Section 173(1), BNSS 2023 — the operative words

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 — and a copy of the information as recorded shall be given forthwith, free of cost, to the informant or the victim.

📖 Trisuns Chemical Industry v. Rajesh Agarwal, (1999) 8 SCC 686

Facts: A first information report was registered at a place where, it was contended, no part of the offence had occurred, and the High Court quashed the proceedings on the footing that the police there had no jurisdiction to investigate. The matter came to the Supreme Court.

Held: The Supreme Court held that jurisdictional aspects are not to be decided at the threshold by quashing a first information report, and that a High Court should not stifle an investigation on the ground that the police station concerned may lack territorial jurisdiction. The Court held that where a cognizable offence is disclosed, the police have a statutory duty to investigate, and the question where the offence was committed is one which will emerge from the investigation itself and can be decided by the court which ultimately takes cognizance. It held that the objection is properly taken before the trial court, which can then transfer or decline jurisdiction as the facts require; and that quashing at the stage of the FIR on a jurisdictional ground deprives the State of the opportunity to investigate and frequently leaves a cognizable offence uninvestigated altogether. The Court restored the proceedings.

Ratio: A first information report is not to be quashed at the threshold on a jurisdictional ground. Where a cognizable offence is disclosed the police have a duty to investigate, and the question where the offence was committed emerges from the investigation and is for the trial court.

📖 Sudhir Bhaskarrao Tambe v. Hemant Yashwant Dhage, (2016) 6 SCC 277

Facts: A person aggrieved by the refusal of the police to register a first information report and investigate moved the High Court under Article 226, which entertained the petition and issued directions to the police. The Supreme Court considered whether that was the appropriate course.

Held: The Supreme Court held that where a person has a grievance that the police are not registering his first information report, or not investigating properly, the remedy is not a writ petition to the High Court but an application to the Magistrate under the provision corresponding to section 175(3), on which the Magistrate may order an investigation. The Court directed that High Courts should not entertain such petitions and should instead direct the petitioner to approach the Magistrate, since a statutory remedy exists and is designed for precisely that purpose. It reasoned that entertaining such writ petitions burdens the High Courts with matters the Magistrate is better placed to deal with, and produces inconsistent directions to the police; and that the Magistrate, having the papers and the power to call for a report, can dispose of the grievance far more effectively than a court sitting in writ jurisdiction.

Ratio: Where the police refuse to register or fail to investigate, the remedy is an application to the Magistrate, not a writ petition. High Courts should direct such petitioners to the Magistrate, the statutory remedy being designed for that purpose.

⚠ The remedies where registration is refused

Section 173(4): send the substance in writing and by post to the Superintendent of Police, who shall investigate himself or direct an investigation if satisfied that a cognizable offence is disclosed.

Section 175(3): apply to the Magistrate, who may order an investigation after considering the application, the affidavit supporting it, and a report from the police officer concerned.

The ordinary course is the Magistrate. A writ petition to the High Court is not the appropriate remedy where the statute provides one, and a High Court will ordinarily direct the petitioner to the Magistrate rather than entertain it.

And the refusal itself is a dereliction of duty where the information disclosed a cognizable offence — a matter calling for departmental notice, independently of the informant’s remedy.

The position stated shortly

1. A zero FIR is an FIR registered by a station without territorial jurisdiction, numbered zero, and transferred to the station which has jurisdiction, where it is re-registered.

2. The expression is a matter of practice. What section 173(1) does is to permit information to be given irrespective of the area where the offence is committed.

3. It exists because an informant in distress reaches the nearest station, and time lost travelling between stations is evidence lost.

4. The receiving station must record the information, give a free copy, take urgent steps, and forward the FIR without delay.

5. It may not refuse to record on territorial grounds. A refusal is a dereliction of duty.

6. Registration fixes the time of the report, permits urgent steps, and creates a record — but decides nothing about which court will try the case or which station will investigate.

7. An FIR is not to be quashed at the threshold on a jurisdictional ground; the question emerges from the investigation and is for the trial court: Trisuns Chemical.

8. An investigation is not vitiated merely because the station lacked territorial jurisdiction, unless a failure of justice is shown.

9. Where registration is refused, the remedies are section 173(4) to the Superintendent of Police and section 175(3) to the Magistrate.

10. A writ petition is not the appropriate remedy, and a High Court will ordinarily direct the petitioner to the Magistrate: Sudhir Bhaskarrao Tambe.