Registration of FIR in India: An Overview*
Sheikh Muneer**
Abstract
It is a fact that where there is a man, there is a crime. In other words, crime is an inevitable part of human society.[1] On one hand, it is the right of a person to live freely and without fear. On the other hand, it is the duty of the State to provide an environment free from fear. The State ensures and maintains a fear-free environment through penal and procedural laws. When a cognizable offence[2] is committed, the first stage is to inform the incident to a person who is authorized and duty-bound (by law) to record that information. In India, the documentation of such information as per Section 173[3] BNSS[4] is known as the First Information Report (FIR).
In this article, the author has briefly discussed the procedure for the registration of an FIR and the remedies available in case of its non-registration.
Meaning of FIR
The term FIR is not defined in the BNSS. However, when information related to the commission of a cognizable offence is communicated to an officer in charge of a police station and that information is recorded using the National Crime Records Bureau (NCRB) Integrated Investigation Form-I (IIF-I) titled ‘FIRST INFORMATION REPORT’ (under Section 173 BNSS), it is referred as the First Information Report (FIR).
Registration of FIR under the BNSS and the Constitution of India[5]
Part I
The statutory framework for registering an FIR under the provisions of the BNSS is discussed in this Part.
Section 173(1)[6] of the BNSS
In the event of the commission of a cognizable offence, when a person informs the officer in charge of the police station, it is mandatory[7] for the officer to register the FIR as per the provisions of Section 173(1) of the BNSS. In Lalita Kumari v Government of Uttar Pradesh & Ors,[8] relating to mandatory nature of Section 154(1) of CrPC [Section 173(1) of the BNSS], the Supreme Court of India, inter alia, observed as under:
“Registration of FIR is mandatory under Section 154 of the Code (Section 173 of the BNSS), if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation.”[9]
Section 173(4)[10][11] of the BNSS
– In case, officer in charge of a police station refused to register the FIR, Section 173(4) BNSS provides the remedy that an aggrieved person may send a written application (which discloses the commission of a cognizable offence) to the superintendent of police. On receiving such an application the Superintendent of Police may himself investigate the case or direct an investigation to be made by any police officer subordinate to him.
In A Omkar v Commissioner of Police[12] the High Court of Andra Pradesh observed as under:
“As an Officer superior in rank, while he could exercise the powers of the Officer-in-charge of the Police Station, he could at best act as contemplated under section 154(3) of the Code of Criminal Procedure [Section 173(4) of the BNSS] or as a superior Officer order for the registration of the case at the appropriate Police Station and could subject to the control of the Magistrate as contemplated under the Code either investigate the case himself or entrust the investigation to another Officer.”
– The last words of Section 173(4), ‘[f]ailing which such aggrieved person may make an application to the magistrate,’ will be discussed in the next paragraph of this article.
Section 175(3)[14] read with Section 173(4) of the BNSS
The last words of Section 173(4), ‘[f]ailing which such aggrieved person may make an application to the magistrate,’ provide additional remedy for the aggrieved person to approach judicial magistrate if the issue relating to non-registration of FIR remains unresolved.
If, despite exhausting the remedies discussed in paragraph number 1 and 2 above, the grievance still persists, then the aggrieved person may file an application supported by an affidavit before the Judicial Magistrate under Section 175(3) read with Section 173(4)[15]
The Supreme Court in Babu Venkatesh & Ors v State of Karnataka & Ors,[16] observed that:
“[P]rior to the filing of a petition under section 156(3) CrPC [Section 175(3) of the BNSS], there have to be applications under section 154(1) and 154(3) of the CrPC [Sections 173(1), 173(4) of the BNSS]. This court also emphasizes the necessity to file an affidavit so that the persons making the application should be conscious and not make false affidavit.”[17]
This section [Section 175(3)] grants wide powers under which a judicial magistrate may order the officer in charge of a police station to register the FIR. In this regard, the Supreme Court in Sakiri Vasu v State of UP & Ors[18] made the following observation:
“The Section 156(3) Cr.P.C [Section 175(3) of the BNSS] is wide enough to include all such powers in a Magistrate which are necessary for ensuring a proper investigation, and it includes the power to order registration of an F.I.R.”[19]
Section 223[20] of the BNSS
An aggrieved person may file a complaint[21] before the judicial magistrate and pray for the registration of the complaint case.
However, before proceeding as per Section 227[22], ‘Issue of process,’ the Magistrate may act as per Section 225[23], ‘Postponement of issue of process.’
