When Can Police Refuse to Register an FIR? – BNSS, 2023

Under the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, the registration of a First Information Report (FIR) for a cognizable offense is generally mandatory. However, there are limited and legally defined exceptions where a police officer may refuse to register an FIR.

Preliminary Inquiry for Specific Offences:

Section 173(3) of the BNSS, 2023 allows a police officer to conduct a preliminary inquiry before registering an FIR, but only in a very specific scenario:

• The offense is punishable with 3 years or more but less than 7 years imprisonment.
• The officer must obtain prior written approval from a superior officer, not below the rank of Deputy Superintendent of Police (Dy. SP).
• The inquiry must be completed within 14 days.
• If a prima facie case is found after the inquiry, an FIR must be registered.

It’s crucial to understand that this is a discretionary power, not a mandatory one. It cannot be used to delay or avoid FIR registration for serious offenses like rape, murder, or dacoity.

Complaint Does Not Disclose a Cognizable Offense:

A police officer can refuse to register an FIR if the complaint clearly fails to disclose a cognizable offense. This means the facts presented don’t fit the legal definition of an offense for which the police can arrest without a warrant.

• The refusal must be reasoned and documented.
• The complainant has the right to escalate the matter to the Superintendent of Police (under Section 173(4)) or to a Judicial Magistrate (under Section 175(3)).

Frivolous, Vague, or Malicious Complaints:

While the BNSS doesn’t explicitly use the term “frivolous,” courts have consistently held that complaints that are manifestly false, vague, or maliciously motivated can justify a refusal. However, this determination cannot be arbitrary. It must be based on a preliminary inquiry (if applicable) or a clear, objective analysis of the complaint’s content.

The Lalita Kumari v. Government of Uttar Pradesh (2014) ruling clarified that while lodging an FIR is compulsory for cognizable offenses, a preliminary inquiry is both permissible and crucial in specific matters (e.g., matrimonial, commercial, corruption). This inquiry aims to distinguish genuine complaints from frivolous ones, verifying if a cognizable offense truly exists. Crucially, this pre-FIR assessment must be time-bound and cannot be utilized as a tactic to delay justice.

Non-Cognizable Offenses:

For non-cognizable offenses, FIR registration is not mandatory. Instead, the police must:

• Record the information in a register.
• Refer the complainant to the Magistrate for permission to investigate.
• Refusal to register an FIR for a non-cognizable offense is legally valid unless the police are directed to investigate by the Magistrate.

Section 174 of the Bharatiya Nagarik Suraksha Sanhita, 2023 outlines the procedure for police when they receive information regarding a non-cognizable offense. It explicitly mandates that the police cannot initiate an investigation without an order from a Magistrate.

Grounds That Are NOT Legally Valid for Refusal:

The BNSS explicitly prohibits the refusal of an FIR on the following grounds, as established by judicial precedent and the new law:

Documentation of Refusal of FIR:

When a police officer refuses to register a First Information Report (FIR), they must make an entry in the General Diary (GD) or Station House Diary (SHD). This entry serves as the official record of the complaint received and the action taken.

This record must include:

• The complainant’s details and the nature of their complaint.
• The specific legal ground for the refusal.

Common legal grounds for refusal include:

• The complaint pertains to a non-cognizable offense, which does not legally require an FIR.
• The complaint is manifestly false, fabricated, or frivolous as determined by a preliminary inquiry in certain cases (as per Supreme Court guidelines in Lalita Kumari).

A police officer ensures that a refusal to register an FIR is reasoned and documented by preparing a written record clearly stating the legal and factual basis for the decision, noting the complaint details, the analysis conducted, and any supporting observations, which is then signed and dated in the station’s official records.

Acknowledging the Complainant’s Rights:

Beyond internal documentation, the officer must also provide a written acknowledgment to the complainant. This acknowledgment is crucial because it formally informs the complainant of the refusal and, more importantly, outlines their legal rights. This is a critical step under the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023 to ensure transparency and accountability.

The written acknowledgment should clearly state:

• The grounds for the refusal.
• The complainant’s right to appeal to a superior officer (like the Superintendent of Police) or file a private complaint before a Judicial Magistrate.

Consequences of Illegal Refusal:

Under Section 199(c) of the Bharatiya Nyaya Sanhita (BNS), 2023, a public servant who willfully disobeys the law and refuses to register an FIR for a cognizable offense may face rigorous imprisonment and a fine.

Critical Assessment of Section 173(3) BNSS:

The discretionary space created by Section 173(3) of the Bharatiya Nagarik Suraksha Sanhita, 2023, is carefully circumscribed by judicial precedent.

The cornerstone of this legal framework remains the Supreme Court’s landmark ruling in Lalita Kumari v. Government of Uttar Pradesh [(2014) 2 SCC 1], which held that the registration of an FIR is mandatory when the information provided discloses a cognizable offense. A preliminary inquiry is permissible only in a very limited set of circumstances, primarily to ascertain whether the information actually discloses such an offense.

This fundamental principle continues to guide legal interpretation under the BNSS. Legal experts and anticipated judicial pronouncements suggest that the fourteen-day inquiry under Section 173(3) BNSS cannot dilute the obligation of immediate FIR registration once a cognizable offense is clearly made out.

Similarly, it is expected that where a preliminary inquiry reveals a prima facie case, an FIR must be promptly registered. If a case is not registered, the complainant must be duly informed, ensuring that statutory remedies remain open.

These principles collectively underscore that Section 173(3) BNSS is a narrow exception and cannot be misused by the police to delay justice or evade their statutory duty to register an FIR. Its purpose is to act as a safeguard against frivolous or malicious complaints in specific, mid-range offenses, not to grant broad discretion to refuse registration.

Conclusion:

Under the BNSS, 2023, FIR registration for cognizable offenses is generally mandatory, with limited exceptions. Section 173(3) allows a time-bound preliminary inquiry for offenses punishable with 3-7 years’ imprisonment, requiring prior approval from a superior officer, but cannot be misused to delay serious cases like murder or rape. FIRs may also be refused if the complaint does not disclose a cognizable offense or is manifestly frivolous, vague, or malicious, provided the refusal is reasoned and documented.

Non-cognizable offenses follow Section 174, requiring Magistrate approval before investigation. Refusal on invalid grounds such as lack of jurisdiction, electronic filing, or complainant absence is prohibited. Illegal refusal exposes officers to penalties under Section 199(c) BNS, 2023. Judicial precedents, especially Lalita Kumari v. Government of Uttar Pradesh [(2014) 2 SCC 1], reinforce that preliminary inquiries are narrow exceptions and must not undermine the mandatory registration of FIRs once a cognizable offense is established.