– Kush Taparia, Hanshita Sharma
“The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.” – Justice Louis D. Brandeis
Introduction
The recent ruling of the Supreme Court [“SC”] in Imran Pratapgadhi v. State of Gujarat [“Imran Pratapgadhi”] has once again brought into focus the ambiguity and uncertainty related to the registration of First Information Reports [“FIRs”]in cognizable offences. The judgment has taken a regressive step by diluting the strict mandate in Lalita Kumari v. Govt. of Uttar Pradesh [“Lalita Kumari”].
Although the Court appropriately preserved the essence of Article 19(1)(a), its reasoning took, at best, a controversial turn. The Court cited Section 173(3) of Bharatiya Nagarik Suraksha Sanhita [“BNSS”], which effectively states that the police are empowered with the discretion to conduct a preliminary inquiry to ascertain whether a prima facie case exists before registering the FIR. If no prima facie case is made, the victims can approach a magistrate under Section 173(4) of BNSS.
This reasoning creates a narrow exception softening the stronghold precedent set in Lalita Kumari, which strictly requires the immediate filing of an FIR when an offence is disclosed, with only a minimal exception, i.e., matrimonial disputes, commercial offences, etc., which is left to the discretion of the investigating officer. Further, the refusal to register an FIR attracts Section 166 of the IPC for the police.
This blog aims to critically analyse the SC’s judgment in Imran Pratapgadhi. It discusses how putting the ball back in the police’s court, i.e., allowing police discretion in registering FIRs, might disproportionately hinder access to justice for victims, invite ambiguity in cases related to FIR registration, and ultimately increase the burden on the judiciary.
Background of the Case
In this case, Imran Pratapgadhi, the Appellant, posted a video on his social media account ‘X’ where he recited a poem during the ceremony. The poem was vividly expressive of themes such as unwavering love in the face of injustice and sacrifice. It also carries nonviolence as part of its message.
However, an FIR was filed by the local police of the Jamnagar police station on the complaint of the first informant under Sections 196, 197(1), 299, and 302 of Bhartiya Nyaya Sanhita, 2023 [“BNS”], alleging that the video stoked enmity between different groups, offended religious feelings, and posed a danger to national unity.
The Appellant sought the FIR to be quashed in the Gujarat High Court, claiming no offence was made in the allegations and there was a violation of his right to free speech protected under Article 19(1)(a). The Appellant also attached an affidavit stating that he was not the author of the poem, as it was widely believed to have been written by either Faiz Ahmed Faiz or Habib Jalib. The High Court dismissed the quashing petition, noting that the investigation stage was still in its “nascent phase” following the FIR registration and, therefore, there was an overreach by the judiciary.
The SC, on appeal, overturned the High Court’s decision. The Court ruled that none of the ingredients of the alleged offences were attracted. Additionally, it held that the FIR was registered in a routine, thoughtless manner and constituted an abuse of process as there was no preliminary inquiry or application of mind while registering it, despite most of the offences falling within the sentencing bracket of 3-7 years under the BNSS, which necessitates a cautious assessment before initiating criminal proceedings.
The Court observed that under Section 173(3) of the BNSS, 2023, which replaces Section 154 of the CrPC, a preliminary inquiry is permissible for cognizable offences falling within this sentencing range. Accordingly, the Court concluded that the police ought to have first conducted a preliminary inquiry to determine whether there was a prima facie case prior to registering an FIR.
Discretion or Disservice? The Pitfalls of Preliminary Inquiry
The doctrinal deviation in Imran Pratapgadhi dismantles the constitutional safeguards established in Lalita Kumari. By acknowledging the permissibility of a 14-day preliminary inquiry before the registration of an FIR in cognizable offences punishable between three to seven years, the Court appears to undermine the mandatory directive of the Lalita Kumari case, focusing on the immediate registration of FIRs upon disclosure of the cognizable offences.
Furthermore, Lalita Kumari prescribed a 7-day preliminary inquiry period in certain exceptional cases, such as corruption or marriage. The scope of a preliminary inquiry was not to assess the veracity of the information but merely to determine whether the information reveals any cognizable offences.
Paradoxically, the Court in Imran Pratapgadhi allows immediate registration of FIRs for less serious offences like simple hurt under Section 115 of BNS and introduces delay for more severe ones, creating inconsistency and inverting the logic of proportionality. The Court justified differing from Lalita Kumari because that was decided in the context of the CrPC, while BNSS introduces a nuanced procedural classification and encourages differential handling of offences based on severity of punishment.
In Lalita Kumari, the Court unambiguously interpreted the word “shall” in Section 154 (1) CrPC to emphasise a mandatory obligation, i.e., leaving no space for discretion upon police where the information explicitly discloses a cognizable offence. The objective was to protect the victim’s rights and ensure swift activation of criminal proceedings.
