The First Information Report

And in either case the substance shall be entered in a book kept by that officer in the form the State Government prescribes by rules. That book is the general diary or station diary.

The first proviso, a woman officer. If the information is given by the woman against whom an offence under sections 64 to 71, 74 to 79 or 124 of the Bharatiya Nyaya Sanhita is alleged to have been committed or attempted, it shall be recorded by a woman police officer or any woman officer.

The second proviso, a disabled informant. Where the person against whom such an offence is alleged is temporarily or permanently mentally or physically disabled:

(a) the information shall be recorded by a police officer at the residence of that person or at a convenient place of that person's choice, in the presence of an interpreter or special educator; (b) the recording shall be videographed; and (c) the officer shall get the person's statement recorded by a Magistrate under section 183(6)(a) as soon as possible.

Section 173(2): the free copy

A copy of the information as recorded shall be given forthwith, free of cost, to the informant or the victim.

Two changes from the old Code are in that one line: the copy goes to the victim as well as the informant, and it goes forthwith and free.

Section 173(3): the preliminary enquiry, and this is the big change

Without prejudice to section 175, on receipt of information relating to a cognizable offence punishable for three years or more but less than seven years, the officer in charge may, with the prior permission of an officer not below the rank of Deputy Superintendent of Police, and considering the nature and gravity of the offence, either:

(i) conduct a preliminary enquiry to ascertain whether a prima facie case exists, within fourteen days; or (ii) proceed with investigation where a prima facie case exists.

Read that carefully against Lalita Kumari, because the relationship between the two is the examinable point.

Lalita Kumari held that registration is mandatory where the information discloses a cognizable offence and that no preliminary inquiry is then permissible; an inquiry was allowed only where the information did not disclose a cognizable offence but indicated a need for inquiry, and the Court gave five illustrative categories and a seven day limit.

Section 173(3) is narrower in one way and wider in another. Narrower, because it applies only to a defined band of offences, three years or more but less than seven, and requires the prior permission of a Deputy Superintendent of Police. Wider, because on its face it allows an enquiry even where a cognizable offence is disclosed, provided the offence is in that band. And the period is fourteen days, not the seven Lalita Kumari allowed.

For an offence punishable with less than three years, or with seven years or more, section 173(3) does not apply at all, and Lalita Kumari's rule stands: registration is mandatory.

Section 173(4): what to do if the police refuse

A person aggrieved by a refusal to record the information may:

• send the substance of the information, in writing and by post, to the Superintendent of Police; who,
• if satisfied that it discloses a cognizable offence, shall either investigate the case himself or direct an investigation by a subordinate, who then has all the powers of an officer in charge of a police station in relation to that offence;
• failing which the aggrieved person may make an application to the Magistrate.

The last limb is new in form: the Sanhita spells out that the Magistrate is the next step, and section 175(3) then tells the Magistrate what to do with the application, which is to consider it supported by an affidavit, make such inquiry as he thinks necessary, consider the police officer's submission, and order investigation.

Section 174: non-cognizable cases

Sub-section (1). Where information of a non-cognizable offence committed within the station's limits is given, the officer shall enter its substance in the book kept for the purpose, and shall:

(i) refer the informant to the Magistrate; and (ii) forward the daily diary report of all such cases fortnightly to the Magistrate.

Clause (ii) is new. The Magistrate now sees, once a fortnight, every non-cognizable report the station has received.

Sub-section (2). No police officer shall investigate a non-cognizable case without the order of a Magistrate having power to try the case or commit it for trial.

Sub-section (3). An officer receiving such an order may exercise the same powers of investigation as in a cognizable case, except the power to arrest without warrant.

Sub-section (4), the mixed case. Where a case relates to two or more offences of which at least one is cognizable, the whole case is deemed cognizable, notwithstanding that the others are not.

Sections 175 and 176: the power and the procedure

Section 175(1). Any officer in charge of a police station may, without the order of a Magistrate, investigate any cognizable case which a Court having jurisdiction over the local area would have power to inquire into or try under Chapter XIV. The proviso allows the Superintendent of Police, considering the nature and gravity of the offence, to require the Deputy Superintendent of Police to investigate.

Sub-section (2), the saving. No proceeding of a police officer shall at any stage be called in question on the ground that the case was one which he was not empowered to investigate. This is the provision Rishbud is usually cited with.

Sub-section (3). A Magistrate empowered under section 210 may, after considering an application supported by an affidavit made under section 173(4), after such inquiry as he thinks necessary, and after the police officer's submission, order an investigation.