Section 528[24] of the BNSS
The High Courts have inherent powers under Section 528 of the BNSS to do real and substantial justice in order to meet the ends of justice. In case of non-registration of FIR by the police, the High Court can give direction to the police for the registration of the FIR using its inherent powers under Section 528 of the BNSS.[25]
Generally, approaching the High court directly without exhausting the available remedies does not attract any adverse actions against the applicant, but doing so is considered purely unreasonable. However, the position may differ depending on the facts and circumstances of the case, as held by the Hon’ble High Court of Madras:
“[I]f the complaint reflects commission of murder, dowry death, attempt to murder where the victim sustained grievous injury, robbery, dacoity, rape and attempt to rape and the Station House Officer refuses to register the complaint of such allegation, then the court will have to necessarily give a direction to the Station House Officer to register the case invoking the jurisdiction under section 482 of the Code of Criminal Procedure [Section 528 of the BNSS.]”[26]
Part II
We have discussed the provisions for registration of FIR under BNSS in Part I. Now, this part will discuss the provisions of the Constitution of India under which the High Courts or the Supreme Court may issue orders or directions for the registration of FIR.
Article 226 & Article 32
Article 226 empowers the High Courts, and Article 32 empowers the Supreme Court to issue writ[27] in the nature of mandamus[28] for the registration of FIR.
“Mandamus is one of the prerogative writs issued by the superior Courts (High Courts and Supreme Court), which is in shape of command to the State, its instrumentality or its functionaries to compel them to perform their constitutional/statutory/public duty.”[29]
Although an aggrieved person must approach the High Court or the Supreme Court only after exhausting the remedies as discussed in part I, there is no restriction on the powers of the High Courts or the Supreme Court to entertain such a writ petition. In this regard, the Supreme Court in Sakiri Vasu v State of UP & Ors[30] made the following observation:
“It is true that alternative remedy is not an absolute bar to a writ petition, but it is equally well settled that if there is an alternative remedy the High Courts should not ordinarily interfere.”[31]
Article 142
The Supreme Court exercises its wide discretionary powers under Article 142 of the Constitution. It can pass any order it deems fit based on the facts and circumstances of the case in order to achieve complete justice. In the case of Manohar Lal Sharma v. Principal Secretary & Ors.,[32] it was observed that:
“The Supreme Court has been conferred very wide powers for proper and effective administration of justice. The Court has inherent power and jurisdiction for dealing with any exceptional situation in larger public interest which builds confidence in the rule of law and strengthens democracy.”
Generally, Article 142 is not used as a remedy for seeking directions for the registration of an FIR. However, based on the facts and circumstances of the case, the court may issue such directions to ensure complete justice.
Public Interest Litigation (PIL)
It is the duty of the State to maintain law and order in society. When an offence is committed, the State represents the case on behalf of the victim because a crime is a wrong not only against the individual victim but also against the society at large.[33] A person may file a Public Interest Litigation (PIL) seeking directions for the registration of an FIR as per Supreme Court’s guideline number 05 issued under ‘COMPILATION OF GUIDELINES TO BE FOLLOWED FOR ENTERTAINING LETTERS/PETITIONS RECEIVED IN THIS COURT AS PUBLIC INTEREST LITIGATION.’
“(5) Petitions against police for refusing to register a case, harassment by police and death in police custody.”
In the case of Indian Banks’ Association, Bombay & Ors v Devkala Consultancy Service & Ors,[34] it was observed that:
‘In an appropriate case, where the petitioner might have moved a court in his private interest and for redressal of the personal grievance, the court in furtherance of Public Interest may treat it a necessity to enquire into the state of affairs of the subject of litigation in the interest of justice. Thus, a private interest case can also be treated as public interest case.’[35]
Although a person must approach the High Court or the Supreme Court only after exhausting the remedies as discussed in parts I and II, there is no restriction on the powers of the High Courts or the Supreme Court to entertain such a PIL in extreme and urgent cases, as there are no express limitations.
Conclusion
The BNSS under Section 173(1)[36] provides the exclusive right to the aggrieved person to have an FIR registered. On the other hand, Sections 173(4)[37], 175(3)[38] read with Section 173(4), 223[39], 528[40] of the BNSS and Articles 226, 32 and 142 of the Constitution of India individually provide alternative remedies in cases where the police officer refuses to register the FIR.
A police officer is duty-bound[41] to register an FIR only if the information discloses a cognizable case but if the police officer refuses to register the FIR without reasonable grounds, he may face penal[42] consequences.
“Mistakes are proof that you are trying.”
– Jennifer Lim
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* It is crucial to acknowledge that perfection is myth. This article may have its flaws, but mistakes are proof that we are making a genuine effort to address and analyze the topic. Your insights and critiques are valuable, as they contribute to ongoing improvement.
** B.A., LL.B. (Hons.) (Barkatullah University, Bhopal), LL.M. (National Law Institute University, Bhopal), Diploma in Cyber Law (G.L.C. Mumbai & Asian School of Cyber Law), UGC-NET.
[1] S S Srivastava, Criminology, Penology & Victimology 1 (5th edn, CLA 2017).
[2] Where police have power to investigate the case and arrest without warrant.
[3] [Section 154 The Code of Criminal Procedure, 1973]
[4] Bharatiya Nagarik Suraksha Sanhita, 2023 [The Code of Criminal Procedure, 1973 (CrPC)]
[5] The Constitution of India, 1950.
