Introduction
The First Information Report (FIR) is ordinarily the formal starting point of a police investigation into a cognisable offence. Under the present criminal-procedure regime, Section 173 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), the general rule remains that when information received by the police discloses the commission of a cognisable offence, it must be recorded, setting the criminal investigation in motion in accordance with law.
This raises a fundamental legal question: Can a person be investigated, prosecuted, and ultimately convicted when no FIR was registered?
The answer is neither an absolute “yes” nor an “no”. The legal position depends on the nature of the case, how the investigation commenced, whether proceedings originated from a police report or a complaint before a magistrate, and whether the accused suffered prejudice due to procedural irregularity.
The distinction between the “absence of an FIR” and an “illegal investigation without an FIR” is pivotal. An FIR is not substantive evidence of guilt; it is primarily a procedural gateway. Consequently, the absence or defect of an FIR does not automatically erase an otherwise legally sustainable prosecution. Conversely, police cannot bypass mandatory statutory requirements to claim unrestricted power to investigate cognisable offences secretly or indefinitely.
FIR and Investigation: Distinct Legal Concepts
An FIR is the initial formal recording of information regarding a cognisable offence. Investigation, on the other hand, is the actual process of collecting evidence, examining witnesses, inspecting the crime scene, obtaining forensic expert evidence, effecting recoveries, and performing statutory acts necessary to determine whether a case is made out.
The Supreme Court has repeatedly emphasised that an FIR is not substantive evidence of the truth of its contents. Its principal evidentiary function is to corroborate or contradict its maker under Sections 145 and 157 of the Indian Evidence Act, 1872 (now Sections 148 and 160 of the Bharatiya Sakshya Adhiniyam, 2023). It is not an encyclopaedia of the prosecution’s case and need not contain minute details.
Thus, the absence of an FIR cannot be equated with the absence of evidence. A conviction rests on legally admissible evidence produced in court, not merely on the document that initiated the process.
Is FIR Registration Mandatory? The CrPC vs. BNSS Framework
Under the CrPC framework, the Constitution Bench in Lalita Kumari v. Government of Uttar Pradesh (2014) 2 SCC 1 established that where information clearly discloses a cognisable offence, registration of an FIR is mandatory. The police could not postpone registration to verify the truth or credibility of the information—veracity being a matter for post-registration investigation.
The Statutory Shift Under Section 173(3) BNSS
The BNSS introduced a major legislative development through Section 173(3). For offences punishable with imprisonment of three years or more but less than seven years, the officer-in-charge, with prior permission of an officer not below the rank of Deputy Superintendent of Police (Dy. SP) and considering the gravity of the offence, may conduct a preliminary inquiry within 14 days to ascertain whether a prima facie case exists before registering an FIR.
This represents a deliberate statutory departure from the strict mandatory mandate laid down in Lalita Kumari.
Judicial Interpretation: Imran Pratapgadhi v. State Of Gujarat
In Imran Pratapgadhi v. State of Gujarat (2025), the Supreme Court clarified the relationship between Section 173(1) and Section 173(3) of the BNSS.
The Court recognised that Section 173(3) statutorily permits a preliminary inquiry in specified categories of offences despite the information disclosing a cognisable offence. The core object is to determine whether a prima facie case exists to proceed. If established, the FIR must be registered to kickstart the formal investigation; if not, the informant must be informed so they can pursue statutory remedies.
Under the BNSS, “no FIR yet” does not automatically translate to an “illegal investigation”—a properly authorised preliminary inquiry under Section 173(3) is a recognised statutory step.
Investigative Categories And The Legal Effect Of Omission
| Nature Of Proceeding | Legal Position | Effect Of Absence Of FIR | Effect on Trial/Conviction |
|---|---|---|---|
| 1. Complaint Before Magistrate | Criminal proceedings originate from a complaint presented before the magistrate; an FIR is not the foundation of the case. | No FIR is required. | The proceedings may validly continue, and a conviction can be sustained if the prosecution otherwise proves the case beyond reasonable doubt. |
| 2. Preliminary Inquiry Under Section 173(3) BNSS | In specified cognisable offences punishable with three years or more but less than seven years, a preliminary inquiry may be undertaken subject to the statutory conditions and prior permission of the competent officer. | Pre-FIR inquiry is legally permissible within the limited statutory framework. | The inquiry is not, by itself, an illegal investigation. Where a prima facie case is disclosed, the FIR should thereafter be registered and investigation conducted in accordance with law. |
| 3. Procedural Irregularity in Investigation | Police may have failed to register an FIR at the appropriate stage or may have commenced investigative steps contrary to the prescribed procedure. | The omission may constitute a procedural defect or illegality, depending upon the facts. | The court must examine the nature of the defect, prejudice to the accused, and failure of justice. The trial or conviction is not automatically vitiated merely because of an investigative irregularity. |
| 4. Unauthorised Investigation Without FIR | Police conduct what is substantially a full investigation into a cognisable offence without registering an FIR and without invoking a lawful statutory exception. | This may amount to a serious violation of the statutory procedure. | The court must determine whether the violation affected the fairness of the investigation or caused substantial prejudice. If the defect goes to the root of the proceedings or results in failure of justice, appropriate relief may follow. |
| 5. Defective Investigation But Reliable Independent Evidence | Investigation suffers from procedural shortcomings, but the prosecution produces credible and legally admissible evidence independent of the defect. | The defect does not necessarily destroy the evidentiary foundation of the case. | Conviction may still be sustained, provided guilt is proved beyond reasonable doubt and the accused has not suffered prejudice or failure of justice. |
Core Judicial Principle
The Supreme Court has consistently drawn a distinction between an illegality that goes to the root of jurisdiction or causes failure of justice and a mere procedural irregularity or defect in investigation that does not prejudice the accused.
