Shivam Jadaun
Introduction
“The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.” - Justice Louis D. Brandeis
The registration of a First Information Report (‘FIR’) is foundational to India’s criminal justice system, initiating formal investigations. Recently, the three new criminal laws - the “Bharatiya Nyaya Sanhita,” the “Bharatiya Nagarik Suraksha Sanhita,” and the “Bharatiya Sakshya Adhiniyam” - have replaced the Indian Penal Code, 1860, the Code of Criminal Procedure, 1973, and the Indian Evidence Act, 1872 respectively, which became effective from July 1, 2024.
The introduction of these laws has sparked disputes regarding various judicial precedents and has brought to light a critical tension between the statutory provisions granting police discretion and the judiciary’s mandate to protect the rights of complainants, raising concerns about ensuring a fair balance in the process.
One significant conflict arises from §173(3) of the BNSS, which is at odds with the Supreme Court’s ruling in Lalita Kumari vs. Government of Uttar Pradesh. This blog explores three critical areas where the conflict between §173(3) BNSS and the Lalita Kumari judgment is likely to cause delays or even denials of justice:
Discretionary Preliminary Inquiry: Under §173(3), police officers can conduct a preliminary inquiry, which may delay FIR registration for up to 14 days. This contrasts directly with Lalita Kumari, where the Court emphasized that FIR registration should be immediate if a cognizable offence is evident, with only limited circumstances allowing for preliminary inquiries.
Conflicting Timelines: The BNSS allows a 14-day period for inquiry, whereas the Supreme Court ruling mandates that any preliminary inquiry must be completed within seven days. This disparity could result in procedural confusion and inconsistent outcomes.
Undermining Judicial Oversight: By granting police officers greater discretion in deciding whether to register an FIR, the BNSS could lead to situations where legitimate complaints are dismissed, delaying or denying justice to victims, as highlighted by the Supreme Court in Lalita Kumari.
The author presents solutions to address this legal tension. Judicial clarification is required to precisely define the scope of §173(3), ensuring it upholds the Court’s mandate. Furthermore, stronger oversight mechanisms are also crucial to ensure that police discretion is exercised in a transparent and judicious manner.
§173(3) the BNSS: A Discretionary Approach
§173(3) of the Bharatiya Nagarik Suraksha Sanhita (‘BNSS’) introduces a significant discretionary element in the handling of cognizable offences punishable by imprisonment for three to seven years. Upon receiving information regarding such an offence, the officer in charge of the police station is empowered to either conduct a preliminary enquiry within fourteen days to determine the existence of a prima facie case or proceed directly with the investigation if such a case is evident. This decision, however, requires prior approval from a senior officer not below the rank of Deputy Superintendent of Police, thereby ensuring an additional layer of oversight.
The rationale behind this discretionary approach appears to be rooted in enhancing efficiency within the criminal justice system. By permitting a preliminary assessment, the law aims to filter out cases that may not justify a full investigation, thereby preventing the system from being overwhelmed by frivolous or baseless complaints. This mechanism seeks to reduce the burden on both the police force and the judiciary, allowing resources to be focused on cases with substantive merit while maintaining a balance between thorough investigation and the prevention of unnecessary legal proceedings.
However, this section contradicts the Supreme Court’s (‘SC’) ruling in Lalita Kumari case, which mandates that FIRs must be registered without delay whenever information discloses a cognizable offence.
Lalita Kumari vs. Government of Uttar Pradesh: The Mandate for Immediate FIR Registration
In this case, Lalita Kumari, a minor, was allegedly kidnapped and sexually assaulted. Her father, Bhola Kamat, approached the local police station to file a complaint. However, the police refused to register an FIR, citing the need for a preliminary investigation to ascertain the veracity of the claims. The refusal led to a writ petition being filed in the SC, under Article 32 of the Indian Constitution, seeking direction from the SC to compel the police to register her complaint.
The SC laid down the following principles:
Mandatory FIR Registration: Under §154 of the Cr.P.C., the registration of an FIR is mandatory if the information discloses the commission of a cognizable offence. No preliminary inquiry is permissible in such cases.
Preliminary Inquiry Conditions: If the information received does not disclose a cognizable offence but suggests the need for an inquiry, a preliminary inquiry may be conducted solely to ascertain whether a cognizable offence is disclosed.
Post-Inquiry Actions: If the preliminary inquiry shows a cognizable offence, the FIR must be registered. If the inquiry closes the complaint, a copy of the closure entry with brief reasons must be given to the informant within one week.
Duty of Police Officers: Police officers cannot avoid their duty to register an FIR if a cognizable offence is disclosed. Action must be taken against officers who fail to register an FIR in such circumstances.
Scope of Preliminary Inquiry: Limited to determining if the information discloses a cognizable offence, not verifying its truth.
Types of Cases for Preliminary Inquiry: Required based on case specifics, including matrimonial disputes, commercial offences, medical negligence, corruption, or delayed prosecution; categories are illustrative.
Time-Bound Inquiry: Must conclude within seven days, with reasons for any delay recorded in the General Diary.
General Diary Documentation: All cognizable offence details and inquiry decisions must be accurately logged in the General Diary.
