The Duty of Police Officer to Lodge an FIR under the New Law

ABSTRACT

Analysing Investigative Procedures, Evidentiary Value, and Recent Judicial Perspectives in the BNSS Era

This article explores the significant procedural transition from the Code of Criminal Procedure (CrPC), 1973, to the Bharatiya Nagrik Suraksha Sanhita (BNSS), 2023. It specifically examines the classification of offences into cognizable and non-cognizable categories and analyzes the modernization of the First Information Report (FIR) mechanism. Also discusses Section 173 of the BNSS (formerly Section 154 of the CrPC), which introduces e-FIRs plus the “Zero FIR” concept to resolve jurisdictional hurdles. Furthermore, the article evaluates the legislative departure from the mandate in Lalita Kumari v. State of UP through the introduction of preliminary inquiries for mid-level offences—a development recently addressed in Imran Pratapgarhi v. State of Gujarat (2025). Finally, the study references the Bharatiya Sakshya Adhiniyam (BSA), 2023, to determine the contemporary evidentiary value of an FIR.

INTRODUCTION-

Classification of Offences under BNSS, 2023

Under the Bharatiya Nagrik Suraksha Sanhita (BNSS), 2023, offences are categorised into two types: Cognizable and Non-Cognizable.

 a) Definitions and Characteristics

• Cognizable Offence: Defined under Section 2(1)(g), it refers to an offence for which a police officer may arrest without a warrant in accordance with the First Schedule or any other law.
• Non-Cognizable Offence: Defined under Section 2(1)(o), it refers to an offence for which a police officer has no authority to arrest without a warrant.

These sections do not define the inherent nature of the crimes but rather specify the police officer’s power to arrest. Generally, cognizable offences are considered more serious (grave), while non-cognizable offences are less serious. To determine the exact status of an offence, one must refer to the First Schedule of the BNSS.

b) Reporting Procedures

The reporting mechanism differs based on the nature of the offence:

• Non-Cognizable Report (NCR): Recorded for non-cognizable offences.
• First Information Report (FIR): Recorded for cognizable offences under Section 173 (formerly Section 154 of the CrPC).

Procedure for Recording an FIR (Section 173)

Section 173 of the BNSS mandates that every piece of information relating to the commission of a cognizable offence must be recorded:

• Oral Information: If given orally to the Officer-in-Charge (SHO) of a police station, it must be reduced to writing, read over to the informant, and signed by them.
• Electronic Communication (e-FIR): When information is given via electronic communication, it shall be taken on record. However, the informant must sign the record within three days before the FIR is officially registered.
• Zero FIR: The BNSS explicitly incorporates the concept of a “Zero FIR,” stating that an FIR must be lodged by the SHO irrespective of whether the offence was committed within their local jurisdiction.

a)Special Provisions for Sensitive Offences

The proviso to Section 173 includes strict protections for victims of specific crimes (primarily those against women and children under the Bharatiya Nyaya Sanhita (BNS), such as Sections 64–71, 74–79, and 124):

1. Female Officers: Information regarding these offences must be recorded by a woman police officer or any woman officer.
2. Disability Protections: If the victim is temporarily or permanently mentally or physically disabled:

1. • The information shall be recorded at the victim’s residence or a place of their convenience.
   • It must be done in the presence of an interpreter or a special educator.
   • The recording of such information must be video graphed.

b)Analysis of Section 173(2) and 173(3) of the BNSS, 2023

Right to a Copy of the Information (Section 173(2))-Under Section 173(2) of the BNSS, once the information regarding the commission of a cognizable offence is recorded, a copy of said information must be provided free of cost to the informant or the victim. This ensures transparency and allows the victim to be aware of the specific details officially on record.

Preliminary Inquiry for Specific Offences (Section 173(3))-Section 173(3) introduces a significant procedural layer. It states that, without prejudice to Section 175 (which pertains to the power of police to investigate), a police officer receiving information about a cognizable offence may proceed in one of two ways for offences punishable with three years or more but less than seven years:

• Preliminary Inquiry: With prior permission from an officer not below the rank of Deputy Superintendent of Police, the investigating officer may conduct a preliminary inquiry to determine if a prima facie case exists. This inquiry must be completed within 14 days.
• Direct Investigation: Alternatively, if the officer is satisfied that a prima facie case already exists, they may proceed directly with the investigation.

