of the Code of Criminal Procedure, 1973, now Section 173 of the Bharatiya Nagarik Suraksha Sanhita, 2023, whenever the information received discloses a cognizable offence. The Supreme Court in Lalita Kumari v. Government of Uttar Pradesh (2013) confirmed this duty is mandatory rather than discretionary, apart from a few categories such as matrimonial disputes requiring preliminary inquiry first.

What can a complainant do if the police refuse to register an FIR?

A complainant whose FIR is refused can first send the substance of the complaint to the Superintendent of Police under Section 154(3) of the Code of Criminal Procedure, who may direct registration. If that step fails, the complainant can apply to a magistrate under Section 156(3) of the Code of Criminal Procedure, now Section 175(3) of the Bharatiya Nagarik Suraksha Sanhita, for a direction compelling the police to investigate.

What is the difference between a cognizable and a non-cognizable offence?

A cognizable offence allows the police to arrest without a warrant and investigate on their own initiative, which is what triggers the mandatory duty to register an FIR. A non-cognizable offence does not permit arrest without a warrant, and the police can investigate it only after a magistrate specifically orders them to, which is why a private complaint is usually the primary route for such offences.

When should a person file a private complaint instead of an FIR?

A private complaint under Section 200 of the Code of Criminal Procedure suits non-cognizable offences, cases where the complainant prefers not to involve the police, cheque dishonour matters under Section 138 of the Negotiable Instruments Act, and defamation under Sections 499 and 500 of the Indian Penal Code, now Sections 356 and 357 of the Bharatiya Nyaya Sanhita, particularly where the accused is politically connected.

What happens after a private complaint is filed before a magistrate?

The magistrate examines the complainant and any witnesses on oath, and if satisfied that sufficient grounds exist to proceed, either issues a summons or a warrant directly to the accused, depending on whether it is a summons case or a warrant case, or instead directs the police to investigate the matter under Section 156(3) of the Code of Criminal Procedure before deciding how to proceed further.

What is a Non-Cognizable Report and how does it differ from an FIR?

A Non-Cognizable Report, or NCR, is what the police record when a person reports a non-cognizable offence, and unlike an FIR it does not by itself trigger a police investigation. The police can investigate an NCR only once a magistrate specifically directs them to do so, which is why the private complaint route before the magistrate remains the primary mechanism for pursuing non-cognizable offences.

What is the consequence of prosecuting a public servant without first obtaining the required sanction?

Prosecuting a public servant for an official act without first obtaining sanction under Section 197 of the Code of Criminal Procedure, now Section 218 of the Bharatiya Nagarik Suraksha Sanhita, renders the prosecution liable to be quashed at a preliminary stage, regardless of how strong the underlying complaint is. This makes the sanction question a threshold issue a complainant should resolve, or at least assess, before filing a complaint against a government official.

What is a Section 156(3) application and how does it differ from a private complaint?

A Section 156(3) application asks the magistrate to direct the police to investigate and register a case, and is not the same as a complaint under Section 200 that goes directly to the magistrate for examination on oath. It is used specifically where police have refused or failed to register an FIR despite credible evidence of a cognizable offence, forcing police action rather than substituting for it.

Does the renaming of the CrPC to the BNSS change how FIRs are registered?

The Bharatiya Nagarik Suraksha Sanhita, 2023 replaces the Code of Criminal Procedure, 1973 for offences after its commencement, and Section 173 BNSS largely mirrors the mandatory registration duty earlier found in Section 154 of the CrPC. The substantive obligation to register an FIR for a cognizable offence continues under the new framework, though the section numbers have changed and practitioners should cite the provision that applies to the date of the offence.

Are there situations where police can conduct a preliminary inquiry before registering an FIR?

Yes. The Supreme Court in Lalita Kumari v. Government of Uttar Pradesh (2013) recognised limited categories, including matrimonial and family disputes, commercial offences, medical negligence cases, and corruption matters, where a preliminary inquiry may precede registration to ascertain whether a cognizable offence is disclosed. The inquiry must be completed within a reasonably short period, and if it discloses a cognizable offence, registration of the FIR is still mandatory.

Can a cheque dishonour case under Section 138 of the Negotiable Instruments Act be reported through an FIR?

No. A cheque dishonour offence under Section 138 of the Negotiable Instruments Act, 1881 is not investigated through a police FIR. The complainant must file a private complaint under Section 200 of the Code of Criminal Procedure before the magistrate having jurisdiction, generally within one month of the cause of action arising, subject to the magistrate's discretion to condone delay.

What happens if a private complaint is filed for a cognizable offence instead of going to the police?

A complainant may choose to file a private complaint under Section 200 of the Code of Criminal Procedure even for a cognizable offence, particularly where police action is unlikely or undesirable. The magistrate may still direct the police to investigate under Section 156(3), or may proceed to examine the complainant and witnesses directly and issue process, so choosing the private complaint route does not foreclose police investigation entirely.

Is there a time limit for filing a private complaint or an FIR?

Ordinarily, no fixed limitation period governs the registration of an FIR for a cognizable offence, though unexplained delay in reporting can affect the credibility of the allegation at trial. Certain private complaints, such as those under Section 138 of the Negotiable Instruments Act, 1881, do carry a specific limitation period, so the applicable timeline should always be checked against the particular offence alleged.

Can a complainant withdraw an FIR or private complaint once it has been filed?

An FIR itself cannot simply be withdrawn once registered, since the investigation proceeds independently of the complainant's wishes, though the complainant's subsequent conduct, including a compromise, can be placed before the investigating officer or the court. A private complaint under Section 200 of the Code of Criminal Procedure can generally be withdrawn before the magistrate takes cognizance, and in compoundable offences, a compromise recorded before the court can lead to closure of the case.