1. Introduction: Why FIR and Arrest Laws Matter to Every Citizen
The power of the police to register an FIR and to arrest a person directly affects the personal liberty of citizens, which is protected under Article 21 of the Constitution of India. Misuse or misunderstanding of these powers can lead to serious violations of fundamental rights.
In real life, ordinary citizens often face harassment, illegal detention, or refusal to register complaints due to a lack of awareness about their legal rights. FIR and arrest procedures are therefore not merely technical provisions of criminal law; they are core constitutional safeguards meant to balance State power with individual liberty.
The Supreme Court of India has repeatedly intervened to regulate police discretion, ensuring that criminal law is not used as a tool of oppression.
2. What is an FIR and why is it so Important
An FIR (First Information Report) is the first step in the criminal justice process. It sets the law in motion and enables the police to start an investigation.
An FIR is not meant to be an encyclopedia of facts. Its purpose is:
- to record information relating to a cognizable offence, and
- to ensure that the police act promptly.
In practice, many citizens are wrongly turned away from police stations on the pretext that the matter is “civil” or “not serious”. This refusal has been consistently disapproved by constitutional courts.
3. Mandatory Registration of FIR – Supreme Court Position (Now Under BNSS, 2023)
The law relating to the registration of FIR is no longer res integra. The Supreme Court of India, in a Constitution Bench judgment in Lalita Kumariv. Government of Uttar Pradesh, (2014) 2 SCC 1, authoritatively held that:
“Registration of FIR is mandatory under the law where the information discloses the commission of a cognizable offence. No preliminary inquiry is permissible in such a situation.”
The Court clarified that police officers do not have discretion to refuse registration of an FIR merely because they doubt the veracity of the complaint. The duty to register FIR arises the moment information disclosing a cognizable offence is received.
Although this judgment was delivered under the erstwhile Section 154 CrPC, the same principle continues under Section 173(1) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), which corresponds to mandatory registration of information relating to cognizable offences.
Thus, under the new criminal law regime, the constitutional mandate of Lalita Kumari continues to bind the police authorities, and refusal to register FIR despite disclosure of a cognizable offence amounts to illegal inaction.
4. Preliminary Inquiry – Limited Exception, Not the Rule
In Lalita Kumari (2014) itself, the Supreme Court carved out very limited categories where a brief preliminary inquiry may be conducted before registration of FIR, such as:
- matrimonial disputes,
- commercial transactions,
- medical negligence cases.
However, the Court cautioned that:
“Preliminary inquiry should not exceed seven days, and reasons must be recorded in writing.”
Under the BNSS framework, this judicial safeguard remains intact. Police officers cannot misuse the concept of preliminary inquiry as a shield to indefinitely delay or avoid FIR registration.
Any prolonged inquiry or informal “verification” without recording reasons is contrary to both Lalita Kumari and BNSS (2023).
5. Difference Between FIR and Complaint
A common misconception among citizens is that a written complaint automatically becomes an FIR. Legally, this is incorrect.
- A complaint is information given to the police or a Magistrate.
- An FIR is the formal registration of a cognizable offence.
If police refuse to convert a complaint into an FIR despite disclosure of a cognizable offence, legal remedies are available.
6. Police Power of Arrest – Not Absolute or Unrestricted
Arrest is a serious invasion of personal liberty. The Supreme Court has repeatedly held that arrest is not mandatory in every case, even where the offence is cognizable.
Police must satisfy themselves that:
- arrest is necessary for investigation, or
- There is a risk of absconding, or
- there is a likelihood of tampering with evidence.
Mechanical arrests are unconstitutional.
7. Constitutional Safeguards Against Arbitrary Arrest
Article 21 guarantees that no person shall be deprived of personal liberty except according to procedure established by law. This procedure must be fair, just and reasonable.
Arbitrary arrests violate:
- Article 21 (Right to Life and Liberty), and
- Article 22 (Protection against arbitrary arrest and detention).
The Supreme Court has laid down binding safeguards to prevent abuse of arrest powers.
8. Arrest With Warrant vs Arrest Without Warrant
Police may arrest:
- With a warrant issued by a Magistrate, or
- Without a warrant – only in circumstances expressly permitted by law.
Even an arrest without a warrant is not automatic. Police must record reasons justifying the necessity of arrest.
Failure to do so exposes the action to judicial scrutiny.
9. Importance of Legal Awareness at FIR and Arrest Stage
In actual practice, most violations of rights occur:
- at the police station level, and
- during initial detention.
Lack of awareness allows illegal practices to go unchecked. Courts have therefore emphasised citizen awareness as a vital component of criminal justice reform.
