The Criminal Law Journey: Crime → FIR → Arrest

Every criminal case travels a fixed path. A crime is committed, an FIR sets the machinery in motion, and an arrest follows where the law permits. The substantive offence is defined by the Bharatiya Nyaya Sanhita (BNS), 2023; the procedure is governed by the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023.

What Exactly Is an FIR?

FIR means the first time reporting of information to the police regarding the commission of a cognizable offence, by which the criminal law comes into motion.

• BNSS: Section 173
• Cr.PC (repealed): Section 154

Note that the term "First Information Report" is not defined anywhere in the statute itself — it is a term of practice built up through police manuals and judicial interpretation. What the section actually deals with is "information in cognizable cases".

Essentials of an FIR

• Information — there must be information about a crime
• Cognizable offence — the offence disclosed must be cognizable
• Officer in charge of a police station — information must reach the officer I/C
• Woman police officer — mandatory in specified offences against women
• Oral or written — either form is valid
• Jurisdictional or not — territorial jurisdiction is no bar (Zero FIR)
• Signature of the informant — required after the information is read over
• Substance entered in a book — the general diary / station diary maintained in the prescribed form

Journey of an FIR

1. FIR Registered (एफआईआर दर्ज)
2. Preliminary Inquiry (प्रारंभिक जाँच) — only in the limited cases permitted by law
3. Investigation (जांच)
4. Report (प्रतिवेदन) — the police report under Section 193 BNSS
5. Court (न्यायालय)

Copies of the FIR — Who Gets One?

Who Can File an FIR?

• Victim — the person against whom the offence is committed
• Third person — any person with knowledge of the offence; being an eyewitness is not required
• Accused — yes, an accused can himself set the law in motion
• Police — on their own information (a suo motu FIR)
• Court — can direct registration of an FIR

What If the Police Refuse to Register an FIR?

Refusal by the officer in charge of the police station does not end the matter. The law builds an escalation ladder:

1. Superintendent of Police / Senior Police Officer — send the substance of the information in writing by post to the SP, who may investigate personally or direct a subordinate
2. Judicial Magistrate — application to the Magistrate, who can order registration and investigation
3. High Court — writ jurisdiction where the above remedies fail

Types of FIR — Jurisdictional and Non-Jurisdictional

E-FIR — Registration by Electronic Means

• Information about a cognizable offence may be given electronically
• It must be signed by the informant within 3 days of being given
• Only on such signing is it entered in the book maintained by the officer

This is one of the genuinely new features of the BNSS. It removes the requirement of physical presence at the police station at the first instance, while retaining the signature requirement as a check against frivolous or anonymous complaints.

Preliminary Inquiry — Section 173(3) BNSS

• Applies to a cognizable offence
• Punishable with 3 years or more but less than 7 years
• Requires prior permission of an officer not below the rank of Deputy Superintendent of Police (DSP)
• The officer in charge "may" — considering the nature and gravity of the offence — conduct a preliminary enquiry to ascertain whether a prima facie case exists. It is discretionary, not mandatory.
• To be completed within 14 days
• If a prima facie case is made out, the police proceed further with investigation

FIR in Offences Against Women

Where the offence alleged is under Sections 64, 65, 66, 67, 68, 69, 70, 71, 74, 75, 76, 77, 78, 79 or Section 124 of the Bharatiya Nyaya Sanhita, 2023, the information shall be recorded by a woman police officer.

Where the victim of these offences is temporarily or permanently disabled

• Applies where the person against whom one of the same specified offences is alleged is temporarily or permanently, mentally or physically disabled — it is not a general rule for every disabled informant
• Information is recorded at the residence of the person or a convenient place of her choice
• In the presence of an interpreter or special educator, as the case may be
• The recording of the statement shall be videographed
• The statement is to be recorded by a Magistrate (under Section 183 BNSS) as soon as possible

Section 173 BNSS at a Glance

• Reporting cognizable offences: Information on cognizable offences can be provided orally or electronically to a police station officer.
• Oral information: Must be written by the officer, read back to the informant, and signed by the informant.
• Electronic information: Recorded on receipt and signed by the informant within three days.
• Record keeping: All information must be entered in a book in a format prescribed by the State.
• Sensitive cases (women): If the offence is against a woman under specified sections of the Bharatiya Nyaya Sanhita, 2023, information must be recorded by a woman officer.