Legal Interpretation and Judicial Precedent

The language of Section 173(3) uses the word “may,” indicating that a preliminary inquiry is discretionary, not mandatory. This has led to discussions regarding its alignment with the landmark judgment in Lalita Kumari v. State of UP (2013)[1], which generally mandated the immediate registration of an FIR in cognizable cases.

a)The Imran Pratapgarhi v. State of Gujarat (2025)[2] Perspective

In the recent judgment of Imran Pratapgarhi v. State of Gujarat (2025), a two-judge bench of the Supreme Court (with the judgment delivered by Justice Abhay S. Oka) clarified the application of this section:

• Departure from Lalita Kumari: The court suggested that Section 173(3) represents a structured departure or addition to the Lalita Kumari guidelines. While Lalita Kumari allowed preliminary inquiries only in specific categories (like matrimonial or commercial disputes), the BNSS expands this based on the quantum of punishment (3–7 years).
• Rule of Convenience: This provision acts as a “rule of convenience” grounded in reasonable principles and practicality. Its primary objective is to protect citizens from frivolous or motivated FIRs in mid-level offences, ensuring that the machinery of criminal law is not set in motion without a basic verification of facts.

Jurisdiction for Lodging an FIR: The “Zero FIR” Concept

Under the Bharatiya Nagrik Suraksha Sanhita (BNSS), 2023, the rigid boundaries of “police station jurisdiction” have been relaxed to ensure the prompt registration of crimes.

a) Mandatory Registration (Section 173)

Section 173 of the BNSS explicitly states that information regarding a cognizable offence shall be recorded “irrespective of the area where the offence is committed.” This means an Officer-in-Charge (SHO) is legally duty-bound to record an FIR even if the crime occurred outside the territorial limits of their police station.

b) The Procedure for a “Zero FIR”

When an FIR is lodged at a station that does not have the jurisdiction to investigate the matter, the following process is followed:

• Zero Numbering: The police officer does not assign a regular annual serial number to the FIR. Instead, it is marked with Serial Number “0” (Zero) in the station’s FIR diary. This is why it is commonly referred to as a Zero FIR.
• Immediate Transfer: Since the officer cannot legally investigate the case, they are required to transfer the recorded information and any collected evidence to the “proper” police station (the one with jurisdiction).
• Regularization: Once the jurisdictional police station receives the Zero FIR, they register it as a regular FIR and assign it a fresh, formal serial number to begin the investigation.

c)Legal and Evidentiary Standing

• Duty to Record: If a police officer refuses to lodge a Zero FIR on the grounds of jurisdiction, they may face disciplinary action or be liable under Section 198 of the BNS (Public servant disobeying law).
• Evidentiary Value: A Zero FIR has the same evidentiary value as a normal FIR. Under the Bharatiya Sakshya Adhiniyam (BSA), 2023, it serves as a prior statement that can be used to corroborate or contradict the informant’s testimony during the trial.

The Legal Nature and Scope of an FIR

a) Defining the FIR

The term “First Information Report” (FIR) is not explicitly defined in the Bharatiya Nagrik Suraksha Sanhita (BNSS), 2023. Legally, it refers to the information recorded under Section 173.

• Not Every Information is an FIR: The “first” information received by the police is not always the formal FIR. To qualify as an FIR, the information must be:
  • Specific: It must disclose the commission of a cognizable offence.
  • Authenticated: It must be reduced to writing and signed by the informant (or verified within three days in the case of an e-FIR).
  • Detailed: While it does not need to be an “encyclopedia” of the crime, it must contain enough detail to set the investigative machinery in motion.

Can an investigation begin before an FIR?

It is a common misconception that an FIR is a mandatory prerequisite for starting an investigation. The BNSS provides flexibility in this regard:

• Section 176 BNSS (Procedure for Investigation): This section states that an investigation may be initiated “upon information received or otherwise.”
• The “Otherwise” Clause: The term “otherwise” includes a police officer’s own knowledge, a “cryptic” telephonic message (which is too vague to be an FIR), or observations at a crime scene.
• Legal Implication: This implies that a police officer is empowered to commence an investigation even before a formal FIR is lodged, especially in urgent cases where evidence might be destroyed or a suspect might flee.

Is an FIR a Privileged or Public Document?