This foundational understanding of FIR and arrest laws is essential before examining procedural safeguards, remedies, and trial-stage protections, which are addressed in the next part.
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Refusal to Register FIR: Legal Remedies, Magistrate’s Powers and Police Accountability
1. Refusal to Register FIR — A Common but Illegal Practice
In everyday policing, refusal to register an FIR remains one of the most common complaints raised by citizens. Victims are often told that the matter is “civil”, “family-related”, or “not serious enough”, even when the information clearly discloses a cognizable offence.
Such refusal is contrary to the law. The Supreme Court has repeatedly clarified that the police have no discretion to refuse registration where the information reveals a cognizable offence. Administrative convenience or subjective assessment of truthfulness cannot override statutory duty.
2. First Remedy: Approaching the Senior Police Officer
When an officer-in-charge refuses to register an FIR, the law provides an immediate remedy: approaching the Superintendent of Police (SP) or other senior officers.
A written complaint may be sent:
- by post,
- by email (where permitted),
- or submitted in person.
If the senior officer is satisfied that the information discloses a cognizable offence, they may:
- direct registration of FIR, or
- order an investigation by a subordinate officer.
This remedy is intended to correct errors within the police hierarchy before judicial intervention.
3. Second Remedy: Application Before the Magistrate
If approaching senior police officers does not yield results, the aggrieved person may approach the Judicial Magistrate having jurisdiction.
An application can be filed seeking directions for the registration of an FIR and investigation. The Magistrate is empowered to:
- examine the complaint,
- apply the judicial mind, and
- Direct the police to investigate if a cognizable offence is disclosed.
This judicial oversight ensures that police inaction does not defeat access to justice.
4. Magistrate’s Power to Order Investigation
The Magistrate’s power to direct investigation is independent and supervisory in nature. It is exercised to ensure that:
- genuine offences are investigated, and
- police do not arbitrarily avoid statutory duties.
In practice, Magistrates often call for a status report or an Action Taken Report (ATR) before passing directions. This balances police autonomy with judicial control.
5. Preliminary Inquiry — Limits and Safeguards
The Supreme Court has recognised that in limited categories of cases, a preliminary inquiry may be permissible before registration of an FIR. However, this is an exception, not the rule.
Key safeguards include:
- Inquiry must be time-bound,
- reasons for inquiry must be recorded,
- inquiry cannot be used to test veracity or credibility.
Prolonged or open-ended inquiries are impermissible.
6. Consequences of Illegal Refusal to Register FIR
An illegal refusal to register FIR has serious consequences. Courts have held that such refusal:
- violates statutory duty,
- undermines the rule of law, and
- may attract departmental or legal action.
In appropriate cases, courts have directed:
- departmental proceedings against erring officers,
- compensation to victims for rights violations.
This accountability framework is crucial to deter misuse of power.
7. Police Accountability and Judicial Oversight
Police powers are not absolute. They are subject to:
- constitutional limitations,
- statutory controls, and
- judicial review.
Judicial oversight acts as a corrective mechanism, ensuring that law enforcement functions within legal bounds and respects fundamental rights.
In practice, courts play a critical role in:
- preventing abuse of discretion,
- enforcing procedural compliance,
- protecting citizen liberty.
8. Practical Guidance for Citizens
From a practical standpoint, citizens should:
- Give information in writing where possible,
- preserve proof of submission,
- remain calm and factual,
- seek legal remedies promptly if refused.
Delay often weakens remedies and complicates enforcement.
9. Transition to Arrest Safeguards and Citizen Rights
Understanding remedies against FIR refusal is essential, but equally important is awareness of rights at the stage of arrest. Most violations of liberty occur during arrest and detention, making safeguards at this stage critical.
The next part examines arrest procedures, constitutional safeguards, and binding Supreme Court guidelines governing police conduct at the time of arrest.