However, endorsing a discretionary inquiry period under the BNSS, as applied in the case of Imran Pratapgadhi, brings up ambiguity in a process that was purposely designed to be immediate and unqualified. The discretion at the stage of FIR registration has historically been misused to shield the powerful and suppress the vulnerable. By legitimising this discretion, it sanctions arbitrary police action and dilutes the accountability of law enforcement. Additionally, the Division bench of Imran Pratapgadhi, by departing from the Constitutional bench judgement of Lalita Kumari, undermines a judicial precedent’s hierarchical value and stability.
In the case of Abhay Nath Dubey v. State of Delhi, the High Court ruled that whenever a cognizable offence is evidently disclosed, the police have no choice but to launch an FIR to determine the true nature of such information and reach conclusions. Therefore, refusing to register an FIR would be a violation of Section 154(1).
Furthermore, in State of Haryana v. Bhajan Lal, the Court discusses how the term ‘information’ in Section 154(1) is not qualified by words like ‘reasonable’ and ‘credible,’ unlike in other provisions such as Section 41(1)(a) or (g) of the CrPC. This is to rule out subjective assessments by the police at the pre-registration stage.
Moreover, the jurisprudence surrounding FIR registration has consistently warned against the dangers of delay. As upheld in the case of Ashok Kumar Todi v. Kishwar Jahan, registration of an FIR is the foundational step of the criminal justice system and helps set the entire machinery in motion.
The case of Thulia Kali v. State of T.N. highlights how a delay in lodging the FIR often results in embellishment, due to which the report not only loses the advantage of spontaneity but also introduces the danger of a coloured version. Likewise, in the State of Andhra Pradesh v. Punati Ramulu, it was observed how refusing to register an FIR on receiving information about the occurrence of a cognizable offence later led to a compromised investigation.
Additionally, it is a common presumption that mandatory registration of FIRs will lead to arbitrary arrests, violating Article 21. However, the registration of an FIR and subsequent arrest are two completely different concepts. FIR registration is just the beginning step and may not necessarily lead to an immediate arrest. There are legal remedies available against arbitrary arrests by law enforcement agencies, such as obtaining anticipatory bail under Section 482 of the BNSS. A remedy likewise does not exist for victims whose cases go unregistered.
Additionally, in the case of Amit Kumar v. Union of India, the SC ruled against officers guilty of not registering an FIR, even after receiving information of a cognizable offence. The conflict between Imran Pratapgadhi and Amit Kumar’s ruling creates a legal grey zone, granting police discretion in one instance while mandating strict compliance in another. Such disparity risks procedural unpredictability.
Empirical data from the National Crime Records Bureau (“NCRB”) adds another layer of concern for the administration of the criminal justice system. According to NCRB, 99% of complaints routed through courts are registered as FIRs. Despite the legal mandate, nearly 60 lakh cases go unregistered every year.
This highlights how giving discretion to police can backfire in the future, and would increase the burden on the judiciary, as more victims would approach the magistrate if their complaints are suppressed. Further non-registration of FIRs would lead to more manipulation in criminal cases and increase incidents of ‘antecedent’ FIRs.
Conclusion
The Supreme Court’s underlying intent in Imran Pratapgadhi appears to stem from a pragmatic concern to forestall the criminal justice system from being clogged with frivolous FIRs, particularly in cases that may not merit prompt police intervention. However, it ends up compromising procedural integrity by extending discretion to the police officers at the very inception of the criminal procedure.
The empirical evidence suggests that giving discretion to police has been problematic in the past, and it will aggravate the issues by undoubtedly raising the burden on the judiciary and hindering the effective advancement of justice.
Furthermore, the concerns about registration of false FIRs violating Article 21 can easily be negated by the fact that registration of an FIR does not equate to arrests. Hence, this narrow exception, which gives back discretion to the police, will end up hurting these victims more than helping them out and will only raise concerns of misuse in the future.
Therefore, simply moving away from the mandate established in Lalita Kumari is not a viable solution. A rational approach would be to interpret Section 173(3) in a manner that remains consistent with the guidelines laid down in Lalita Kumari. It could involve formulating statutory or judicial guidelines that strictly regulate when and how preliminary inquiries may commence under Section 173(3).
These guidelines must be time-bound (ideally, no more than three to five days) and precise. They ought to be immediately subject to judicial oversight, especially in cases where a delay might jeopardise the complainant or even allow tampering with evidence. This would ensure that police are accountable, lessen the possibility of an arbitrary denial of justice, and thus maintain the immediacy of filing an FIR in legitimate cases.
Kush Taparia is a 2nd year B.A. LL.B (Hons.) student from National University of Law, Jodhpur and Hanshita Sharma is a 3rd year B.A. LL.B (Hons.) student from Dr. Ram Manohar Lohiya National University, Lucknow.