Accordingly, the absence of an FIR is not, by itself, an automatic ground for acquittal. The court must examine why the FIR was absent, whether its absence was legally permissible, what investigative steps were undertaken, whether the accused suffered prejudice, and whether the conviction rests upon independent and legally admissible evidence.
The decisive question is not merely whether an FIR was absent, but whether the absence was lawful, whether the investigation was fair, and whether the accused’s right to a fair trial was prejudiced.
The H.N. Rishbud Doctrine: Defective Investigation and Trial Validity
The locus classicus on this point is H.N. Rishbud v. State of Delhi, AIR 1955 SC 196. The Supreme Court held that an illegality or irregularity in an investigation does not automatically render the subsequent trial or conviction void.
To challenge a conviction based on an investigative defect, the accused must establish that the failure of compliance resulted in a prejudice or a failure of justice. The argument that “there was no proper FIR; therefore, the conviction is automatically void” is legally overbroad.
Defective Investigation Is Not A Substitute For Proof
While a defective investigation does not automatically vitiate a trial, it cannot be used to bypass proof. The prosecution cannot rely on procedural defects to cure a lack of substantive evidence. A conviction cannot be sustained on:
- An unregistered or informal police note;
- Unproved Station Diary / General Diary entries;
- Inadmissible confessions made to police officers; or
- Unproved contents of an unverified FIR.
Complaint Cases vs. Police Reports
A common misconception is that every criminal proceeding requires an FIR. The criminal procedure code (now BNSS) explicitly recognises private complaints filed before a magistrate.
A magistrate may take cognisance directly under the BNSS complaint procedures, examine witnesses, and issue a process without police intervention or FIR registration. In such proceedings, the absence of an FIR is the legal norm, not a defect.
The Constitutional Balance And Right To Fair Investigation
Under Article 21 of the Constitution of India, an accused is guaranteed a fair and transparent procedure. Informal or prolonged police investigations conducted without registering an FIR introduce serious constitutional risks:
- The accused remains unaware of formal allegations;
- Coercive powers (search, seizure, detention) may be exercised without procedural accountability;
- The official date of commencement of investigation becomes blurred; and
- The accused is deprived of timely access to legal remedies like anticipatory bail.
Courts must ensure that while trivial defects do not derail justice, unauthorised pre-FIR investigations do not become a tool for arbitrary state action.
Consolidated Key Judicial Precedents
| Case Citation | Key Judicial Principle |
|---|---|
| H.N. Rishbud v. State of Delhi (AIR 1955 SC 196) | Investigative illegalities do not automatically vitiate a trial; the test of prejudice and failure of justice applies. |
| Dharma Rama Bhagare v. State of Maharashtra ((1973) 1 SCC 537) | FIR is non-substantive evidence; its utility is limited to corroboration and contradiction. |
| State of M.P. v. Dhirendra Kumar ((1997) 1 SCC 93) | Omissions in an FIR must be assessed contextually; an FIR is not meant to be an exhaustive catalogue of facts. |
| Lalita Kumari v. Govt. of U.P. ((2014) 2 SCC 1) | FIR registration is mandatory under CrPC (now BNSS) if a cognisable offence is disclosed; preliminary inquiry was strictly limited. |
| Imran Pratapgadhi v. State of Gujarat (2025) | Section 173(3) BNSS provides a statutory gateway for preliminary enquiries in specified offences (3 to 7 years imprisonment) prior to FIR registration. |
Practical Evaluation Framework For Courts
When a conviction or proceeding is challenged on the ground of a missing or defective FIR, courts apply a sequential 10-step test:
- Origin Check: Determine if the proceeding originated via police information or a magistrate complaint.
- Offence Classification: Ascertain if the allegations disclose a cognisable offence.
- Statutory Applicability: Check whether Section 173(3) BNSS applies based on the sentencing threshold (3–7 years).
- Authorisation: Verify if mandatory Dy. SP-level prior permission was secured for the preliminary inquiry.
- Scope Check: Differentiate whether the police conducted a limited preliminary inquiry or an unrecorded full investigation.
- Registration Timeline: Verify when the FIR was officially recorded in the process.
- Evidentiary Assessment: Identify the substantive evidence relied upon to establish guilt.
- Inadmissible Exclusion: Exclude evidence rendered inadmissible due to statutory bars or procedural illegalities.
- Prejudice Test: Determine if the delay or absence of FIR caused actual prejudice to the defence or led to a failure of justice.
- Standard of Proof: Evaluate if the remaining admissible evidence establishes guilt beyond reasonable doubt.
Conclusion
Under Indian criminal law, an FIR is not mandatory for every conviction, but police cannot freely investigate a serious crime without registering one. While an FIR usually acts as the formal starting point for a police investigation, Section 173(3) of the BNSS now allows police to conduct a limited preliminary inquiry before filing an FIR for offences punishable by 3 to 7 years in prison. Even if the police make a mistake by investigating without a proper FIR, courts will not automatically acquit the accused unless this procedural error unfairly harmed their defence or caused a miscarriage of justice. Ultimately, an FIR is just a procedural starting tool rather than direct proof of guilt, and a conviction always depends on whether solid, legally admissible evidence proves the crime beyond a reasonable doubt.