[6] [Section 154(1) of The Code of Criminal Procedure, 1973]
[7] However, Section 173(3) is an exception to the mandatory nature of Section 173(1). As per Section 173(3) “(3) Without prejudice to the provisions contained in section 175, on receipt of information relating to the commission of any cognizable offence, which is made punishable for three years or more but less than seven years, the officer in-charge of the police station may with the prior permission from an officer not below the rank of Deputy Superintendent of Police, considering the nature and gravity of the offence,— (i) proceed to conduct preliminary enquiry to ascertain whether there exists a prima facie case for proceeding in the matter within a period of fourteen days; or (ii) proceed with investigation when there exists a prima facie case.”
[8] Lalita Kumari v Government of Uttar Pradesh & Ors AIR 2014 SC 187.
[9] ibid, para 111(i). However, the Court, inter alia, also ruled that a preliminary inquiry may be conducted in matrimonial cases, family disputes, commercial offences, medical negligence, corruption cases, delay or laches in reporting, para 111 (vi).
[10] [Section 154(3) of The Code of Criminal Procedure, 1973]
[11] Section 30 of the BNSS [Section 36 of The Code of Criminal Procedure, 1973 ]
As per Section 30, the superior officers of police are allowed to exercise all the powers of officer in charge of police station. In case, the officer in charge of the police station refuses to register FIR, an aggrieved person may approach the superior officers of police such as Inspector General of Police (IGP), Director General of Police (DGP), etc.
In J K Devaiya v State of Coorg, 1956 CriLJ 904 (para no. 16). The Court observed: “When information is conveyed to the police officer superior in rank he must make arrangements to cause the production of the informant before the officer-in-charge of the police station so that the said officer may record the information as required under Section 154, CrPC [Section 173 of the BNSS]. The other course is to record the information himself in cases where he intends to take action on the first information.” See also Kailash Tolani v State of Rajasthan 2024:RJ:JD:31181 para 05
[12] 1996 (4) ALD 907, para 10.
[13] The last words of Section 173(4) ‘failing which such aggrieved person may make an application to the magistrate.’ are inserted by BNSS, 2023
[14] Section 156(3) of The Code of Criminal Procedure, 1973
[15] The last words of Section 173(4) BNSS, 2023 ‘failing which such aggrieved person may make an application to the magistrate.’
[16] [2022] INSC 191. See also Priyanka Srivastava and Anr v State of Uttar Pradesh (2015) 6 SCC 287.
[17] Babu Venkatesh & Ors v State of Karnataka & Ors [2022] INSC 191, para 27.
[18] Sakiri Vasu v State of UP & Ors 2007 SC. See also Hamant Yashwant Dhage v State of Maharashtra & Ors 2016 SC, para 10.
[19] Sakiri Vasu v State of UP & Ors 2007 SC, para 17.
[20] Section 223 BNSS. Examination of complainant. [Section 200 of The Code of Criminal Procedure, 1973]
[21] Section 2(h) “Complaint” means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Sanhita, that some person, whether known or unknown, has committed an offence, but does not include a police report.
Explanation.—A report made by a police officer in a case which discloses, after investigation, the commission of a non-cognizable offence shall be deemed to be a complaint; and the police officer by whom such report is made shall be deemed to be the complainant;
[22] Section 204 of The Code of Criminal Procedure, 1973
[23] Section 202 of The Code of Criminal Procedure, 1973
[24] Section 482 of The Code of Criminal Procedure, 1973
[25] D Prasanna v State & Ors. 2007 CriLJ 233, para 20.
[26] G.Arokiya Marie v Superintendent of Police 2008 Mad HC, para 15.
[27] A formal order issued by a court.
[28] A specific type of writ that commands a public official or authority to carry out a duty they are legally required to perform.
[29] Bare Lal v Deepa 2016 MP HC, para 2.4. See also, para 3.11, 4.2 and 06
[30] Sakiri Vasu (n 18).
[31] ibid, para 28.
[32] 2014 (2) SCC 532, para 53.
[33] R V Kelkar, Criminal Procedure 22 (6th edn, EBC 2018).
[34] [2004] INSC 287.
[35] ibid, page no. 11
[36] Section 154(1) of The Code of Criminal Procedure, 1973
[37] Section 154(3) of The Code of Criminal Procedure, 1973
[38] Section 156(3) of The Code of Criminal Procedure, 1973
[39] Section 200 of The Code of Criminal Procedure, 1973
[40] Section 482 of The Code of Criminal Procedure, 1973
[41] Except under Section 173(3) BNSS and paragraph 111 (vi) of Lalita Kumari v Government of Uttar Pradesh & Ors. For further details, refer to footnotes 08 and 11.
[42] Prosecution for an offence specified under Section 199 BNS (166A IPC) or departmental action or both.
