Sharnam Agarwal & Yashika Chouksey
Abstract: This article examines the shift in FIR jurisprudence from the mandatory registration framework of Lalita Kumari to the discretionary regime under Section 173(3) of the BNSS. By analyzing empirical data on “burking” and frivolous litigation, the authors argue that the current punishment-based classification is doctrinally inconsistent with Articles 14 and 21. The piece concludes by proposing digital transparency and robust judicial oversight as the primary solutions to balance access to justice with administrative efficiency.”.
Introduction
The framework of the Indian criminal justice system rests upon a single and fundamental threshold: the registration of the First Information Report (“FIR”). This document is essentially a jurisdictional trigger that transforms a private complaint into a public prosecution and activates the state’s coercive machinery of investigation, arrest, and search. For decades, the central tension in procedural law has centred on the struggle for control of access to this gateway. Specifically, the question arises as to who controls the initiation of the criminal law: the citizen who reports a cognizable offence or the police officer who receives that information. This is not simply a procedural question but also a deeply constitutional one that raises issues of equality under Article 14 and personal liberty under Article 21 of the Constitution.
In 2014, the Constitution Bench of the Supreme Court (“SC) in the case of Lalita Kumari v. State of Uttar Pradesh (“Lalita Kumari”) appeared to have laid this debate to rest, holding that police officers must register an FIR if the information received discloses a cognizable offence. While the Court acknowledged limited parameters for preliminary inquiries in certain areas of matrimonial disputes, commercial offences, and medical negligence, it limited these to cases where an inquiry was necessary to ascertain if a cognizable offence was disclosed or not and not for determining the veracity of the information. By making mandatory registration the rule and pre-registration inquiry an exception for limited subject matter areas, the ruling was designed to remove broad discretionary filtering at the threshold of the criminal justice system.
The decision in Lalita Kumari has remained the “North Star” for FIR jurisprudence in India for more than a decade, and the recent observations by CJI Surya Kant and Justice Joymalya Bagchi in Azad Singh Kataria v. Union of India (“Azad Singh Kataria”) mark a massive tectonic shift in the approach of the SC in addressing the balance between personal freedom and protection from frivolous litigation. Nevertheless, the enactment of the Bharatiya Nagarik Suraksha Sanhita (“BNSS”), 2023, which has replaced the Code of Criminal Procedure (CrPC), 1973, has resulted in the codification of Section 173(3), which expands the scope of preliminary inquiries, and this is currently under intense judicial scrutiny in the case of Azad Singh Kataria, in which the SC has indicated a possible shift from the rigid framework of mandatory registration.
During the proceedings in Azad Singh Kataria, oral observations made by a bench led by CJI Surya Kant and Justice Joymalya Bagchi have added a new dimension of “judicial realism” to the debate. The bench observed that the Lalita Kumari mandate has been “abused a lot” to the extent that there has been a proliferation of frivolous FIRs that “disturb the fabric of the country.” Such observations indicate a growing skepticism about “ivory-tower“ judgments that seem oblivious to ground realities.
This analysis does not comment on the merits of the impending challenge but rather explores the broader jurisprudential implications of the shift from the Lalita Kumari framework into the discretionary regime under the BNSS. The thesis of this analysis is that while the requirement of registration was certainly a necessary corrective step in addressing police non-compliance and the “burking” of crimes, the threshold under Section 173(3) of the BNSS risks transforming the narrow exception into a broad discretionary regime. By focusing on the quantum of punishment rather than the nature of the offence, the BNSS reintroduces threshold gatekeeping that arguably is at odds with the guarantees of Articles 14 and 21.
The Constitutional Foundations of Lalita Kumari
The Lalita Kumari ruling marks a watershed moment in which the judiciary attempted to strike a balance between the technical requirements of the CrPC and the dynamic requirements of constitutional morality. Until this ruling, the police had effectively substituted the mandatory requirement of Section 154 of the CrPC with a discretionary filter, often refusing to register FIRs on the basis of a subjective assessment of the “genuineness” or “veracity” of information.
Significantly, the ruling was born out of a desperate need to curb “Police Raj,” wherein police personnel often refused to register FIRs as a means of artificially controlling crime statistics or demanding bribes from gullible victims.
The Constitution Bench fundamentally rejected this practice by relying upon several key pillars of Indian jurisprudence, including a literal and purposive interpretation of the provisions of the CrPC. The Court focused on the word “shall” in Section 154(1) of the CrPC, which provided the basic legal requirement. The Court held it to be mandatory because the statutory language is reinforced by the Code’s rigid sequential structure. By providing the requirement of registration as a non-discretionary prerequisite to the exercise of the powers of investigation and arrest, the legislature has, therefore, indicated the FIR as the foundational trigger for, and not the consequence of, state action. This mandatory requirement provides a vital safeguard for preserving evidence and preventing the manipulation of facts at the very outset of a case. Furthermore, it ensures a uniform statutory requirement that prevents the arbitrary exercise of discretion, upholding the constitutional guarantees under Articles 14 and 21.