Registration of FIR under Section 175(3) BNSS (with Supreme Court Guidelines)
Under the newly enacted Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), Section 175(3) replaces the erstwhile Section 156(3) of the CrPC and introduces a structured procedural framework for judicial intervention in the event of refusal by police to register an FIR. While the fundamental principle that an FIR must be registered where a cognizable offence is disclosed remains unchanged (corresponding to Section 173(1) BNSS), the new provision adds procedural safeguards designed to balance the rights of complainants with protection against frivolous or malicious filings. Qualegal+1
In the landmark case of Om Prakash Ambadkar v. The State of Maharashtra & Ors., (2025) 2025 INSC 139 (decided on 2 Feb 2025), the Supreme Court of India elaborated on the scope and manner in which Section 175(3) BNSS is to be applied. The Bench comprising Justice J.B. Pardiwala and Justice R. Mahadevan clarified that Section 175(3) imposes additional conditions beyond the older CrPC paradigm:
- Prior Recourse to Superintendent of Police (SP)
Before seeking judicial intervention under Section 175(3), the complainant must first approach the Superintendent of Police or an officer of equivalent rank upon refusal by the Officer in Charge of the police station to register an FIR. This procedural step codifies the earlier judicial practice of requiring complainants to first avail administrative remedies. Qualegal - Mandatory Affidavit Support
The application under Section 175(3) must be supported by an affidavit affirming the truth of the allegations. This statutory requirement mirrors earlier judicial expectations (e.g., Priyanka Srivastava v. State of U.P., 2015), but is now embedded in legislation to deter casual or vexatious filings. Qualegal - Hearing of the Police Officer Before Direction
Unlike the CrPC regime, where Magistrates could direct FIR registration without hearing the police, the BNSS mandates that magistrates consider the submissions of the concerned police officer before issuing any direction under Section 175(3). This obligation ensures that both sides are heard and that judicial orders are reasoned and reflective of the application of the mind, not mechanical. Qualegal - Judicial Application of Mind / Reasoned Orders
The Supreme Court held in Om Prakash Ambadkar that Magistrates must issue reasoned, speaking orders when considering applications under Section 175(3). Mere acceptance of the complainant’s narrative without judicial scrutiny and explanation is insufficient. Magistrates are required to analyse the complaint, the affidavit, and the police officer’s submissions before exercising their power. Verdictum+1
The Court set aside an order of FIR registration issued by the Magistrate under the old CrPC standard because:
- The Magistrate acted mechanically, without proper judicial reasoning or consideration of police submissions.
- Several alleged offences were non-cognizable or lacked essential ingredients, and the order did not demonstrate that a prima facie case had been made out. Verdictum
In Om Prakash Ambadkar (2025) INSC 139, the Supreme Court emphasised that the shift to Section 175(3) BNSS is not merely semantic but substantive, reflecting Parliament’s intent to build in accountability, procedural order, and fairness in the FIR registration process. The judgment reinforces that:
- Complaints not supported by truthful affidavits should not form the basis for FIRs.
- Magistrates must engage in a judicial inquiry before directing an investigation.
- Police submissions should be invited and reflected in the order. Qualegal
In practice, this means that a complainant seeking FIR registration under Section 175(3) BNSS must follow the steps in this order:
- File a written complaint with the Officer in Charge of the Police Station disclosing a cognizable offence.
- If refused, approach the Superintendent of Police for review or direction.
- Prepare an application under Section 175(3) BNSS, supported by an affidavit.
- Submit the application to the appropriate Magistrate with copies of prior correspondence to the police.
- The Magistrate must:
- Hear the police officer’s explanations and objections,
- Conduct any preliminary judicial inquiry deemed necessary, and
- Pass a reasoned order, not a mechanical direction.
- Only after such hearings and reasoning, if the Magistrate finds disclosure of a cognizable offence and absence of sufficient justification for police refusal, should order the registration of FIR and direct investigation.
This structured approach codifies the procedural protections intended by the BNSS and upheld by the Supreme Court, ensuring that truthful complaints proceed, while frivolous or inadequately supported allegations are filtered at an early stage.
Key Judicial Citation
📌 Om Prakash Ambadkar v. The State of Maharashtra & Ors., 2025 INSC 139 (2 Feb 2025): Supreme Court clarifies that Section 175(3) BNSS requires judicial application of mind, hearing of a police officer, affidavit support and reasoned orders before directing registration of FIR. Qualegal+1
Arrest Without Warrant: Legal Limits, Citizen Safeguards and Supreme Court Guidelines
1. Arrest Without Warrant — A Power That Must Be Used Sparingly
An arrest without a warrant is one of the most intrusive powers given to the police. It directly interferes with a person’s personal liberty, which is protected under Article 21 of the Constitution of India. For this reason, the Supreme Court has consistently held that arrest is an exception, not the rule.
In practice, however, arrests are often made mechanically—sometimes to show quick action, sometimes under pressure, and sometimes due to lack of legal understanding. Such arrests have been repeatedly deprecated by constitutional courts.
2. Arrest Is Not Mandatory in Every Cognizable Offence
A widespread misconception is that once an offence is cognizable, the police must arrest the accused. This understanding is legally incorrect.
