Police Not Taking FIR from the Victim: What to Do and What Are the Legal Remedies? Comprehensive Guide to Your Rights Under the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023

One of the most frustrating experiences for a crime victim is approaching the police to report an offense, only to have their complaint dismissed, delayed, or refused altogether. This unfortunate situation is more common than it should be, and it leaves victims feeling helpless and unprotected by the very system designed to serve them. However, the law provides robust protections and remedies when police refuse to register a First Information Report (FIR). With the implementation of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, which replaced the Code of Criminal Procedure (CrPC), victims now have clear legal pathways to ensure their complaints are heard and acted upon.

Important Note: The registration of an FIR is not a matter of police discretion when a cognizable offense is disclosed. It is a mandatory statutory duty under Section 173 of the BNSS, 2023.

Understanding Your Right to Register an FIR

Before exploring remedies, it is essential to understand what the law says about FIR registration. Under Section 173 of the BNSS, 2023, every police officer in charge of a police station is legally bound to register an FIR when information relating to a cognizable offense is given to them. This duty is mandatory and non-negotiable.

What is a Cognizable Offense?

A cognizable offense is one where the police can arrest without a warrant and can investigate without requiring permission from a magistrate. These include serious crimes such as murder, rape, theft, robbery, kidnapping, assault, and cyber crimes among others.

The Supreme Court of India has repeatedly emphasized that police officers have no discretion in registering an FIR for cognizable offenses. The landmark case of Lalita Kumari v. Government of Uttar Pradesh (2014) established that registration of FIR is mandatory if the information discloses commission of a cognizable offense, and no preliminary inquiry is permissible in such situations.

Common Reasons Police Refuse to Register FIR

Understanding why police refuse to register FIRs can help you prepare better and assert your rights effectively. Common reasons include:

• Jurisdictional Issues: Police may claim the offense occurred outside their jurisdiction

• Civil Dispute Argument: Officers may wrongly characterize criminal matters as civil disputes

• Influence or Pressure: Political or social pressure from the accused party

• Workload Concerns: Reluctance to take on additional cases or investigations

• Lack of Evidence: Incorrectly demanding evidence before registration (which is not required)

• Compromise Suggestion: Pressuring victims to settle matters outside the legal system

• Documentation Issues: Claiming improper documentation or insufficient information

None of these reasons justify refusing to register an FIR if a cognizable offense is disclosed in your complaint.

What to Do When Police Refuse to Register Your FIR

If the police refuse to register your FIR, do not lose hope. The law provides you with several effective remedies. Here is a step-by-step guide:

• Document Everything
  Make detailed notes of your interaction with the police, including the date, time, names and designations of officers you spoke with, and the reasons given for refusal. If possible, have a witness accompany you or record the interaction (where legally permissible).

• Submit Written Complaint
  Prepare a written complaint clearly stating all facts of the cognizable offense. Submit it directly to the Station House Officer (SHO) or Officer In Charge. Keep a copy for yourself and obtain acknowledgment with date and signature.

• Send Complaint by Registered Post
  If the police refuse to accept your written complaint, send it by registered post with acknowledgment due to the concerned police station. This creates documentary evidence that you attempted to file the FIR.

• Approach the Superintendent of Police (SP)
  Under Section 173(3) of BNSS, if the police refuse to register your FIR, you can send your complaint in writing by post to the Superintendent of Police concerned. The SP is then duty-bound to either investigate the matter themselves or direct investigation by a subordinate officer.

• File Complaint Before Magistrate
  This is one of your most powerful remedies. Under Section 223 of BNSS (formerly Section 156(3) of CrPC), you can approach a Judicial Magistrate directly and request that the Magistrate order the police to register an FIR and investigate. The Magistrate has the authority to direct the police to investigate the complaint as if it were a regular FIR.

• File Writ Petition in High Court
  If all other remedies fail, you can file a writ petition under Article 226 of the Constitution of India before the High Court, seeking a direction to the police to register and investigate your FIR. High Courts have consistently held that refusal to register FIR is a violation of fundamental rights.

• Approach State Human Rights Commission
  Refusal to register FIR can also be complained about to the State Human Rights Commission as a violation of your human rights to justice and protection under law.

