Criminal Procedure: Code of Criminal Procedure, 1973 / Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS)
Complaint FIR and Police Report Distinction
Complaint, FIR and Police Report under the BNSS, 2023: Meaning, Distinction, Sections 2(1)(h), 173 and 193, and the Three Routes to Cognizance
A criminal case can reach a court in three ways, and each has its own name, its own recipient and its own consequences. A complaint is an allegation made to a Magistrate. A first information report is information about a cognizable offence given to the police. A police report is what the police send to the Magistrate when the investigation is over. The three are frequently used interchangeably in ordinary speech and are entirely distinct in law.
The distinction is not terminological. It decides who examines the allegation first, whether an investigation follows automatically, which trial procedure applies, and what the informant or complainant may do if the matter is not taken forward. Two of the three are defined in section 2 of the Bharatiya Nagarik Suraksha Sanhita, 2023; the first information report, curiously, is not defined at all.
Figure 1: The three compared
1. Complaint
Section 2(1)(h), BNSS 2023 “Complaint” means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Sanhita, that some person, whether known or unknown, has committed an offence, but does not include a police report. Explanation. A report made by a police officer in a case which discloses, after investigation, the commission of a non-cognizable offence shall be deemed to be a complaint; and the police officer by whom such report is made shall be deemed to be the complainant. |
1.1 The four elements
- An allegation. The word is wide and covers any assertion of fact amounting to an accusation. No particular form is required and the allegation may be oral.
- Made to a Magistrate. This is the element that distinguishes a complaint from every other kind of accusation. An allegation made to the police, however formal, is not a complaint; an allegation made to a Magistrate is, whatever its form.
- With a view to his taking action under the Sanhita. The allegation must seek criminal action. A petition seeking some other relief, or a report submitted for information, is not a complaint.
- That some person, whether known or unknown, has committed an offence. The accused need not be named, and the offence may be cognizable or non-cognizable.
1.2 What follows a complaint
On receiving a complaint, a Magistrate who takes cognizance under section 210(1)(a) proceeds under section 223 to examine the complainant and the witnesses present, upon oath, and to reduce the substance of the examination to writing. The Sanhita has added an important proviso: the Magistrate shall not take cognizance on a complaint without giving the accused an opportunity of being heard. Nothing in section 200 of the Code of Criminal Procedure required this, and it introduces an adversarial element at a stage that had been entirely ex parte.
The Magistrate may then postpone the issue of process under section 225 and either inquire into the case himself or direct an investigation by a police officer, for the purpose of deciding whether there is sufficient ground for proceeding. If he finds sufficient ground he issues process under section 227; if not, he dismisses the complaint under section 226, recording briefly his reasons.
1.3 The Explanation: a police report that is a complaint
The Explanation creates the single bridge between the police route and the complaint route. Where a police officer, having investigated on the order of a Magistrate under section 174(2), files a report disclosing a non-cognizable offence, that report is deemed to be a complaint and the officer is deemed to be the complainant. The consequence is procedural and substantial: the case is thereafter treated as instituted otherwise than on a police report, so a warrant case among those offences follows the second branch of Chapter XX, under which all the prosecution evidence must be taken before the question of charge arises.
2. First Information Report
The expression “first information report” appears nowhere in the definitions. It is the name given in practice, and in the decided cases, to the information recorded under section 173(1). The section itself speaks only of “information relating to the commission of a cognizable offence”.
Section 173(1), BNSS 2023: the essentials Every information relating to the commission of a cognizable offence, irrespective of the area where the offence is committed, may be given orally or by electronic communication to an officer in charge of a police station. If given orally, it shall be reduced to writing by him or under his direction, and be read over to the informant; every such information, whether given in writing or reduced to writing, shall be signed by the person giving it. Information given by electronic communication shall be taken on record by him on being signed within three days by the person giving it. The substance is entered in a book kept by the officer in such form as the State Government may prescribe. |
2.1 The essential features
- It relates to a cognizable offence. Information about a non-cognizable offence is dealt with under section 174 and does not produce a first information report.
- It is given to the police, not to a Magistrate, and under the Sanhita it may be given at any police station irrespective of the area in which the offence was committed. This is the Zero FIR, previously an administrative practice and now a statutory entitlement.
- It may be given by anyone. The informant need not be the victim, need not be an eyewitness, and need not have personal knowledge. Hearsay information may found an FIR.
- It need not name the accused or disclose every detail. It is not an encyclopaedia of the prosecution case; it is the first information, and its function is to set the investigation in motion.
- It is not substantive evidence. It may be used to corroborate or to contradict its maker, and where the maker is dead it may in some circumstances be relevant under the law of evidence, but it does not prove the facts it states.
- A free copy goes to the informant or the victim under section 173(2), where the CrPC required it only for the informant.
