The Bhartiya Nagarik Suraksha Sanhita, 2023 (BNSS) replaces the CrPC and introduces significant procedural changes in India’s criminal justice system. One persistent challenge for victims of crime is police refusal to register a First Information Report (FIR), a crucial step to initiate an investigation in cognizable offenses. Fortunately, the law provides remedies to address such inaction. However, recent changes under the BNSS may also present new hurdles.
Understanding the Right to File an FIR
Filing an FIR is fundamental to initiating a criminal investigation. Section 173(4) of the BNSS (corresponding to Section 154(3) CrPC) requires police officers to register an FIR when a cognizable offense is disclosed. The Supreme Court in Lalita Kumari v. Govt. of Uttar Pradesh, (2014) 2 SCC 1, held:
“The registration of an FIR is mandatory under Section 154 CrPC if the information discloses a cognizable offense, and no preliminary inquiry is permissible in such situations.”
The Court also clarified that preliminary inquiries are limited to specific categories, such as matrimonial disputes, medical negligence, or commercial offenses.
Available Remedies When Police Refuse to Register an FIR
1. Approach Higher Police Authorities
Under Section 173(4) BNSS, if the police refuse to register an FIR, the complainant can submit a written complaint to a superior officer, such as the Superintendent of Police (SP) or Commissioner. If satisfied, the superior officer can direct the registration of an FIR or conduct an investigation. This step ensures accountability within the police hierarchy.
2. File a Complaint with the Magistrate
If higher police authorities fail to act, victims can approach the jurisdictional magistrate under Section 175(3) BNSS (equivalent to Section 156(3) CrPC). The magistrate has the authority to:
Direct the police to register an FIR.
Monitor the investigation to ensure impartiality and compliance.
The Supreme Court in Sakiri Vasu v. State of Uttar Pradesh, (2008) 2 SCC 409, emphasized:
“If the police refuse to register an FIR, the magistrate can exercise supervisory authority under Section 156(3), ensuring that justice is not denied.”
3. Petition the High Court
In extreme cases, the complainant can file a writ petition under Article 226 of the Constitution or invoke the High Court’s inherent powers under Section 528 BNSS (corresponding to Section 482 CrPC). High Courts can compel the police to register an FIR or direct further investigation.
Potential Challenges Under the BNSS
1. Pre-Cognizance Hearing for the Accused
Under Section 223 BNSS, the magistrate must provide the accused an opportunity to be heard before taking cognizance of an offense or directing the police to register an FIR.
Challenges:
Delays in Justice: Victims may face prolonged delays due to the additional procedural step of hearing the accused. This is particularly concerning in cases involving urgent action, such as domestic violence or sexual offenses.
Risk of Intimidation: Accused persons, especially those with power or influence, may use this opportunity to intimidate victims or witnesses.
Increased Burden on Victims: Complainants may be required to produce substantial evidence at this preliminary stage without the benefit of a police investigation.
2. Increased Burden on Magistrates
The introduction of pre-cognizance hearings is likely to overburden magistrates, who will now need to evaluate the submissions of both the complainant and the accused before proceeding.
In Priyanka Srivastava v. State of Uttar Pradesh, (2015) 6 SCC 287., the Supreme Court stressed procedural safeguards, requiring complainants to exhaust remedies with higher police authorities before approaching the magistrate under Section 156(3). The additional requirement of hearing the accused could further delay proceedings.
3. Enhanced Police Discretion in Investigation Refusals
Under Section 175(3) BNSS, magistrates must consider the reasons provided by the police for refusing to register an FIR before ordering an investigation. While this aims to ensure transparency, it also grants police officers greater discretion, potentially leading to:
Arbitrary Rejections: Police may misuse this discretion to avoid registering FIRs, especially in politically sensitive or high-profile cases.
Delays in Justice: Magistrates must now examine police justifications before taking further action, prolonging the process.
4. Confusion in Provisions for Public Servants
The interplay between Section 218 BNSS (requiring prior sanction to prosecute public servants) and Section 223 (allowing private complaints) is ambiguous. Victims seeking to hold public officials accountable may face procedural challenges, as prior sanction and pre-cognizance hearings could create delays or contradictions.
Practical Steps to Navigate These Challenges
To effectively address police inaction and overcome procedural obstacles under the BNSS, victims should:
Maintain Detailed Records: Keep written documentation of all interactions with police, including complaint submissions and responses.
Engage Legal Counsel Early: Legal experts can assist in drafting precise complaints, affidavits, and petitions to ensure procedural compliance.
The Bhartiya Nagarik Suraksha Sanhita, 2023 aims to modernize criminal procedure, but its procedural changes, such as pre-cognizance hearings, introduce complexities that could delay justice. Remedies through higher police authorities, magistrates, and High Courts remain robust, but victims must be prepared for potential hurdles.
Disclaimer: This blog is intended for informational purposes only and does not constitute legal advice. Readers are encouraged to consult a qualified legal professional for specific guidance tailored to their unique circumstances.
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