The status of an FIR as a document is governed by the Bharatiya Sakshya Adhiniyam (BSA), 2023:

• Not a Privileged Document: A document is “privileged” if it falls under sections like Section 127 (official communications) or Section 136 (production of documents which another person having possession could refuse to produce) of the BSA. An FIR does not fall into these categories.
• A Public Document: Under Section 74 of the BSA, an FIR is considered a public document because it is a record of the acts of a public officer (the police) in the discharge of their executive duty.

Legal Conclusion: Because it is a public document, the accused has a legal right to obtain a copy of the FIR to prepare their defense, and the police are generally required to upload it to their official website within 24 hours of registration (as per the Youth Bar Association guidelines).

Who Can Lodge an FIR under BNSS?

The Bharatiya Nagrik Suraksha Sanhita (BNSS), 2023, does not prescribe specific criteria or professional qualifications for an informant. Since an FIR is simply the information that sets the criminal law in motion, the legal requirements are focused on the informant’s capacity to communicate rather than their age or status.

a) Capacity of the Informant

The primary requirement is that the person lodging the FIR must be:

• Mentally Capable: They must be able to understand the questions asked by the police officer.
• Expressive: They must be capable of articulating the facts of the alleged offence clearly.

b) Can a Child Lodge an FIR?

Legally, yes. A child can be an informant for an FIR provided they possess sufficient maturity to understand the events they are reporting and can provide rational answers.

Practical Considerations: In practice, however, police officers often hesitate to record an FIR where a child is the sole informant. This is due to several procedural and practical reasons:

• Reliability at Trial: The informant is usually the star witness for the prosecution. Under the Bharatiya Sakshya Adhiniyam (BSA), 2023, a child witness must pass a “competency test” by the judge to ensure they aren’t merely mimicking what they were told (tutoring).
• Corroboration: To ensure a stronger case at the trial stage, police prefer a “grown-up” or an adult informant who can withstand cross-examination and handle the complexities of legal proceedings.
• Guardianship: In cases involving children, police typically look for a parent, guardian, or a responsible adult to act as the informant to ensure the information is verified and legally robust.

Evidentiary Value of an FIR under BSA, 2023

In legal terms, an FIR is a “previous statement” made by an informant. Its evidentiary value is divided into two categories: Substantive Use (in limited exceptions) and Procedural Use (for testing witness credibility).

a) Substantive Evidentiary Value (Relevant Facts)

Although an FIR is usually not substantive evidence, it becomes relevant under specific sections of the Bharatiya Sakshya Adhiniyam (BSA):

• Section 4 (Res Gestae): The FIR can be relevant if it is part of the “same transaction.” If the information is given so soon after the crime that there was no time for fabrication, it may be admissible under this section.
• Section 6, Explanation II (Conduct): The act of an informant going to the police station and the statement made therein constitute “conduct.” The statement is admissible to explain the conduct of the informant.
• Section 19 (Admissions): If the FIR is lodged by the accused, any non-confessional parts of the statement may be used against them as an admission.
• Section 23(2), Proviso (Discovery Statement): If a statement in the FIR leads to the discovery of a fact (e.g., the location of a weapon), that specific portion of the FIR becomes a substantive piece of evidence.
• Section 26 (Dying Declaration): If the informant dies after lodging the FIR and the statement relates to the cause of their death, the FIR becomes substantive evidence as a Dying Declaration.

b)Procedural Evidentiary Value (Corroboration & Contradiction)

The primary use of an FIR during a trial is to test the veracity of the person who lodged it:

• Section 148 (Contradiction): During cross-examination, the defense can use the FIR to contradict the witness’s current testimony. If the witness says something in court that differs from the FIR, their credibility is shaken.
• Section 160 (Corroboration): The prosecution uses the FIR to corroborate (support) the witness’s testimony. It shows that the witness has maintained a consistent story from the very beginning.
• Section 158(3) (Impeaching Credit): The credit of a witness may be impeached by proof of former statements (the FIR) that are inconsistent with any part of their evidence which is liable to be contradicted.
• Sections 162 & 163 (Refreshing Memory): A witness or the police officer who recorded the FIR may refer to the document while testifying in court to refresh their memory of the details provided at the time of the incident.