Apart from the documentation of facts, the significance of the judgment can be seen in the context of Article 14 and the prevention of arbitrariness. The equality that exists before the law demands that the initiation of the criminal process be uniform. The Bench recognised that granting the police the power to verify the truth of a complaint before registration would inevitably lead to selective enforcement. In a society where socio-economic disparities run very deep, discretionary gatekeeping is likely to disproportionately affect the marginalised sections of society who do not have political capital at their disposal. By maintaining the ‘disclosure of a cognizable offence’ as a clear and objective criterion for setting off the investigative process, the Court has ensured that it is not left to the whims of the police officer.
Furthermore, this regime is inextricably linked with the procedural justice enshrined under Article 21. For the victim, the FIR sets off formal due process and oversight, and for the accused, it sets off formal procedural safeguards such as the requirement of production before a magistrate. While critics may argue that this may put the accused in jeopardy of being subjected to frivolous cases, the Court held that the liberty of the accused is protected through subsequent judicial checks, such as closure reports and the power of High Courts to quash meritless proceedings, rather than by blocking the initiation of the process itself.
Ultimately, the decision in the case of Lalita Kumari marked a paradigm shift from a police-centric model to a rights-based, victim-centric model. It held that the registration of an FIR is not an act of grace by the state but a statutory obligation to fulfill the promise of access to justice guaranteed under the Constitution.
Empirical Realities: The Myth of Easy FIR Registration
Despite the clear mandate of Lalita Kumari, empirical evidence suggests that the registration of crimes in India remains fraught with difficulty. The phenomenon of “burking”- the active refusal or discouragement of FIR registration- persists as a systemic challenge within the Indian police force. While the SC’s concern in Azad Singh Kataria regarding ‘cantankerous litigants’ highlights real instances of over-registration, BPR&D data regarding ‘burking’ actually proves that many actual crimes are being simultaneously suppressed. These are not mutually exclusive phenomena; rather, they are simultaneous pathologies, where influential persons may weaponise the FIR while weaker complainants are systematically excluded. This duality further strengthens the argument that the answer does not lie in pre-registration checks, which would only serve to further empower the police to selectively filter, but rather in post-registration oversight to deal with malicious complaints and investigative lapses.
The NCRB Crime in India Report 2023 shows that police use “informal verification” or “counselling” to settle disputes without registering any crime. Victims are advised to “settle” disputes among themselves or complaints are only registered as “petitions” or “General Diary.” There is a huge gap between complaints and registered crimes. Significantly, the Bureau of Police Research and Development (BPR&D) itself shows that police use “Dispute Resolution” as a means of reducing crime data. This is precisely where there is a crisis of under-reporting crimes. This “burking” of crimes is further seen in how few cybercrime complaints are registered as FIRs, as shown in recent reports and academic research where scholars empirically explored such issues of “burking”. Collectively, this record suggests that the real crisis is not an explosion of frivolous cases but a structural refusal to document the grievances of the average citizen.
Furthermore, the police are generally reluctant to file FIRs in cognizable cases, either in pursuit of temporal benefits like bribes and political favors, or simply because they do not want to undergo the rigorous investigation process. This is because the registration of an FIR triggers a statutory chain of events, which requires considerable labor on the part of the police station. Thus, “filtering” becomes an administrative tool used in the name of expediency rather than justice.
The consequences of such informal filtering are particularly serious in the case of marginalised communities. When the police have the authority to “verify” a complaint, they often do so through the prism of local social hierarchies. Thus, crimes committed against SCs and STs are often downgraded to the category of ‘group clashes’ or ‘rioting’ so that the police can avoid the stringent provisions of the Atrocities Act.
Despite the authoritative judgment in Lalita Kumari, which held that registration of FIRs in all cognizable offenses is mandatory without the need to hold a preliminary inquiry (subject to certain exceptions), the ground-level compliance with this judgment has not been uniform. When the police refuse to register the FIR, the statutory process requires the complainant to first approach the Superintendent of Police under Section 154(3) CrPC, and failing that, to approach the jurisdictional Magistrate under Section 156(3) CrPC (now its BNSS equivalent), praying for the court to order an investigation. The High Courts are flooded with a large number of litigations involving this process, which, despite the judgment in Lalita Kumari, has not been intended to be a parallel process to the registration of FIRs, but the persistence of such judicial interventions is an indirect yet compelling evidence that non-registration of FIRs in cognizable offences is a systemic problem, not an exception.