• Lodge Complaint with Director General of Police (DGP)
  You can escalate the matter to the office of the DGP of your state, particularly if there is systemic non-compliance or misconduct by local police

Critical Legal Point

Remember that under Section 173(1) of BNSS, the police officer is duty-bound to reduce the information to writing if given orally. You are entitled to receive a free copy of this FIR as per Section 173(2) of BNSS. The police cannot charge any fee for providing this copy.

Types of FIR Under BNSS, 2023

The Bharatiya Nagarik Suraksha Sanhita recognizes different types of FIRs based on the nature of the offense, circumstances of reporting, and jurisdictional considerations. Understanding these types can help you navigate the system more effectively:

Regular/Ordinary FIR

This is the standard FIR registered at a police station when a cognizable offense is reported. It is filed under Section 173 of BNSS when information about a cognizable offense reaches a police officer. This initiates the investigation process, and the police are duty-bound to investigate without requiring permission from a magistrate.

Example: A victim reports a theft, assault, or fraud directly to the police station within whose jurisdiction the offense occurred.

Zero FIR

A Zero FIR can be filed at any police station regardless of jurisdiction. This provision allows victims to report cognizable offenses immediately without worrying about territorial jurisdiction. Once registered, the Zero FIR is transferred to the police station having proper jurisdiction for investigation.

Zero FIRs are particularly useful in emergency situations, cases involving women and children, or when the victim is unsure about the exact jurisdiction where the offense occurred.

Example: A woman who has been assaulted can file a Zero FIR at the nearest police station, even if the incident occurred in a different area. The FIR will then be transferred to the appropriate station.

E-FIR (Electronic FIR)

Many states have implemented online FIR registration systems where victims can lodge complaints for certain categories of offenses through official police websites or mobile applications. E-FIRs are typically allowed for non-serious cognizable offenses and help reduce the burden on police stations while providing convenience to citizens.

Once an E-FIR is registered, the complainant usually receives an acknowledgment number and may be called to the police station if further information or verification is required.

Example: Reporting loss of documents, mobile phone theft, or minor property offenses through the state police's online portal.

Preliminary Inquiry Report (Not Strictly an FIR)

As per the Supreme Court's judgment in Lalita Kumari v. State of U.P., in certain exceptional categories of cases, a preliminary inquiry may be conducted before registering an FIR. These categories include:

• Matrimonial disputes or family disputes

• Commercial offenses

• Medical negligence cases

• Corruption cases

• Cases where information is vague or lacks specific details

However, this preliminary inquiry must be time-bound (generally 7-15 days) and should not be used as a tool to avoid registering FIRs.

Cross FIR/Counter FIR

When two parties involved in the same incident each file separate FIRs against each other, these are known as cross FIRs or counter FIRs. This typically occurs in situations where both parties claim to be victims of offenses committed by the other.

Courts have held that police must investigate both FIRs fairly and cannot refuse to register a counter FIR simply because an earlier FIR has been filed. However, if the counter FIR is clearly malicious or retaliatory, appropriate legal action can be taken.

Example: In a dispute between neighbors that turns violent, both parties may file FIRs alleging assault by the other party.

Written Complaint Treated as FIR

Under Section 173 of BNSS, if information about a cognizable offense is given in writing, it shall be treated as an FIR. This means that even if the police refuse to formally register it in their records, your written complaint itself constitutes an FIR if it discloses a cognizable offense.

This provision prevents police from claiming they have not received an FIR when a written complaint has been submitted.

FIR Through Magistrate Direction (Section 223 BNSS)

When police refuse to register an FIR, a victim can approach a Magistrate under Section 223 of BNSS. If the Magistrate is satisfied that a cognizable offense has been disclosed, the Magistrate can direct the police to register and investigate the complaint as an FIR.

This type of FIR registration ensures judicial oversight when police are reluctant or refuse to register complaints.

Dying Declaration FIR

When a victim of a cognizable offense is in a critical condition and gives information about the offense before death, this statement can be recorded as an FIR. Dying declarations are given special evidentiary value in law as they are considered to be made in contemplation of death when a person has no motive to lie.

Such FIRs should ideally be recorded by a Magistrate, but if that is not possible, they can be recorded by a police officer or medical professional.