Lalita Kumari Guidelines

Lalita Kumari v. Government of Uttar Pradesh (2014) — a five-judge Constitution Bench settled the long-standing conflict on whether registration of an FIR is mandatory.

1. Register FIR: Mandatory for all cognizable offences.
2. Preliminary inquiry: Allowed only in specific categories — matrimonial and family disputes, commercial offences, medical negligence, corruption cases, and cases of abnormal delay in reporting.
3. 7-day limit: The inquiry must finish within 7 days.
4. Record outcome: Reasons must be documented if an FIR is not filed, and the informant must be informed.
5. Officer action: Non-compliance leads to departmental action against the erring officer.
6. Magistrate order: The Magistrate can direct registration of an FIR if officers fail to register it.

Is There a Limitation Period for an FIR?

No. The Limitation Act, 1963 governs civil suits and certain applications. There is no limitation period for lodging an FIR — an FIR can be registered however long after the incident. Delay in lodging is a matter that goes to evidentiary value and requires explanation at trial, but it is not a bar to registration.

Chapter V — Arrest of Persons

Arrest is the act of taking a person into custody by legal authority.
गिरफ्तारी कानूनी प्राधिकार द्वारा किसी व्यक्ति को हिरासत में लेने का कार्य है।

The key ingredients are custody and legal authority. Custody without legal authority is wrongful confinement; legal authority without actual custody is not arrest.

The constitutional anchor — Article 21

• Article 21 guarantees the right to life and personal liberty
• An arrest curtails that right
• Therefore every arrest must follow a procedure established by law — which is precisely what Chapter V BNSS supplies

Section mapping

• BNSS Section 35 corresponds to Cr.PC Section 41 — arrest without warrant

Who Can Arrest?

• Police officer — including the officer in charge of a police station and a superior officer
• Military officer
• Private person
• Magistrate

Sources of the Rights of an Arrested Person

Section 35 BNSS — Arrest Without Warrant

The basic architecture of arrest:

• Cognizable offence → arrest without warrant permitted
• Non-cognizable offence → arrest only with a warrant

Situations where police can arrest without a warrant

• (a) A person committing a cognizable offence in the presence of police
• (b) Reasonable suspicion of committing a cognizable offence punishable with imprisonment up to 7 years (with or without fine)

Arrest must be necessary for one of these purposes

• Preventing further offences
• Proper investigation
• Preventing evidence tampering
• Ensuring court appearance

Further conditions under Section 35

• Reasons for arrest or non-arrest must be recorded in writing by the police officer
• Where there is credible information of a cognizable offence punishable by more than 7 years (or with death), arrest may be made

Categories where arrest without warrant is specifically permitted

1. Proclaimed offender
2. Possession of stolen property
3. Escaping custody
4. Desertion from the Armed Forces
5. Extradition offences

Notice to appear — the Arnesh Kumar safeguard, now statutory

1. No person who has committed a non-cognizable case shall be arrested without a warrant.
2. Where arrest is not necessary in a cognizable case, the police shall issue a NOTICE TO APPEAR.
   • It is the duty of the person to whom notice is issued to appear
   • If the person complies, he shall not be arrested
   • If the person fails to comply, he shall be arrested

• Age safeguard — Section 35(7), entirely new: Arrest of persons who are above 60 years of age or infirm requires prior permission of an officer not below the rank of Deputy Superintendent of Police, for offences punishable with less than 3 years imprisonment. Both conditions must be satisfied — an elderly person accused of a six-year offence does not get this extra protection.