The SC has repeatedly reaffirmed the Lalita Kumari ratio in cases like Pradeep Nirankarnath Sharma vs The State Of Gujarat, reiterating that mandatory FIR registration cannot be replaced by discretionary screening. This need for constant reiteration signals an implementation deficit rather than doctrinal ambiguity. Empirical data, such as the low conversion rates of cybercrimes into FIRs and documented “informal verification” patterns, refute the “floodgates” thesis of over-registration, pointing instead to a persistent culture of bureaucratic filtration. This systemic reluctance is precisely why the Ministry of Home Affairs (MHA) has issued repeated advisories directing police to register FIRs without discrimination or delay. Even with the Court threatening coercive action against erring officials, the ground reality remains unchanged. These failures prove the true crisis is not a surplus of rights but a deficit of duty, as even the executive recognises that “gatekeepers” frequently choose exclusion over enforcement.
Section 173(3) BNSS: Expansion Through Classification
The BNSS has structurally undermined the framework established in the Lalita Kumari framework by codifying the preliminary inquiry under Section 173(3). While the original judgment had exceptions based on subject matter, the BNSS has exceptions based on the quantum of punishment. This change has led to the establishment of the rule that, where the punishment is between 3-7 years, an officer can conduct a 14-day preliminary inquiry to determine the existence of a ‘prima facie case’ on the basis of having obtained permission from the DySP.
This classification is pertinent, as the majority of common crimes under the Bharatiya Nyaya Sanhita (BNS) fall within this 3-to-7-year bracket. Crimes like cheating, criminal breach of trust, and theft are now open to the possibility of a 14-day delay before an FIR is registered. While exceptions under the original judgment in Lalita Kumari were limited and descriptive, like ‘medical negligence’ or ‘commercial disputes,’ the BNSS has established a classification based on the quantum of punishment.
This procedural delay has been noted by legal analysts, who have raised several concerns. While the investigation must be completed within 14 days, there is no time limit placed on the DySP to grant “prior permission,” leaving the complainant in a state of indefinite wait before the 14-day clock even begins. However, in Indian administrative law, when a statute vests discretionary power without specifying a timeframe, courts consistently imply a “reasonable time” requirement to prevent the arbitrary exercise of power. A complainant could potentially seek a writ of mandamus to compel the DySP to decide within a judicially determined period, drawing on the procedural dimensions of Article 21.
Another change, moving from “disclosure of a cognizable offence” to “prima facie case,” places an additional burden on police, who must now assess the quality of the evidence rather than the content of the complaint. During this administrative delay, however, there is a significant risk of tampering with evidence, intimidation of witnesses, and destruction of digital records. This gives the accused party a “head start,” potentially rendering any subsequent investigation a futile exercise in documentation rather than a pursuit of truth.
The legislative expansion of this inquiry raises significant concerns under Article 14, which requires that classification should satisfy a stringent two-part test, whereby classification should be based on intelligible differentia and should have a rational nexus to the objective of classification. In the landmark ruling in State of West Bengal v. Anwar Ali Sarkar, a classification is struck down as arbitrary if it lacks a reasonable basis for the distinction. If we apply this framework, then the real purpose of Section 173(3) is to filter out frivolous complaints. However, there is a lack of logic in filtering out complaints based on a quantum of punishment ranging from 3 to 7 years. There is no reason to believe that a minor crime with a maximum sentence of 3 years is less likely to be a frivolous complaint than a ten-year sentence, yet immediate registration is mandatory for the former, whereas a delay of 14 days is permitted for the latter. This is an unconstitutional distinction in that “middle-tier” crimes are subject to administrative filtering, whereas minor and heinous crimes do not, rendering the classification arbitrary and detached from its goal of preventing legal abuse.
The oral observations in Azad Singh Kataria highlight a deep judicial anxiety regarding the “abuse” of the mandatory FIR doctrine. CJI Surya Kant’s critique reflects a concern that the system is being weaponised by “cantankerous people” to settle scores, leading to a “litigation explosion.” However, an alternative interpretation is that this surge represents an increase in “rights awareness.” The rise in FIRs and quashing petitions may simply reflect a society no longer willing to accept the silent refusal of the police to document crimes.
Finally, the solution to the problem of frivolous FIRs may not be in the dilution of the right to access justice but lies in the system itself, which may be addressed by introducing reforms that not only strengthen the quashing powers of the High Courts but also impose heavy penalties on malicious litigants and hold the police accountable for gross abuse of process. Thus, the filter may be shifted from the initiation stage to the judicial oversight stage, yet the innocent will be protected without the victim’s right to seek justice being diluted.