The Supreme Court has clarified that even in cognizable offences, the police must first assess the necessity of arrest. An arrest should be made only when it is required for purposes such as:
- proper investigation,
- prevention of further offence,
- preventing absconding,
- preventing tampering with evidence, or
- ensuring presence before the court.
Mechanical or routine arrests violate constitutional safeguards.
3. Recording of Reasons for Arrest — A Mandatory Safeguard
The police are required to record reasons for arrest as well as reasons for not arresting an accused. This requirement serves two purposes:
- It enforces accountability, and
- It enables judicial scrutiny.
In real court practice, failure to record reasons often results in:
- grant of bail at the earliest stage, and
- adverse remarks against the investigating officer.
This safeguard ensures that arrest decisions are reasoned, not arbitrary.
4. Rights of an Accused at the Time of Arrest
An arrested person is entitled to certain non-negotiable rights, including:
- to be informed of the grounds of arrest,
- to inform a friend or relative of the arrest,
- to consult a legal practitioner,
- to be produced before a Magistrate within 24 hours.
Denial of these rights renders the arrest illegal, irrespective of the seriousness of the offence.
5. Arrest Memo and Documentation — Practical Importance
The Supreme Court has directed that an arrest memo must be prepared at the time of arrest. This memo should contain:
- date and time of arrest,
- place of arrest,
- name of arresting officer,
- signatures of witnesses.
In practice, absence or manipulation of arrest memos becomes a strong ground to challenge the legality of arrest.
6. Special Protection for Women, the Elderly and Vulnerable Persons
Arrest powers are subject to additional safeguards when it comes to women, senior citizens, and vulnerable persons.
For women:
- arrest at night is generally prohibited except in exceptional circumstances,
- presence of a woman police officer is required.
Courts have repeatedly emphasised that dignity and safety must be preserved during arrest, irrespective of the allegations.
7. Role of the Magistrate After Arrest
Judicial oversight begins immediately after arrest. The Magistrate is duty-bound to:
- examine the legality of the arrest,
- ensure compliance with safeguards,
- protect against illegal detention.
In practice, Magistrates often ask:
- whether reasons for arrest are recorded,
- whether an arrest was necessary,
- whether the rights of the accused were respected.
This judicial check is a crucial safeguard against abuse of police power.
8. Illegal Arrest and Its Legal Consequences
An arrest made in violation of constitutional or statutory safeguards is illegal. Courts have not hesitated to:
- grant compensation for illegal arrest,
- initiate departmental action,
- pass strictures against erring officers.
An illegal arrest not only harms the individual but also undermines public confidence in law enforcement.
9. Practical Advice for Citizens and Accused Persons
From a practical perspective, citizens should:
- remain calm and cooperative,
- assert their rights respectfully,
- note names and details of officers,
- Seek legal assistance at the earliest.
Knowledge of rights often prevents escalation and misuse of power.
10. Transition to Detention, Bail and Post-Arrest Remedies
Understanding arrest safeguards is essential, but protection of liberty does not end at arrest. Detention, remand, and bail are equally critical stages where judicial oversight plays a decisive role.
The final part examines post-arrest procedures, bail rights, illegal detention remedies, and practical outcomes, completing the picture of police powers and citizen safeguards.
Detention, Remand, Bail, Remedies Against Illegal Detention and Practical FAQs
1. Detention After Arrest – Legal Meaning and Limits
An arrest does not give the police unlimited power to detain a person. Detention after arrest is strictly regulated by constitutional and statutory safeguards.
Article 22 of the Constitution mandates that:
- No person can be detained without being informed of the grounds of arrest, and
- every arrested person must be produced before a Magistrate within 24 hours.
Detention beyond this period without judicial authorisation is illegal, irrespective of the nature of the allegations.
2. Production Before Magistrate and Judicial Scrutiny
The first production of an arrested person before the Magistrate is a crucial constitutional checkpoint.
At this stage, the Magistrate must:
- examine the legality of arrest,
- verify compliance with arrest safeguards,
- ensure that detention is not arbitrary.
In practice, Magistrates are expected to apply their independent judicial mind, not act as a mere rubber stamp for police requests.
Failure of the Magistrate to perform this duty has been criticised by the Supreme Court in multiple cases.
3. Police Remand and Judicial Custody – The Difference
After production, the Magistrate may:
- grant police custody remand, or
- Send the accused to judicial custody.
Police remand is granted only when:
- custodial interrogation is genuinely required, and
- Reasons are clearly recorded.
Judicial custody, on the other hand, means detention in jail under court supervision. Police custody is an exception and must be justified strictly.