The Supreme Court’s judgment was aimed at safeguarding the rights of complainants, ensuring that their grievances are promptly addressed without being subjected to unnecessary scrutiny or delays. The Court emphasized that the mandatory registration of FIRs serves as a crucial mechanism for protecting the rule of law and preventing arbitrary action by the police.
The Conflict: Discretion vs. Mandate - Three Key Issues with the Judgment
The divergence between §173(3) BNSS and the Supreme Court’s ruling in Lalita Kumari presents a significant legal and practical dilemma. On one hand, The BNSS provision aims to streamline the process, while the Lalita Kumari ruling protects the right to FIR registration without police discretion.
This conflict raises important questions about the potential consequences for complainants. Firstly, the discretionary power granted under §173(3) BNSS inevitably places complainants at the mercy of the police, who may, for various reasons, decide against registering an FIR even if a cognizable offence is disclosed, leading to situations where legitimate complaints are not pursued, thereby denying justice to the aggrieved parties.
This ‘discretion’ can lead to misuse by the police, potentially fostering corruption and rival parties may attempt to influence the police officer to obtain a favourable outcome in the preliminary inquiry. Similarly, Landmark cases like Bhajan Lal, Ramesh Kumari, Parkash Singh Badal, and Aleque Padamsee, which held that a police officer is duty bound to register an FIR, upon receipt of information disclosing commission of a cognizable offence and the power of preliminary inquiry does not exist under the mandate of §154 of the CrPC.
Secondly, in §173(3) of the BNSS is the inconsistency it creates by allowing discretion for more serious offences (punishable by three to seven years) while requiring immediate FIR registration for less severe offences (punishable by up to two years). It is difficult to comprehend the reasoning behind excluding the power to conduct a preliminary inquiry for cognizable offences punishable by less than three years of imprisonment. This imbalance could lead to confusion and inconsistent application of the law.
Thirdly, the 14-day period for conducting a preliminary inquiry under the BNSS is in direct conflict with the Supreme Court’s ruling in Lalita Kumari, where the Court emphasized that any such inquiry must be completed within seven days. This limit was designed to ensure prompt action and protect the rights of complainants, particularly in cases where immediate registration of an FIR is necessary. Extending the inquiry period to 14 days, even if intended to expedite the process, risks unnecessary delays, especially in serious cases.
Moreover, by allowing a discretionary 14-day window, the BNSS may deter victims from filing FIRs altogether. They could perceive the process as delayed or biased, dissuading them from pursuing legitimate complaints. This undermines the right to timely justice and compromises the effectiveness of the criminal justice system, potentially eroding public trust in the process as accentuated in the Lalita Kumari judgment.
Under the CrPC, if the Station House Officer (‘SHO’) refuses to register the FIR, the complainant can send the complaint to the Superintendent of Police (‘SP’) by registered post, who is then obligated to investigate or ensure an investigation. However, under the BNSS, if the complainant does not receive relief from the SP, they must apply to the Magistrate with an affidavit. The Magistrate can then order an investigation as per §175(3) of the BNSS. This new provision empowers the informant to seek the Magistrate’s direction for an investigation.
While the intention behind §173(3) BNSS may be to enhance the efficiency of the police force, its application could inadvertently undermine the very purpose of the criminal justice system - to provide timely and equitable justice. The reliance on police discretion could lead to inconsistent outcomes, with the registration of FIRs being influenced by subjective assessments rather than objective legal standards.
The Way Forward: Striking a Balance
The challenge, therefore, lies in reconciling these conflicting approaches. One potential solution could involve clarifying the scope and application of §173(3) of the BNSS to ensure that it does not override the SC’s mandate in Lalita Kumari case. This could be achieved through judicial clarification, which could define specific circumstances under which a preliminary enquiry may be appropriate. These circumstances may include - matrimonial or family disputes, commercial offences, cases involving medical negligence, corruption cases, or instances where there has been abnormal delay or laches in initiating criminal prosecution, such as a delay of over three months in reporting the matter without a satisfactory explanation. In such scenarios, the preliminary inquiry would ensure that the police are not overwhelmed by frivolous or baseless complaints while still protecting the rights of genuine complainants.
Additionally, there is a need for robust oversight mechanisms to ensure that the discretion granted to the police under §173(3) BNSS is exercised judiciously and transparently. This could include the establishment of review panels or the requirement of written justifications for decisions not to register an FIR, subject to scrutiny by higher authorities or the judiciary.
The divergence between §173(3) BNSS and the Lalita Kumari ruling undermines the core purpose of filing an FIR, which is to ensure prompt justice for complainants.
Conclusion
While reducing the burden of frivolous complaints or FIRs is a legitimate concern, it cannot come at the cost of denying complainants their right to have their grievances formally acknowledged and investigated. Striking the right balance takes careful thought based on established principles, as well as a commitment to fairness and justice, which are essential to upholding the rule of law. Ultimately, the goal should be to foster a system that upholds the integrity of the criminal justice process, ensuring both efficiency and justice for all.
The author is a fifth-year law student at the Faculty of Law, Jamia Millia Islamia, New Delhi (FOL-JMI).
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