Suggestions and Policy Considerations
The challenge for the Indian criminal justice system is one of institutional capability, not registration. Although there is an issue of “abuse” of the law by frivolous litigants, it is not one that can be addressed by limiting access to justice. However, any modification of the unanimous five-judge decision of Lalita Kumari would need to come from a larger bench and be supported by empirical evidence rather than anecdotal evidence of abuse. If the preliminary inquiry (PI) under Section 173(3) of the BNSS is to be sustained, it would need to be strictly calibrated and time-bound. The legislature should narrow the broad 3-to-7-year classification to specific “high-risk” categories, ensuring DySP permission is granted within a strict 48-hour window. Furthermore, it is possible that a “deemed registration” mechanism could be judicially read into the statute to prevent indefinite administrative silence from violating the right to access justice if DySP permission is not granted within a strict 48-hour window. Consequently, courts may intervene to ensure that statutory silence does not become a tool for the constitutional evasion of mandatory duties.
However, a significant distinction for such “limited exceptions” has been established in the case of Imran Pratapgarhi v. State of Gujarat (2025), in which the SC had quashed the FIR pertaining to a shared poem, terming the registration of such an FIR a “mechanical exercise.” The Court held that in cases pertaining to allegations regarding Article 19(1)(a), a PI is “invariably appropriate” to determine whether the content, in fact, incites violence under Article 19(2). This implies that a limited test can safeguard fundamental rights from political persecution. Nevertheless, this “constitutionally sensitive” exemption for free speech is vastly dissimilar from BNSS’s “punishment-based” rule. The former is a safeguard for a fundamental right, while the latter is a broad-based extension of police powers. The constitutional right safeguard is successful as it is tailored narrowly enough to protect a specific and fundamental right from “chilling effects,” but it is not so with the punishment-based extension, which is an unprincipled and overbroad expansion of executive power. Unlike the specific protection for free speech, the BNSS rule applies to a vast array of common crimes, such as cheating or theft, where no such competing constitutional right justifies delaying the victim’s access to justice. By using punishment as a crude criterion, the BNSS moves away from the victim-centric mandate of Lalita Kumari and establishes a generalized discretionary regime that lacks the clear, rights-based justification found in Imran Pratapgarhi.
Digital transparency provides a vital opportunity to eliminate informal filtering. In light of the inconsistent implementation and lack of digital infrastructure of large-scale systems such as CCTNS, it is suggested that the government instead focus on immediately implementable transparency measures. A mandatory timestamped SMS or email acknowledgement, sent to the complainant when any information is received, would create an immutable digital trail to ensure that even preliminary investigations are recorded and traceable from first contact.
Finally, every preliminary inquiry initiated under the BNSS should be reported to the jurisdictional magistrate within 24 hours. This ensures judicial oversight exists even before an FIR is filed, preventing the police from using the 14-day inquiry window to intimidate witnesses or manipulate evidence. Along with this, increased judicial costs for malicious complainants and magisterial oversight will allow the system to prevent “FIR terrorism” without watering down the threshold of justice at all. In the end, the answer to the beleaguered judiciary is to increase oversight at the end of the process, not to shut the door at the beginning.
Conclusion
The development of FIR jurisprudence has arrived at a crossroads in constitutional law. The Constitution Bench judgment in Lalita Kumari has reaffirmed that the registration of an FIR after the disclosure of a cognizable offence is not merely executive discretion but a constitutional duty and a statutory obligation under Articles 14 and 21 of the Constitution. Section 173(3) of the BNSS and the emerging judicial concerns in Azad Singh Kataria, however, indicate a trend that favors administrative caution and the need to protect the state from frivolous prosecution. This trend, if not arrested, will result in the police again being the arbiters of which grievances to extend state recognition to, with discretion inevitably flowing from local power equations and social dynamics.
Such consequences are not merely theoretical. A broad preliminary inquiry window can be used to transform verification into “management” of cases, allowing for evidence tampering, witness intimidation, and delays that undermine the integrity of investigations. While the problem of “abuse” of the criminal process is not abstract, systemic police reluctance remains a barrier to access to justice at the threshold. Mandatory registration is not abstract idealism; it is a structural safeguard against gatekeeping by the executive. Any recalibration of the BNSS must be highly circumscribed, constitutionally sound, and evidence-based. The problem with the system is not access to law; it is its inability to investigate and adjudicate. Diluting the entry point will not cure congestion; it risks reinstating a discretionary regime where recognition of crime depends less on legal right than on administrative will.
Sharnam Agarwal: A third-year student at the National Law Institute University (NLIU), Bhopal. He has a keen interest in criminal law reforms and constitutional law.
Yashika Chouksey: A second-year student at the National Law Institute University (NLIU), Bhopal.