2.2 There can be only one first information report
📖 T.T. Antony v. State of Kerala, (2001) 6 SCC 181 Facts: A second first information report and a fresh investigation were initiated in respect of the same occurrence in which an earlier FIR had already been registered and investigated. The question was whether the police may register a second FIR and conduct a fresh investigation into the same cognizable offence or the same occurrence. Held: The Supreme Court held that there can be no second FIR and no fresh investigation on receipt of every subsequent piece of information in respect of the same cognizable offence or the same occurrence giving rise to one or more cognizable offences. The information first recorded sets the investigation in motion, and any further information received afterwards is a statement falling under the provisions governing statements to the police, to be dealt with in the course of the same investigation, with further investigation available where it is warranted. A second FIR in respect of the same occurrence, and a fresh investigation on it, are not permissible and are liable to be quashed. Ratio: The FIR is the record of the first information about an occurrence and there can be only one for that occurrence. Later information is part of the same investigation, not the foundation of a new one. |
The rule is not absolute in its application. Where a subsequent information discloses a distinct occurrence, or where the version is a counter-case put forward by the opposite party arising out of the same incident, a separate first information report is permissible, and the test that the courts apply is whether the second information relates to the same occurrence or to a different one. The test is one of sameness of occurrence and not of sameness of the offence charged.
3. Police Report
Section 2(1)(t), BNSS 2023 “Police report” means a report forwarded by a police officer to a Magistrate under sub-section (3) of section 193. |
The definition is purely referential. What matters is section 193(3), which requires the officer in charge, as soon as the investigation is completed, to forward to the Magistrate empowered to take cognizance a report in the prescribed form stating the names of the parties, the nature of the information, the names of the persons who appear to be acquainted with the circumstances, whether an offence appears to have been committed and by whom, whether the accused has been arrested and whether he has been released on bond, and whether the report under section 194 has been sent. Clause (ii) requires the police officer to inform the informant or the victim of the progress of the investigation, including by electronic communication, within ninety days.
The report is what the practice calls a charge sheet where it recommends prosecution, and a final report or closure report where it does not. Neither expression appears in the Sanhita. Both are police reports within section 2(1)(t), because the definition attaches to the provision under which the report is forwarded and not to its conclusion.
3.1 What the Magistrate may do with it
- Accept a report recommending prosecution and take cognizance under section 210(1)(a).
- Disagree with a report recommending prosecution and decline to take cognizance.
- Accept a report recommending closure and drop the proceedings.
- Disagree with a report recommending closure and take cognizance nonetheless, on the material in the report itself, since the opinion of the investigating officer does not bind the Magistrate.
- Direct further investigation under section 193(9), which now requires completion within ninety days, extendable by the court.
📖 Bhagwant Singh v. Commissioner of Police, (1985) 2 SCC 537 Facts: The police submitted a final report recommending that no case be proceeded with, and the Magistrate accepted it and dropped the proceedings without any notice to the person who had lodged the first information report. The question was whether the informant is entitled to be heard before such a report is accepted. Held: The Supreme Court held that where a report is submitted on completion of an investigation to the effect that no offence appears to have been committed, the Magistrate may accept it and drop the proceeding, may disagree with it and take cognizance, or may direct further investigation. But because acceptance of the report brings the proceeding to an end, the informant must be given notice and an opportunity of being heard before the Magistrate decides to accept it. The Court added that the injured person or a relative of a deceased, even if not the informant, should be permitted to be heard, though no notice need be issued to them as of course. Ratio: The informant has a right to notice and a hearing before a report recommending closure is accepted. The decision to accept or reject a police report is the Magistrate’s, and the opinion of the investigating officer does not conclude it. |
The principle has been strengthened by the Sanhita in two respects. Section 193(3)(ii) requires the informant or victim to be told of the progress of the investigation within ninety days, so that the report does not arrive unannounced. And section 230 requires copies of the police report and the documents accompanying it to be supplied to the victim as well as to the accused, within fourteen days.
4. The Three Routes to Cognizance
Figure 2: How a case reaches the court under section 210
Section 210 provides that any Magistrate of the first class, and any Magistrate of the second class specially empowered, may take cognizance of an offence upon receiving a complaint of facts which constitute such offence, upon a police report of such facts, or upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed. The three routes converge at cognizance and diverge again immediately, because the trial procedure that follows depends on which route was taken.