Section 36 — Procedure of Arrest and Duties of the Officer

1. Clear and visible name tag bearing the officer's identity
2. Prepare a Memorandum of Arrest
   • Attested by at least one witness — a member of his family or a respectable member of the locality where the arrest is made
   • Countersigned by the arrested person
3. Inform the person of his right to have a relative or friend informed of the arrest

Section 37 — Designated Police Officer

1. A police control room in every district and at the State level
2. An officer not below the rank of Assistant Sub-Inspector designated to maintain records of the names and addresses of arrested persons and the offences charged
3. Such records to be displayed digitally — in every police station and at the district headquarters

Section 38 — Right of the Arrested Person to Meet an Advocate

The statutory text is short and must be memorised as it stands: an arrested and interrogated person "shall be entitled to meet an advocate of his choice during interrogation, though not throughout interrogation."

• The right is to meet an advocate — not to have counsel continuously present
• It operates during interrogation, expressly not throughout interrogation
• Corresponds to Section 41D Cr.PC

Section 39 — Arrest on Refusal to Give Name and Residence

1. A person commits a non-cognizable offence in front of a police officer
2. He refuses to give his name and residence, or gives one the officer believes is false
3. He may be arrested
4. If the name is given and ascertained → released on bond
5. If not given → produced before the Magistrate within 24 hours

Section 40 — Arrest by a Private Person

• A private person can arrest
• Only where the offence is cognizable AND non-bailable, committed in his presence, or where the person is a proclaimed offender
• The arrested person must be handed over to the police station or a police officer within 6 hours
• The police officer must then take him into custody if the case falls under Section 35(1); if there is reason to believe a non-cognizable offence was committed and he refuses his name and residence, he is dealt with under Section 39; and if there is no sufficient reason to believe any offence was committed, he shall be released at once

Section 41 — Arrest by a Magistrate

• A Magistrate may arrest any person within his local jurisdiction
• Applies to both Judicial and Executive Magistrates
• He may arrest himself or direct an arrest by any person

Section 42 — Protection to Members of the Armed Forces

• No member of the Armed Forces of the Union shall be arrested for anything done or purported to be done in the discharge of his official duties, except after obtaining the consent of the Central Government
• The State Government may, by notification, extend this protection to a specified class or category of members of a Force charged with the maintenance of public order — in which case its own consent is substituted for that of the Central Government

Section 43 — Arrest, How Made

• During arrest, there shall be no touching of the body if the person has submitted to custody by word or gesture
• Woman → female officer. Unless the circumstances indicate otherwise, her oral intimation of submission to custody is sufficient — physical touch is not required
• If the person resists or attempts to evade arrest, the officer may use all means necessary to effect the arrest
• Handcuffs may be used, keeping in mind the gravity of the offence — permitted for habitual or repeat offenders, escapees, and offences such as organised crime, terrorist acts, drug offences, illegal possession of arms, murder, rape, acid attack, counterfeit currency, human trafficking, sexual offences against children, and offences against the State
• No right to cause death of a person resisting arrest — unless the offence is punishable with death or imprisonment for life
• Women shall not be arrested between sunset and sunrise, except in exceptional circumstances
• In such exceptional cases, the arrest must be made by a woman officer, after making a written report to and obtaining prior permission of the Judicial Magistrate First Class (JMFC) having local jurisdiction

Section 47 — Right to Be Informed of Grounds of Arrest and Right to Bail

• Every police officer arresting without a warrant shall forthwith communicate the full particulars of the offence and the grounds of arrest
• Where the offence is bailable, the officer shall inform the arrested person that he is entitled to be released on bail and may arrange sureties

Landmark Cases You Must Quote

BNSS ↔ Cr.PC Section Mapping

The power to arrest and the justification for arrest are two different things. A police officer must be able to record on paper why the arrest was necessary — not merely that the law permitted it. That single requirement, written into Section 35 BNSS, is the sharpest reform in the whole of Chapter V.

— Legacy IAS Faculty