Registration of FIR and the 'necessity' test for Section 156(3) CrPC / 175(3) BNSS

A judgment delivered on 16.01.2025 by a Division Bench of the Supreme Court in Om Prakash Ambadkar [2025 IINSC 139] has garnered attention as it appears to be the first judgment to cursorily look at the set of provisions under the Bharatiya Nagarik Suraksha Sanhita 2023 [BNSS] dealing with powers of courts to direct registration of First Information Reports [FIR].

For the uninitiated, the FIR is the genesis of police investigations in India. It is a formal document created at the start of a case, which is supported to reflect the 'first information' of the commission of a crime that is received by police. Not all crime, mind you, but 'cognizable' crime — that category of crimes which the law empowers the police to start investigating without need of any prior judicial permission. For a list of such crimes, please turn to the Schedules in the Criminal Procedure Code 1973 [Cr.P.C.] or BNSS.

In the silly belief that legal procedures are automatons which just automatically spring into life when the need arises, we think that commission of a crime will automatically result in registration of the FIR. Much like every other legal procedure, registration of an FIR is also a site of exercising power. What amplifies this dynamic is the seismic significance the FIR can have on the life of a person arraigned as an accused in the document. 

For starters, police now has the power to arrest this person. Since many cognizable crimes are also non-bailable, arrest may be accompanied by prolonged detention. Then there are the collateral consequences, such as difficulties in applying for, let alone getting, government jobs or identification. In other words, having an FIR registered against a person can dramatically alter their life for the worse, which places the police officer in a highly sought-after position as the official who wields the power to cause such a transformative change for the worse.    

This is just one perspective. There is the other, equally important perspective, of how the registration of an FIR alters the life of the police officials as well. There is a mountain of work which follows. There are far too few police officials and far too many cases. Adding one more mountain to your existing range is not an enviable choice. Many disputes genuinely do not require the full weight of the state to be brought for the purpose of finding a resolution, which is what a lot of investigations can reduce themselves to anyway. All in all, registration of an FIR is far from an automatic process. 

The problem, however, is that the law on paper refuses to recognise this lived reality. A key contributor to this problem has been the Janus-faced judgment of a Constitution Bench of the Supreme Court in Lalita Kumari (2013) (discussed on the Blog on multiple occasions). This precise issue — whether an FIR must be registered whenever police receive information of a cognizable crime, or do police officials have some discretion in the matter — was heard by the Court, and it gave a lengthy and horribly equivocal judgment. So much so that today, lawyers who argue for mandatory registration of FIRs as well as against mandatory registration of FIRs both turn to Lalita Kumari in support of their positions!  

This schism causes downstream effects. Law recognises that failure to register FIRs can cause prejudice to a victim, and so we had Section 156(3) CrPC, and now Section 175(3) BNSS, which confer powers upon magistrates to direct registration of FIR if the police has failed to act. If the law on paper says that every case where information received suggests a cognizable crime is committed must lead to registration of FIR, it means that the law on paper also says that where the magistrate finds that the police have failed to act upon receiving such information, the magistrate must direct registration of FIR. 

The judgment in Om Prakash hints at such an outcome being quite unpalatable as a judicial approach, and possibly illegal in the wake of the slight modifications to this area of law brought about by the BNSS. In asking magistrates to not pass mechanical orders and apply their mind to the matter, the Supreme Court did not say anything new in Om Prakash. Where it added a little bit of spark is its express invocation of an idea which I would label as the 'necessity' test for ordering police investigations. While it is not a new idea as such [for example, see here], it has been expressed with remarkable clarity this time. Take a look at Paragraph 25:

In fact, the Magistrate ought to direct investigation by the police only where the assistance of the Investigating Agency is necessary and the Court feels that the cause of justice is likely to suffer in the absence of investigation by the police. The Magistrate is not expected to mechanically direct investigation by the police without first examining whether in the facts and circumstances of the case, investigation by the State machinery is actually required or not. If the allegations made in the complaint are simple, where the Court can straightaway proceed to conduct the trial, the Magistrate is expected to record evidence and proceed further in the matter, instead of passing the buck to the Police under Section 156(3) of the Cr.P.C. Ofcourse, if the allegations made in the complaint require complex and complicated investigation which cannot be undertaken without active assistance and expertise of the State machinery, it would only be appropriate for the Magistrate to direct investigation by the police authorities. The Magistrate is, therefore, not supposed to act merely as a Post Office and needs to adopt a judicial approach while considering an application seeking investigation by the Police ['Emphasis Supplied'].

The phrase 'apply judicial mind' is thus transformed into at least one specific concept for magistrates: look at whether a police investigation is really necessary. The thought process of the Court driven by the facts of this case where it felt that an entirely frivolous case had been lodged and the magistrate simply did not apply their mind to the matter and directed police investigation.

But have bad facts made for bad law here? There are at least three serious problems in the Supreme Court advocating for this 'necessity' test. 

• First, the Court seems to have added requirements to the text of both Section 156(3) CrPC and 175(3) BNSS which are otherwise not there. Both laws may require reasoned orders, but to insist upon an inquiry into the necessity of an investigation by police into a case is nowhere required by either statute. 
• Second, in suggesting that FIRs need not be directed by magistrates where it is felt that there is no need for police investigation, the natural consequence is that this is now a ground which the police can itself take to refuse registration of an FIR and tell persons to prosecute their cases on their own. Such a course of action goes against at least the traditional reading of Lalita Kumari which was delivered by a Constitution Bench. It had held that there is no discretion for registering FIRs where a cognizable offence is made out, and identified a limited set of scenarios where police could conduct preliminary inquiries before lodging FIRs, but did not suggest that one test in deciding to proceed or not was that of necessity. Even with the BNSS, which has given statutory backing to this preliminary inquiry concept for a sliver of cases in Section 173(3) — punishable with more than three years but less than seven years — no necessity test has been clearly earmarked. 
• Third, and connected to the second, are the practical problems which arise because of the necessity test which are amplified when it comes to prosecuting private complaints under the BNSS. There is a far more cumbersome legal procedure for prosecuting private complaints, than prosecuting police cases. The Supreme Court conveniently glides over these differences and makes it seem that the two sets of procedures are comparable, which they are evidently not. To force upon a victim one process on the basis of how the police or magistrates consider the complexity of the facts or other factors is, still, arbitrary and allowing for unreasonable classifications to be drawn given no two cases are ever alike.

I must stress upon the second point a bit more before closing this post. The Constitution Bench judgment in Lalita Kumari shows us just how difficult it is to decide the issue of curtailing discretion in registration of FIRs in the style of absolutes. The text of law may require one thing, but the socio-political realities of the country make it evident that registering every information as an FIR will be downright absurd and cast an insurmountable burden upon an already overworked, understaffed, and underpaid system. At the same time, a signal had to be sent to the system that discretion in registering FIRs was the exception given how frequently it was being abused at all levels. The legislature has simply aped the ungainly bargain struck by the Court in Lalita Kumari without trying to improve the legal position in any meaningful way through the BNSS, passing the buck as it were back to Courts to continue struggling with this problem. The batting in favour of a 'necessity' test is reflective of exactly this phenomenon. It will probably be modified by Courts over time, crafted into a more chiseled approach which leaves less room for abuse, and till then all of the litigants will remain guinea pigs.