Sub-section (4), and it is new. On a complaint against a public servant arising in the course of the discharge of his official duties, a Magistrate may order investigation only subject to two things: (a) receiving a report containing the facts and circumstances from the officer superior to him; and (b) consideration of the assertions made by the public servant as to the situation that led to the incident.

Section 176(1), the procedure. Where an officer in charge has reason to suspect the commission of an offence he is empowered to investigate, he shall forthwith send a report to a Magistrate empowered to take cognizance on a police report, and shall proceed in person, or depute a subordinate not below the prescribed rank, to the spot, to investigate the facts and circumstances, and if necessary to take measures for the discovery and arrest of the offender.

The provisos to sub-section (1). (a) Where the information names a person and the case is not of a serious nature, the officer need not proceed in person or depute anybody to the spot. (b) If it appears that there is no sufficient ground for entering on an investigation, he shall not investigate.

The further proviso, rape. In relation to an offence of rape, the recording of the victim's statement shall be conducted at her residence or a place of her choice, and as far as practicable by a woman police officer, in the presence of her parents, guardian, near relatives or a social worker of the locality.

The cases

Lalita Kumari v. Government of Uttar Pradesh, (2014) 2 SCC 1.

Facts. A minor girl was abducted. Her father gave written information at the police station and no case was registered. His approach to the Superintendent of Police produced nothing either. He came to the Supreme Court under article 32, and the Court used the case to settle a question on which its own benches had differed for years.

Held, by a Constitution Bench.

1. Registration under section 154 is mandatory where the information discloses a cognizable offence, and no preliminary inquiry is permissible in such a situation.
2. A preliminary inquiry is permissible only where the information does not disclose a cognizable offence but indicates the necessity for an inquiry, and only to ascertain whether a cognizable offence is disclosed, never to verify the veracity of the information.
3. If the inquiry discloses a cognizable offence, the FIR must be registered. If it ends in closing the complaint, a copy of the closure entry must be supplied to the first informant within one week, with brief reasons.
4. Action must be taken against erring officers who do not register an FIR where a cognizable offence is disclosed.
5. The illustrative categories in which a preliminary inquiry may be made are matrimonial and family disputes, commercial offences, medical negligence, corruption, and cases of abnormal delay, for example over three months without satisfactory explanation.
6. The inquiry must be time bound and in any case not exceed seven days, and all information relating to cognizable offences must be mandatorily and meticulously reflected in the general diary.

Why it matters. It is the leading authority on the opening step of every criminal case. Section 173(3) of the Sanhita has now given a statutory form to the preliminary enquiry, for a defined band of offences, on a Deputy Superintendent's permission, and with a fourteen day limit.

State of Haryana v. Ch. Bhajan Lal, 1992 Supp (1) SCC 335.

Facts. A written complaint alleged that a former Chief Minister of Haryana had acquired assets disproportionate to his known sources of income. An FIR was registered and investigation began. The High Court quashed the FIR, and the State appealed.

Held. An officer in charge who receives information disclosing a cognizable offence has a statutory duty to register a case and to investigate, and a High Court cannot ordinarily interfere at that stage. But the inherent power may be used, sparingly and in the rarest of rare cases, to prevent abuse of the process of the court. The Court gave seven illustrative categories, of which the ones most often quoted are: where the allegations, taken at face value and in their entirety, do not prima facie constitute any offence; where they do not disclose a cognizable offence justifying investigation without a Magistrate's order; where the uncontroverted allegations and the evidence collected disclose no offence; where they are so absurd and inherently improbable that no prudent person could find sufficient ground to proceed; where there is an express legal bar to the institution or continuance of the proceedings; and where the proceeding is manifestly attended with mala fides or maliciously instituted with an ulterior motive.

Why it matters. It is the bridge between the duty to register under section 173 and the inherent power of the High Court under section 528, and it is quoted in almost every application to quash an FIR.

A worked example

Meena's motorcycle is stolen at Ghatkopar. Theft is cognizable.

Where can she report it? At any police station. Section 173(1) applies irrespective of the area where the offence is committed, so a station in Pune must record it and pass it on.

How? Orally, in which case it is reduced to writing, read over to her and signed by her; or by electronic communication, in which case it is taken on record on her signing it within three days.

What must she be given? A copy of the recorded information, forthwith and free of cost, section 173(2).

Is a preliminary enquiry available? Theft of a motorcycle is punishable with up to three years. Section 173(3) applies where the offence is punishable three years or more but less than seven, so it may apply, but only with the prior permission of an officer not below Deputy Superintendent of Police, and the enquiry must be finished within fourteen days.

