Can Police Refuse to Register Your FIR?

The case began with a father's written report. According to the judgment, Lalita Kumari was a minor, and her father, Bhola Kamat, filed the petition on her behalf. He sought a writ of habeas corpus, or directions of a similar nature, to protect his daughter, who he said had been kidnapped.

On May 11, 2008, he submitted a written report to the officer in charge of the police station concerned. His grievance was that the officer took no action on it. Only when he moved the Superintendent of Police was an FIR registered. According to the petitioner, even after that, no steps were taken to apprehend the accused or to recover the girl. Those are his allegations as recorded in the judgment, not findings the Court made.

This did not climb the usual ladder from Trial Court to High Court. The father came straight to the Supreme Court under Article 32 of the Constitution. A two-judge Bench noticed that police registered FIRs inconsistently across the country. It issued notice to the Union, the Chief Secretaries of all States and Union Territories, and the police heads. If FIRs were not registered immediately and copies not handed to complainants, the Bench said, complainants could move Magistrates for directions. Contempt proceedings were to follow against delinquent officers who showed no sufficient cause.

The States did not simply accept this. At the hearing, the arguments for allowing police to pause before registering came in three main forms:

• Doubt about credibility. Counsel for Maharashtra argued that if the station house officer doubted the correctness of the information, he should be able to hold a preliminary inquiry first. Only then, if satisfied there was a prima facie case, would he register the FIR.
• Article 21. The same counsel argued that registering an FIR "without any scrutiny whatsoever" was contrary to Article 21 and exposed innocent people to malicious prosecution.
• Police rules and manuals. The Additional Solicitor General appearing for Chhattisgarh brought to the Court's notice various police rules prevailing in Punjab, Rajasthan, U.P., Madhya Pradesh, Kolkata, Bombay and elsewhere, which provide for an inquiry before registering an FIR. He also tried to draw an inference from the CBI Crime Manual to argue that a preliminary inquiry before registering a case is permissible.

Because of the conflicting decisions on the point, the two-judge Bench referred the question to a larger Bench by its order of 16.09.2008. A three-judge Bench then examined the conflicting decisions in 2012 and asked for a Constitution Bench of at least five Judges.

Section 154(1) CrPC says every information about a cognizable offence, if given orally, shall be reduced to writing, read over, signed and entered in a book kept by the officer. The fight was over what happens before that entry.

One line of Supreme Court decisions called the provision mandatory. It included State of Haryana v. Bhajan Lal, Ramesh Kumari v. State (NCT of Delhi), Parkash Singh Badal v. State of Punjab and Aleque Padamsee v. Union of India. Another line, including P. Sirajuddin v. State of Madras, Sevi v. State of Tamil Nadu, Shashikant v. CBI and Rajinder Singh Katoch v. Chandigarh Administration, spoke of a preliminary inquiry where the officer had doubts. Maharashtra's counsel even argued that Bhajan Lal and its companions needed reconsideration.

Two more arguments added to the confusion. The first came from Section 166A of the Indian Penal Code, inserted in 2013. It punishes a public servant who fails to record information about certain listed offences, such as those under Sections 326A, 354 and 376. Counsel argued that the legislature must therefore have left police discretion for every other cognizable offence.

The second argument was about records. Some counsel said the information should first go into the General Diary kept at the police station, with the FIR following only after an inquiry. That diary is kept under Section 44 of the Police Act, 1861 or a State's own police law or manual, not under the CrPC. The Court had to decide which record counts, and what happens when the two laws conflict.

The Bench began with the plain words of the section. It held that the language of Section 154(1) is unambiguous, so it must be read literally, and "shall" carries its ordinary mandatory meaning. The core holding, in paragraph 111(i):

The Court noted that the legislature wrote only "information" in Section 154(1). It did not write "reasonable complaint" or "credible information", the words used in Section 41(1)(a) and (g) for arrest without warrant. So the officer cannot refuse because he is not satisfied with the credibility of what he is told. The Court closed two loopholes:

• The "verify first" route. Police cannot hold back registration to test whether the information is genuine, credible or falsely given. Those questions are for the investigation, and if the information proves false, the complainant can be prosecuted for filing a false FIR.
• The General Diary and manual route. The FIR must be recorded in the FIR Book with a unique annual number. A General Diary entry is not a substitute. Where the Police Act conflicts with the CrPC, Section 154 prevails under Article 254(1), and the CBI Crime Manual, being only administrative orders, cannot supersede the Code.

The Court also rejected the Section 166A argument. That section was inserted to give women enhanced safeguards, and it cannot be read to give police discretion over other cognizable offences.

On Article 21, the Court held that registration followed by investigation under the Code is the "procedure established by law". It also separated registration from arrest. Registering an FIR does not require arrest, and the accused can seek anticipatory bail under Section 438. Police may close a matter before investigation under Section 157 if there is no sufficient ground, or after investigation by a final report under Section 173.

The Court also took note of the scale of the problem, citing NCRB figures of about 60 lakh cognizable offences registered in India in 2012. It observed that the number of FIRs not registered is approximately equivalent to the number registered.

• Know what the officer must do with your information. If you gave the information orally, Section 154(1) requires the officer to reduce it to writing, read it over to you, and get your signature. Under Section 154(2), you are entitled to a copy of the information as recorded, free of cost and forthwith.
• Check the FIR Book, not just the diary. The FIR must be entered in the FIR Book with a unique annual number. The judgment says a General Diary entry does not fulfil Section 154. It also directs that every piece of information about a cognizable offence, whether it leads to an FIR or to an inquiry, must be reflected in the General Diary, along with the decision to hold a preliminary inquiry.
• Know where to go if the station refuses. Under Section 154(3), you can send the substance of your information in writing, by post, to the Superintendent of Police. If he is satisfied that it discloses a cognizable offence, he must investigate himself or direct a subordinate officer to do so. The judgment also notes the Magistrate route through Section 190 read with Section 200.
• Avoid the biggest mistake. Do not accept "we will verify first" when your information already clearly mentions a cognizable offence, because on those facts the Court said there is no option but to register the FIR forthwith. If police do hold a lawful preliminary inquiry, it should not exceed 7 days, and the delay and its causes must be reflected in the General Diary. The Court also said action must be taken against erring officers who do not register the FIR.