Consequences of Delay in Lodging an FIR

Under the Bharatiya Nagrik Suraksha Sanhita (BNSS), 2023, the promptness of an FIR remains a benchmark for the reliability of the prosecution’s case. Since the FIR is the first record of the crime, any significant delay can lead to legal scrutiny.

a) The Legal Impact of Unexplained Delay

If there is a substantial delay in lodging the FIR, it often results in the following consequences during the trial:

• Reduced Evidentiary Weight: When the informant or the Investigating Officer (IO) provides testimony, the court may give it less “weightage” if the delay remains unaccounted for.
• Suspicion of Fabrication: An unexplained delay gives rise to the suspicion that the FIR was an “afterthought,” potentially involving the tutoring of witnesses or the deliberate embellishment of facts to falsely implicate the accused.
• Judicial Scrutiny: The court becomes suspicious of the conduct of both the informant and the Investigating officer, often viewing the delay as a window of opportunity for “coloured versions” of the incident to be created.

b) When Conviction is Still Possible

Delay is not a “magic wand” for the defense to get an acquittal. The courts follow these principles:

• Sufficient Explanation: If the delay is explained reasonably (e.g., the informant was unconscious, or the area was cut off by natural disaster), the court will not view the prosecution’s case with suspicion.
• Corroborative Evidence: Even if the delay is not fully explained, if the other evidence (medical reports, forensic data, or reliable eye-witnesses) is strong enough to prove guilt beyond a reasonable doubt, the accused can still be convicted.

c) Special Consideration: Sexual Offences

The judiciary recognises that in certain sensitive cases, immediate reporting is not always possible.

• State of Punjab v. Gurmit Singh (1996)[3]: In this landmark judgment, the Supreme Court held that in cases of rape and sexual assault, a delay in lodging an FIR is often self-explanatory.
• Reasons for Delay: The Court acknowledged that a victim of sexual violence undergoes immense trauma and faces the fear of social stigma, social boycott, and the potential loss of reputation.
• Legal Stance: Therefore, courts are instructed to take a sensitive approach and not dismiss a sexual assault case solely because the victim did not approach the police immediately.

Landmark Judgment: Lalita Kumari v. Govt. of Uttar Pradesh (2014)[4]

The legal journey of this case began when a three-judge bench of the Supreme Court, recognizing the conflicting judicial opinions regarding the mandatory nature of FIR registration, referred the matter to a larger bench.

Ultimately, the landmark judgment was delivered by a five-judge Constitution Bench of the Supreme Court of India. The unanimous judgment was authored and delivered by the then Hon’ble Chief Justice of India, P. Sathasivam.

The Supreme Court held that the registration of an FIR is the first step in the quest for justice. It initiates the investigation and sets the criminal justice machinery in motion.

• Preventing Arbitrariness: If police officers were given the discretion to decide whether or not to record an FIR, it would lead to discrimination and a loss of public faith in the legal system.
• Occurrence Report: Upon recording an FIR, the police must immediately send an “occurrence report” to the Magistrate (under Section 176 BNSS, formerly Section 157 CrPC), ensuring judicial oversight from the very start.

The court clarified that the truthfulness of an FIR is a post-registration issue.

• The Rule: If the information discloses a cognizable offence, the police must register the FIR immediately. They cannot conduct a preliminary inquiry to test the “veracity” (truthfulness) of the information beforehand.
• The Exception: A preliminary inquiry is permitted only if the information does not clearly reveal whether the offence is cognizable. The scope of this inquiry is solely to determine the nature of the offence, not its truthfulness.
• The Court identified specific categories where a preliminary inquiry (now capped at 14 days under Section 173(3) BNSS) is permissible:

1. Matrimonial/family disputes.
2. Commercial offences.
3. Medical negligence cases.
4. Corruption cases (Prevention of Corruption Act).
5. Cases with an abnormal delay in reporting (e.g., over 3 months) without a satisfactory explanation.

This list is illustrative, not exhaustive.