Consequence | Case instituted on a police report | Case instituted on a complaint |
|---|---|---|
Examination of the complainant | Not applicable | Required under section 223, and the accused must now be heard before cognizance |
Supply of documents | Section 230 requires supply within fourteen days to the accused and the victim | Section 231 governs supply where the case is not instituted on a police report |
Warrant case procedure | Chapter XX, first branch: discharge and charge decided on the record | Chapter XX, second branch: all prosecution evidence taken before charge |
Dismissal at the threshold | Not applicable; the Magistrate may decline cognizance | Dismissal under section 226 for want of sufficient ground, with brief reasons |
Withdrawal | Withdrawal from prosecution under section 360, through the Public Prosecutor, with the victim heard | In a summons case, withdrawal of the complaint under section 280 with the leave of the Magistrate |
Absence of the complainant | Does not arise | Acquittal under section 279 in a summons case; discharge under section 272 in a warrant case |
Compensation for a groundless accusation | Does not arise | Section 273, in a warrant case instituted otherwise than on a police report |
5. The Three Compared
Point of comparison | Complaint | First information report | Police report |
|---|---|---|---|
Defined by | Section 2(1)(h) | Not defined; recorded under section 173(1) | Section 2(1)(t), referring to section 193(3) |
Made to | A Magistrate | An officer in charge of a police station, at any station | A Magistrate |
Made by | Any person, including a police officer in the deemed case | Any person with information | A police officer, on completion of investigation |
Offence | Cognizable or non-cognizable | Cognizable only | As disclosed by the investigation |
Form | Oral or in writing | Oral, in writing, or by electronic communication signed within three days | The prescribed form under section 193(3) |
Position in time | Ordinarily the first step in the complaint route | The first step in the police route | The last step of the investigation |
Investigation follows automatically | No; the Magistrate decides whether to inquire or direct investigation | Yes, under section 175(1) | Investigation is already complete |
Evidentiary value | Not substantive evidence; the complainant is examined on oath | Not substantive evidence; usable to corroborate or contradict its maker | Not evidence; it is the material on which cognizance is taken |
Right of the maker if it is not acted on | Dismissal under section 226 is a judicial order, subject to revision | Refusal to register may be pursued under section 173(4) and by other remedies | The informant must be heard before a closure report is accepted |
⚠ Three points on which confusion is common A charge sheet is not a defined expression. What section 2(1)(t) defines is a police report, and a report recommending closure is as much a police report as one recommending prosecution. Both are forwarded under section 193(3). An FIR is not a complaint, even when it is in writing and signed. The recipient decides the character of the document: an allegation to a Magistrate is a complaint, an allegation to the police about a cognizable offence produces an FIR. A complaint may be made even where an FIR exists. The two routes are not mutually exclusive, and a person dissatisfied with the police may approach the Magistrate. What the Magistrate may then do is governed by sections 210, 223 and 225, and by the rule against a second investigation into the same occurrence. |
6. Key Takeaways
The position stated shortly 1. A complaint under section 2(1)(h) is an allegation, oral or in writing, made to a Magistrate with a view to his taking action under the Sanhita, and it excludes a police report. 2. The Explanation deems a police report disclosing, after investigation, a non-cognizable offence to be a complaint, and the officer to be the complainant. 3. A first information report is not defined. It is the information about a cognizable offence recorded under section 173(1), which may now be given at any police station and by electronic communication signed within three days. 4. There can be only one FIR for one occurrence; later information is part of the same investigation: T.T. Antony. A counter-case or a genuinely distinct occurrence is an exception. 5. An FIR is not substantive evidence; it may be used to corroborate or contradict its maker. 6. A police report under section 2(1)(t) is the report forwarded under section 193(3) on the completion of investigation, whether it recommends prosecution or closure. 7. The Magistrate is not bound by the opinion in the report; he may accept it, disagree and take cognizance, or direct further investigation under section 193(9). 8. The informant must be given notice and a hearing before a report recommending closure is accepted: Bhagwant Singh. 9. Which route was taken decides the trial procedure: a warrant case on a police report follows the first branch of Chapter XX, and one instituted otherwise follows the second. |
7. Frequently Asked Questions
What is the difference between a complaint and an FIR?
A complaint is an allegation made to a Magistrate and may relate to a cognizable or a non-cognizable offence. An FIR is information about a cognizable offence given to an officer in charge of a police station, which sets an investigation in motion under section 175(1). The recipient, not the form, decides which it is.
Is an FIR defined in the BNSS?
No. The expression does not appear in section 2. It is the name given in practice to the information recorded under section 173(1), which the section itself calls information relating to the commission of a cognizable offence.
Can there be two FIRs for the same incident?
Ordinarily no. The Supreme Court held in T.T. Antony that there can be no second FIR and no fresh investigation in respect of the same occurrence; later information is a statement in the same investigation. A counter-case put forward by the opposite side, and information disclosing a genuinely distinct occurrence, are recognised exceptions.
Is a charge sheet the same as a police report?
A charge sheet is one kind of police report, namely one recommending prosecution. A closure or final report is equally a police report, because section 2(1)(t) defines the expression by reference to section 193(3) and not by reference to the conclusion reached.
Must the informant be heard before a closure report is accepted?
Yes. Bhagwant Singh v. Commissioner of Police requires notice and an opportunity of being heard to the informant before the Magistrate accepts a report recommending that no case be proceeded with, because acceptance ends the proceeding.
Can a Magistrate take cognizance even though the police recommend closure?
Yes. The opinion of the investigating officer does not bind the Magistrate. On the material in the report itself he may disagree and take cognizance under section 210(1)(a), or he may direct further investigation under section 193(9).
Related Topics
- Inquiry, Investigation and Trial: Meaning and Distinction
- The Victim under the BNSS, 2023
- Information in Cognizable Cases: Section 173, Zero FIR and e-FIR
- Complaints to Magistrates: Sections 223 to 226, BNSS
- Cognizable and Non-Cognizable Offences under the BNSS, 2023
- Report on Completion of Investigation: Section 193, BNSS