The station house officer refuses to register. Meena may send the substance in writing by post to the Superintendent of Police, section 173(4). If he is satisfied it discloses a cognizable offence he must investigate himself or direct a subordinate. Failing that, she may apply to the Magistrate, who acts under section 175(3) on an application supported by an affidavit, after such inquiry as he thinks necessary and after hearing the police officer's submission.

Change the offence. She reports a purely non-cognizable offence. The officer enters the substance in the book, refers her to the Magistrate, and forwards the daily diary report fortnightly to the Magistrate, section 174(1). No police investigation without a Magistrate's order, section 174(2), and even then no arrest without warrant, section 174(3).

Change it again. The incident involves one cognizable and one non-cognizable offence. The whole case is deemed cognizable, section 174(4).

Change it once more. The complainant is a woman alleging an offence under section 64 of the Bharatiya Nyaya Sanhita, and she is deaf. The information must be recorded by a woman police officer, at her residence or a place of her choice, in the presence of an interpreter or special educator, must be videographed, and her statement must be got recorded by a Magistrate under section 183(6)(a) as soon as possible.

Distinctions

What this does NOT mean

An FIR is not evidence of the truth of what it says. It is the record of the first information, used mainly to corroborate or contradict the informant.

Registration is not a finding that an offence was committed. It is the start of an investigation.

Section 173(3) is not a general licence to hold back registration. It is confined to a band of offences, needs a senior officer's prior permission, and is capped at fourteen days.

And a refusal to register is not the end of the road. Section 173(4) gives the Superintendent of Police, and then the Magistrate through section 175(3).

Quick revision

• Section 173(1): any information of a cognizable offence, irrespective of the area, orally or by electronic communication; oral information reduced to writing, read over and signed; electronic information taken on record on signature within three days; substance entered in the station book. Woman officer for the listed sexual offences; residence, interpreter, videography and a section 183(6)(a) statement for a disabled informant.
• Section 173(2): a copy forthwith and free to the informant or the victim.
• Section 173(3): preliminary enquiry for offences of three years or more but less than seven, with the prior permission of a Deputy Superintendent of Police, within fourteen days.
• Section 173(4): on refusal, the substance in writing by post to the Superintendent of Police; failing action, an application to the Magistrate.
• Section 174: non-cognizable information entered, informant referred to the Magistrate, fortnightly diary report; no investigation without a Magistrate's order; no arrest without warrant; a mixed case is deemed cognizable.
• Section 175: investigation without a Magistrate's order; the Superintendent may require a Deputy Superintendent to investigate; proceedings not to be questioned for want of power; a Magistrate under section 210 may order investigation on an affidavit-supported application; and, for a public servant, only after a superior officer's report and consideration of the public servant's assertions.
• Section 176: report to the Magistrate forthwith; proceed in person or depute a subordinate; not necessary where the person is named and the case is not serious; no investigation where there is no sufficient ground; a rape victim's statement at her residence or place of choice, as far as practicable by a woman police officer, in the presence of parents, guardian, near relatives or a social worker.
• Lalita Kumari: registration mandatory; inquiry only where no cognizable offence is disclosed; seven days; closure entry to the informant within one week; five illustrative categories.
• Bhajan Lal: duty to register and investigate; the High Court's inherent power sparingly and in the rarest of rare cases; seven illustrative categories for quashing.

Test yourself

1. Can a police station refuse to record information because the offence was committed elsewhere? No. Section 173(1) requires every information relating to a cognizable offence to be recorded irrespective of the area where the offence is committed. That is the zero FIR, now in the statute.

2. What is the position of an FIR sent by email? It is information given by electronic communication under section 173(1)(ii) and is taken on record when signed by the informant within three days.

3. When may the police hold a preliminary enquiry, and for how long? Under section 173(3), where the offence is punishable with three years or more but less than seven, with the prior permission of an officer not below the rank of Deputy Superintendent of Police, and for a period of fourteen days.

4. State the first holding in Lalita Kumari. Registration of an FIR is mandatory under section 154 if the information discloses the commission of a cognizable offence, and no preliminary inquiry is permissible in such a situation.

5. What can a person do if the police will not register his FIR? Send the substance in writing by post to the Superintendent of Police under section 173(4); and if that produces nothing, apply to the Magistrate, who may order investigation under section 175(3) on an application supported by an affidavit.

6. Give any three of the Bhajan Lal categories. Where the allegations taken at face value do not prima facie constitute any offence; where they are so absurd and inherently improbable that no prudent person could reach a just conclusion that there is sufficient ground to proceed; and where there is an express legal bar to the institution or continuance of the proceedings.

7. A case involves one cognizable and two non-cognizable offences. How is it treated? As a cognizable case, notwithstanding that the others are non-cognizable, section 174(4).