The Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, which seeks to replace the Code of Criminal Procedure, 1973, has, among other changes, introduced the provisions of Zero-FIR, E-FIR, and preliminary enquiry before the registration of FIR in certain cases. This article aims to discuss and help our readers to understand these three concepts and the provisions in detail.
President Draupadi Murmu, on December 25, gave her assent to the three new criminal code bills, which Parliament recently cleared. These new laws, the Bharatiya Nyaya Sanhita, the Bharatiya Nagarik Suraksha Sanhita, and the Bharatiya Sakshya Sanhita, will replace the Indian Penal Code, the Code of Criminal Procedure, and the Indian Evidence Act of 1872.
Zero FIR
Beginning with the Zero-FIR, let us first try and understand what this means. A Zero FIR can be registered in any police station where information about a cognizable offence (where a police officer may arrest without warrant) is received irrespective of its territorial jurisdiction. Thus, in other words, a zero FIR can be lodged at any Police Station irrespective of where the incident has taken place. After registering the FIR, the police station is then required to transfer the relevant documents to the police station which has the jurisdiction over the matter. The concerned police station then numbers the FIR and investigates the case.
Needless to say, the provision of Zero-FIR will help the victims as the police officer is duty-bound to register the first information regardless of the territorial jurisdiction. While Section 154 of the CrPC provided for the registration of an FIR, the corresponding provision for the same in BNSS is Section 173. For convenience, the relevant portion of Section 173 reads as:
“173. (1) 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 and if given to an officer in charge of a police station,— (i) orally, it shall be reduced to writing by him or under his direction, and be read over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it; (ii) by electronic communication, it shall be taken on record by him on being signed within three days by the person giving it…”
It may also be noted that a Zero-FIR is not a newly discovered concept in the Indian criminal law system. In an advisory issued by the Ministry of Home Affairs (2015), the government suggested registering Zer-FIRs for crimes against women. Not only this, but even the judiciary has also stressed the registration of a Zero-FIR in several cases. For instance, in the case of State of AP Vs Punati Ramulu and others, the court held that “Any lack of territorial jurisdiction should not have prevented the constable from recording information about cognizable offence and forwarding the same to the police station having jurisdiction over the area in which the crime was said to have been committed.”
In another decision rendered in Satvinder Kaur Vs Government of NCT, Delhi, the Supreme Court held that “even after investigation is over, if the Investigating Officer arrives at the conclusion that the cause of action for lodging FIR has not arisen within his territorial jurisdiction, then he is required to submit a report accordingly under Section 170 of the Criminal Procedure Code and to forward the case to the Magistrate is empowered to take cognizance of the offence.”
BNSS has now given a statutory mandate for Zero FIR.
E-FIR
Further, Section 173 also provides for registration of the FIR electronically. However, the signature of the person giving such information is required to be taken within three days before the e-FIR can be taken on record.
This provision has come as a major relief for women victims. This will help them not only prompt the registration of sensitive cases but also help them in not repeat their ordeal while registering their FIR.
In this regard, it may also be noted that the Parliamentary Standing Committee on Home Affairs, in its review report of the Bill, acknowledged the positive impact of allowing the online registration of FIR. However, at the same time, the committee also opined that such online/electronic registration should be allowed only through modes specified by the State. If left unregulated, it would be technically and logistically challenging for the police. It would also be difficult to track and manage the multiple FIRs filed.
Accordingly, the Committee, in its report, recommended the insertion of “as specified by rules” after “electronic communication” to grant the government the authority to prescribe specific modalities for electronic FIR registration.
However, the BNSS bill, as introduced in the Lok Sabha and now has been given assent by the President, did not include any such insertion.
Preliminary Enquiry
Apart from this, Section 173(3) of BNSS has given statutory recognition to preliminary enquiry for cases punishable with three years or more but less than seven years. The same shall be conducted with the prior permission from an officer not below the rank of Deputy Superintendent of Police. Pertinently, the enquiry shall be carried out within a period of fourteen days in cases where there exists a prima facie case. However, in cases where the prima facie case already exists, the officer is required to proceed with the investigation.
For convenience, Section 173(3) reads as:
“(3) Without prejudice to the provisions contained in section 175, on receipt of information relating to the commission of any cognizable offence, which is made punishable for three years or more but less than seven years, the officer in charge of the police station may with the prior permission from an officer not below the rank of Deputy Superintendent of Police, considering the nature and gravity of the offence,-
(i) proceed to conduct preliminary enquiry to ascertain whether there exists a prima facie case for proceeding in the matter within a period of fourteen days; or
(ii) proceed with investigation when there exists a prima facie case.”
In this context, one may note that the Supreme Court, in its landmark decision of Lalita Kumari v. Government of Uttar Pradesh, had categorically held that the registration of FIR is mandatory if the same discloses commission of a cognizable offence. It held:
“Registration of FIR is mandatory under Section 154 of the Code, if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation. If the information received does not disclose a cognizable offence but indicates the necessity for an inquiry, a preliminary inquiry may be conducted only to ascertain whether cognizable offence is disclosed or not.”
Thus, the scope of the preliminary enquiry was to ascertain whether the information reveals commission of cognizable offence. However, as per the new provision, the threshold for conducting preliminary enquiry is of prima facie case.
According to Lalita Kumari, the category of cases in which preliminary inquiry may be made were :
(a)Matrimonial disputes/ family disputes
(b)Commercial offences
(c) Medical negligence cases
(d)Corruption cases
Written by Adv Rohit Yadav