The court clarified the distinction between grounds of arresting and lodging FIR-

• FIR vs. Arrest: The Court rejected the argument that “mandatory FIRs lead to mandatory arrests.” Registration of an FIR is a statutory duty, whereas arrest is a discretionary investigative power. Arrest should only occur if a prima facie case is established.
• Punishment for Non-Registration: Under Section 199(c) of the BNS (formerly 166A IPC), a public servant can be punished for refusing to record information in specific cases (primarily those relating to women). The Court held that this specific punishment does not mean registration is “optional” for other crimes; the word “shall” in Section 173 BNSS makes it mandatory for all cognizable offences.
• Legal Maxims: The Court applied the maxim Expressio unius est exclusio alterius (the express mention of one thing excludes others). Since the law explicitly says “shall” for cognizable offences, it excludes any “may” or discretion.

The Court noted a potential dichotomy:

• Citizen’s Duty: Under Section 33 BNSS (formerly Section 39 CrPC), citizens are legally bound to report certain serious offences or face punishment under Section 211 BNS (formerly Section 176 IPC).
• Police Duty: If the law punishes a citizen for not reporting, it must also mandate the police to record that report. Leaving this to police discretion would create a legal contradiction.
• The Police Act of 1861 (Section 44) suggested that police could record info in a General Diary and conduct an inquiry before an FIR. The Supreme Court held that in a conflict between a pre-constitutional law (1861 Act) and a post-constitutional law (CrPC/BNSS), the post-constitutional law prevails. Thus, the mandatory FIR requirement of the Sanhita overrides the General Diary provisions of the Police Act.

Is it Mandatory to Lodge an FIR?

a) The Statutory Mandate: “Shall” vs. “May”

In practice, police officers are sometimes reluctant to register an FIR to avoid an increase in reported crime statistics within their jurisdiction (which can affect their ACR). This often leads to the unauthorized practice of recording a “complaint” and conducting a preliminary inquiry before deciding whether to register a formal FIR.

However, this practice has been condemned by the courts as it leads to arbitrariness and lawlessness.

• Section 173 of the BNSS (formerly Section 154 of the CrPC) uses the word “shall.” * As established in State of Haryana v. Bhajan Lal (1992)[5], the use of “shall” makes it mandatory for the Officer-in-Charge of a police station to record an FIR once the information discloses the commission of a cognizable offence.

b) Judicial Refinement: Ramesh Kumari v. NCT of Delhi (2006)[6]

The Supreme Court in Ramesh Kumari v. NCT of Delhi reiterated the principles of the Bhajan Lal case and added two critical points regarding the officer’s duty:

• Genuine vs. False Claims: The police officer cannot refuse to lodge an FIR by questioning the genuineness or truthfulness of the information at the entry stage. Whether the information is true or false is a matter for post-registration investigation, not a prerequisite for registration.
• Ambiguity in the Nature of the Offence: If it is not immediately clear whether the information discloses a cognizable or a non-cognizable offence, the officer may conduct a limited preliminary inquiry solely to determine the nature of the offence. If a cognizable offence is found, the FIR must be registered immediately.

c) The BNSS Framework (Section 173(3))

The BNSS, 2023 has now codified a specific middle ground that addresses about “preliminary inquiries.”

• For offences punishable with 3 to 7 years: The police officer now has the statutory discretion (with prior permission from a DSP-rank officer) to conduct a Preliminary Inquiry within 14 days to see if a prima facie case exists.
• For serious offences (above 7 years): The mandate for immediate registration remains absolute, as per the Lalita Kumari and Bhajan Lal precedents.

CONCLUSION

The provisions governing the First Information Report (FIR) under the Bharatiya Nagrik Suraksha Sanhita (BNSS), 2023, have been significantly refined to be more transparent, victim-centric, and balanced. By codifying protections like the Zero FIR and e-FIR, the legislature has prioritized the rights of the victim to immediate legal recourse. Simultaneously, by introducing the statutory mechanism for a Preliminary Inquiry under Section 173(3), the law now provides a vital safeguard for citizens against the initiation of frivolous or malicious prosecutions.

[1] Equivalent citations: AIR 2014 SUPREME COURT 187, 2013 AIR SCW 6386, AIR 2014 SC (CRIMINAL) 66,

[2] Imran Pratapgadhi vs State Of Gujarat on 28 March, 2025

[3] 1996 AIR 1393, 1996 SCC (2) 384, (1996) 1 SCJ 566, AIR 1996 SUPREME COURT 1393,

[4] MANU/SC/1166/2013

[5] 1992 AIR 604, 1990 SCR Supl. (3) 259

[6] AIR 2006 SUPREME COURT 1322