4. Right to Bail – A Fundamental Aspect of Personal Liberty
The Supreme Court has repeatedly emphasised that “bail is the rule, jail is the exception.”
Grant of bail depends on:
- nature of offence,
- severity of punishment,
- likelihood of absconding,
- possibility of tampering with evidence.
Mechanical denial of bail violates personal liberty and constitutional guarantees.
5. Default Bail and Protection Against Indefinite Detention
Where an investigation is not completed within the prescribed period, the accused acquires a statutory right to default bail.
This right is not discretionary. Once conditions are satisfied, the court must grant bail.
The Supreme Court has clarified that default bail is an indefeasible right, forming part of the guarantee of personal liberty.
6. Illegal Detention – Legal Remedies Available
Illegal detention strikes at the heart of constitutional governance. Remedies include:
- filing a writ petition for habeas corpus,
- seeking compensation for violation of fundamental rights,
- initiation of departmental action against responsible officers.
Courts have awarded compensation in appropriate cases to deter abuse of power and to reinforce accountability.
7. Role of Legal Counsel During Detention
An arrested person has the right to:
- consult a legal practitioner, and
- have legal assistance during critical stages.
While the continuous presence of counsel during interrogation is not mandatory, the denial of access altogether renders the process suspect and unconstitutional.
8. Common Myths About Police Detention and Bail
Some common misconceptions include:
- “Police can detain for any number of days” – Incorrect
- “Bail is a favour” – Incorrect
- “Judicial custody means guilt” – Incorrect
Such myths often lead to unnecessary fear and misuse of authority.
9. Practical Guidance for Citizens and Families
From a practical standpoint:
- insist on production before the Magistrate within 24 hours,
- seek immediate legal advice,
- maintain written records where possible,
- avoid confrontation, but assert rights calmly.
Awareness is the strongest safeguard against illegal detention.
10. Frequently Asked Questions (FAQs)
Q1. Can police detain a person without producing before a court?
No, beyond 24 hours detention without a Magistrate’s order is illegal.
Q2. Is police remand automatic?
No, it must be justified with reasons.
Q3. Can bail be denied routinely?
No, bail must be decided on judicial principles.
Q4. What remedy exists against illegal detention?
Habeas corpus and compensation petitions are available.
Q5. Does judicial custody imply guilt?
No, guilt is determined only after trial.
Key Supreme Court Judgments Governing FIR, Arrest & Police Powers in India
For ready reference, the Supreme Court of India has laid down binding principles governing FIR registration, arrest, and police powers through the following landmark judgments:
- Lalita Kumari v. Government of Uttar Pradesh
(2014) 2 SCC 1
➝ Registration of FIR is mandatory where a cognizable offence is disclosed. - Priyanka Srivastava v. State of Uttar Pradesh
(2015) 6 SCC 287
➝ Applications seeking judicial direction for FIR must be supported by an affidavit. - Om Prakash Ambadkar v. State of Maharashtra
2025 INSC 139 (BNSS, 2023)
➝ Magistrates must pass reasoned orders under Section 175(3) BNSS after hearing police. - Joginder Kumar v. State of Uttar Pradesh
(1994) 4 SCC 260
➝ Arrest must be justified and necessary, not routine. - Arnesh Kumar v. State of Bihar
(2014) 8 SCC 273
➝ Arrest is not mandatory in every cognizable offence. - DK Basu v. State of West Bengal
(1997) 1 SCC 416
➝ Laid down mandatory arrest safeguards to protect personal liberty. - Sanjay Chandra v. CBI
(2012) 1 SCC 40
➝ Reaffirmed that bail is the rule, jail is the exception.
These judgments continue to govern police powers under the new criminal law regime (BNSS, 2023) and are binding on all authorities.
11. Final Conclusion: Balancing Police Power and Citizen Liberty
Police powers of FIR registration, arrest, and detention exist to maintain law and order. However, unchecked power leads to abuse.
The Supreme Court has consistently acted as the constitutional guardian, ensuring that:
- police powers are exercised responsibly, and
- Personal liberty is not sacrificed at the altar of convenience.
Awareness of rights, coupled with judicial oversight, is essential to preserve the balance between State authority and individual freedom.
Author Note
Written by Adv. Sanjay Sharma, Practising Advocate in India, with experience in Constitutional, Criminal and Civil law.
Disclaimer
This article is intended for legal awareness only and does not constitute legal advice. Each case depends on its own facts and applicable law.
Written by Adv. Sanjay Sharma, Practicing Advocate in India, with experience in Civil, Criminal, GST and IBC matters. This article is written for legal awareness purposes only and does not constitute legal advice.
