What to do if police refuse to register an FIR in India? Legal remedies under BNSS 2023

What to do if the local police refuse to register an FIR?

Introduction

Whenever a cognizable offence is committed, the first and most immediate step towards seeking justice is to report the incident to the police. It is the obligation of the police to register an FIR whenever information of the commission of a cognizable offence is received. Despite the legal obligation, there were many instances where police refused to register FIR, and in such situations, the victim or his/her family members often feel helpless and uncertain about the remedies available under the law.

This article explains the legal remedies available under the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), and the practical steps that can be taken when the local police refuse to register an FIR.

What is an FIR?

A First Information Report (FIR) is a document prepared by police, in which detailed information about the commission of a cognizable offence, such as murder, rape, kidnapping, robbery, theft, cheating, and etc.

The report to the police regarding the commission of any cognizable offence can be made either verbally or in writing. Upon receipt of such information, the first and foremost duty of the police under Section 173 of BNSS, 2023, is to record the same, and this process of recording the information is called registration of an FIR.

Can the police refuse to register an FIR?

As a general rule, the police cannot refuse to register an FIR where the information discloses the commission of a cognizable offence. Section 173(1) of BNSS, 2023, mandates that every information relating to the commission of a cognizable offence, whether given orally or in writing, shall be recorded in the prescribed manner.

But there is an exception. Section 173(3) of the BNSS,2023, states that if the information discloses the commission of an offence punishable with imprisonment for a term of 03 (three) years or more but less than 07 (seven) years, then the officer-in-charge of the police station may, with the prior permission of the Deputy Superintendent of Police (DySP) or an officer of a higher rank, conduct a preliminary enquiry to determine whether there exists a prima facie case for proceeding with the investigation, and such preliminary enquiry is required to be completed within 14 (fourteen) days.

It is important to understand that Section 173(3) of BNSS, 2023 does not provide a blanket power to the police to refuse registration of an FIR. The objective of the preliminary enquiry is only to determine whether the information reveals a prima facie case necessitating investigation, but it cannot be used as a means to indefinitely delay or arbitrarily deny the registration of an FIR where the law mandates one.

What should you do if the police refuse to register the FIR?

1. First, it is necessary to secure the proof that the complaint was indeed submitted before the concerned officer-in-charge of the respective police station. Therefore, at the time of submitting a complaint to a police station, you should obtain a receipt seal or acknowledgement from the concerned police station confirming receipt of the complaint. As a practical approach, it is advisable to obtain the receipt seal on a photocopy of the complaint which is being submitted.

2. In an event where police refuse to register the FIR, the first step is to ascertain the reason for non-registration. If it is due to any missing information or any error, it is advisable to rectify those anomalies and submit the complaint again. But if the reason for non-registration is a jurisdictional issue, then request the officer-in-charge of the police station to register a 'Zero FIR' under Section 173 of BNSS,2023.

3. In the event that, despite all possible efforts, the FIR is not registered, you should approach the Superintendent of Police under Section 173(4) of the BNSS, 2023, and submit a representation detailing the alleged offence. Along with the representation, you should also enclose a copy of the acknowledgement of the complaint that was submitted before the officer-in-charge of the concerned police station. Upon receipt of the representation, the Superintendent of Police may either investigate the offence himself or direct any officer subordinate to him to investigate the same and register the FIR, in exercise of the powers conferred under Section 173(4) of the BNSS, 2023.

4. Despite exhausting all the available remedies, if the grievance still persists, then along with all the relevant documents and proof, you should approach the Judicial Magistrate having the concerned jurisdiction under Section 210 read with Section 223 of the BNSS, 2023. Upon being satisfied that the information discloses the commission of a cognizable offence and that a proper investigation is necessary, the Magistrate may direct the police to investigate the matter in accordance with law. This statutory remedy acts as an important safeguard against arbitrary inaction or refusal on the part of the police to register an FIR.

Important points to remember:

1. Many people believe that the police can freely choose whether or not to register an FIR. This is a misconception. When an information clearly discloses the commission of a cognizable offence, registration is mandatory, subject to the limited categories of cases where a preliminary enquiry might be legally permissible. Refusal to register an FIR does not mean the end of the legal process. The law provides multiple safeguards to ensure that genuine grievances receive adequate judicial consideration.

2. While pursuing the above-mentioned remedies, it is important to preserve every document and piece of evidence connected with the incident, including but not limited to photographs, videos, medical records, CCTV footage, call records and electronic communications, copies of written complaints submitted to the police and etc.

3. Although every person has the right to approach the authorities independently, obtaining legal advice can be invaluable, particularly where the complaint involves complex facts, multiple parties, or legal issues requiring careful presentation. A legal professional can assess whether the allegations disclose the commission of a cognizable offence, prepare a legally sound complaint, advise on the appropriate statutory remedy, and, where necessary, represent the complainant before the competent authorities or the Court. Seeking timely legal assistance can ensure that the complaint is presented effectively and that the available legal remedies are pursued in accordance with the law.

Conclusion

Refusal on the part of the police to register an FIR can undoubtedly be frustrating, but it should never discourage a victim from pursuing the path of justice. Under the Indian legal framework, the police are neither the ultimate authority nor the final forum for redressal of grievances. Our criminal jurisprudence provides multiple statutory remedies to ensure that a genuine complaint does not go unheard merely because the police refused to act. The law, therefore, ensures that access to justice is not defeated by inaction on the part of the police.