Important Rights You Should Know

Your Legal Rights Regarding FIR:

• Right to free copy of FIR immediately after registration (Section 173(2) BNSS)

• Right to add information to the FIR if remembered later

• Right to know the status of investigation

• Right to be informed when investigation is completed

• Right to legal representation throughout the process

• Right to approach higher authorities if dissatisfied with police action

• Right to protection if you are a threatened witness or victim

Consequences for Police Officers Who Refuse to Register FIR

Police officers who refuse to register an FIR when legally required to do so can face serious consequences:

• Departmental Action: Disciplinary proceedings can be initiated against the erring officer

• Contempt Proceedings: If a court has directed FIR registration and police refuse, contempt of court proceedings can be initiated

• Criminal Liability: Under Section 166 of the Bharatiya Nyaya Sanhita (BNS), a public servant who refuses to perform a duty imposed by law can face imprisonment up to one year

• Civil Liability: Victims can claim compensation for violation of their fundamental rights

• Complaint to Police Accountability Mechanisms: Various oversight bodies can take action against erring officers

Practical Tips When Filing an FIR

1. Report Promptly: File your FIR as soon as possible after the offense occurs. Delay can weaken your case.

2. Be Specific and Detailed: Provide clear details including date, time, location, sequence of events, and description of accused persons if known.

3. Stick to Facts: Avoid exaggeration or emotional language. Present facts objectively.

4. Mention All Offenses: Ensure all applicable criminal offenses are mentioned in your complaint.

5. Preserve Evidence: If you have any evidence, mention it in the FIR and preserve it carefully.

6. Keep Copies: Always maintain copies of your FIR, acknowledgments, and all related documents.

7. Know the Law: Familiarize yourself with relevant sections of BNSS and applicable penal provisions.

8. Seek Legal Help: Consider consulting a criminal lawyer, especially for serious offenses or complex cases.

9. Follow Up: Regularly follow up on the status of investigation and cooperate with investigating officers.

Illustrative Case Example

Situation: A woman approached a police station to file a complaint about online harassment and cyber stalking. The police officer refused to register the FIR, claiming it was a "minor matter" and that she should "block the person and move on."

Action Taken: The victim sent a written complaint by registered post to the police station and simultaneously filed an application under Section 223 BNSS before the local Magistrate, attaching evidence of the cyber crimes.

Outcome: The Magistrate directed the police to register the FIR immediately and investigate the matter. Subsequently, departmental action was also initiated against the officer who had initially refused to register the complaint.

Lesson: Knowing your legal rights and remedies can make the difference between justice and frustration.

Special Considerations for Cyber Crimes

As a cyber crime lawyer, I must emphasize that cyber offenses often face particular resistance from police due to lack of technical expertise or understanding. However, cyber crimes are cognizable offenses under the Information Technology Act, 2000 and the Bharatiya Nyaya Sanhita, 2023.

For cyber crimes, you have additional options:

• Cyber Crime Reporting Portal: You can report cyber crimes online at www.cybercrime.gov.in

• Cyber Police Stations: Many states have dedicated cyber police stations with trained personnel

• National Cyber Crime Helpline: Call 1930 for immediate assistance with cyber crimes

• Preservation of Electronic Evidence: Ensure you preserve digital evidence such as screenshots, emails, chat logs, and transaction records before reporting

Conclusion

The refusal of police to register an FIR is not the end of the road for justice. The law provides multiple remedies and avenues to ensure that your complaint is heard and investigated. The BNSS, 2023 has strengthened victim rights and made the process more accessible.

Remember, registration of an FIR for cognizable offenses is not a favor by the police—it is your legal right and their mandatory duty. Do not be discouraged by initial refusals. Assert your rights, follow the legal procedures outlined in this article, and seek professional legal assistance when necessary.

Justice may sometimes require persistence, but the legal framework is designed to protect you and ensure accountability.

DISCLAIMER: This blog is intended for general informational and educational purposes only and does not constitute legal advice. Laws and procedures may vary by state and circumstances. For specific legal guidance regarding your particular situation, please consult a qualified criminal lawyer. The author and publisher assume no liability for actions taken based on information contained in this article.

Need Legal Assistance?

If you are facing difficulties in getting an FIR registered or need representation in criminal or cyber crime matters, consult a qualified criminal lawyer immediately.    Email : prashant.mali@cyberlawconsulting.com 

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