The Leader of Opposition staged a dharna at Delhi’s Parliament Street Police Station, demanding an FIR over a student’s alleged pellet-gun injuries.
Section 173 of the BNSS generally requires police to register an FIR when information discloses a cognisable offence, subject to limited exceptions.
If police refuse, the complainant can approach the Superintendent of Police and subsequently the Magistrate under the BNSS.
Leader of Opposition Rahul Gandhi staged a dharna outside the office of the Deputy Commissioner of Police at Parliament Street Police Station on Friday, after a student allegedly injured by pellet gun fire during the July 20 protest at Jantar Mantar sought registration of an FIR.
The Congress alleged that Delhi Police had initially refused to register the case despite the student submitting a written complaint. Delhi Police later registered an FIR after Rahul Gandhi accompanied the student to Parliament Street Police Station and demanded action.
The Congress and the Cockroach Janata Party (CJP) have alleged that protesters were injured by pellet guns during the protest. A five-member panel appointed by the Supreme Court is examining allegations of police excesses.
What Is An FIR And When Is It Mandatory?
A First Information Report, or FIR, is the formal record prepared by police when information is received about the commission of a cognisable offence. It sets the criminal investigation process in motion.
Under Section 173 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, information relating to the commission of a cognisable offence may be given orally or through electronic communication, irrespective of the area where the offence was committed. If given orally, it must be reduced to writing, read over to the informant and signed by the person giving it. Information given electronically must be signed within three days.
Section 173(2) provides that a copy of the information recorded must be given to the informant free of cost.
The principle of mandatory FIR registration was established by the Supreme Court in Lalita Kumari v Government of Uttar Pradesh. The ruling held that registration of an FIR is mandatory when information discloses a cognisable offence, subject to limited circumstances in which a preliminary inquiry may be permissible.
Can Police Refuse To Register An FIR?
Where information discloses a cognisable offence, FIR registration is generally mandatory. However, Section 173(3) of the BNSS provides for a limited preliminary-inquiry mechanism in certain cognisable offences punishable with three years or more but less than seven years. Such an inquiry requires prior permission from an officer not below the rank of Deputy Superintendent of Police.
The purpose of such an inquiry is to determine whether a prima facie case exists. It is not intended to establish the truth of the allegations through a detailed investigation before an FIR is registered.
The distinction between cognisable and non-cognisable offences is therefore important. In cognisable cases, police can investigate without a Magistrate’s order. In non-cognisable cases, police cannot investigate without permission from a Judicial Magistrate.
What Can A Complainant Do If Police Refuse?
Section 173(4) of the BNSS provides a remedy when an officer in charge refuses to record information relating to a cognisable offence. The complainant can send the substance of the information in writing by post to the concerned Superintendent of Police.
If the Superintendent of Police is satisfied that the information discloses a cognisable offence, the SP can investigate the case or direct a subordinate police officer to investigate it.
If the matter remains unresolved, the complainant can approach the Magistrate under the provisions of the BNSS.
An FIR can be based on information provided by the victim, a family member, an eyewitness or another person with knowledge of the alleged cognisable offence. Information may be provided orally, in writing or electronically, subject to the requirements of the law.
The law also provides that an FIR should not be refused merely because the complainant approaches a police station outside the territorial jurisdiction where the offence occurred. Section 173 allows information relating to a cognisable offence to be given irrespective of the area where the offence was committed, after which it can be dealt with by the police station having jurisdiction.
