Zero FIR: purview, analysis and propositions

By: Ridhi Aggarwal and Vedant Bisht

Although the term First Information Report (“FIR”) hasn’t been explicitly mentioned in the Code of Criminal Procedure, 1973 (“CrPC”), S.154 of CrPC provides for the process of registering the information relating to the commission of a cognizable offence.

The concept of Zero FIR eliminates the barriers of territorial jurisdiction while lodging an FIR at a police station. Regardless of the area where the crime was committed, the police officer is bound to register a Zero FIR under the number 00. If the crime has not occurred in the jurisdiction of the said Police Station, then after registering the Zero FIR, the same has to be transferred to the concerned Police Station for investigation, where the offence has been committed.

What is the Mandate for Zero FIR?

“Zero Fir” has not been mentioned anywhere in CrPC or any other central statute or legislation in India. The concept gained relevance after the Nirbhya rape case, when the Justice Verma Committee recommended it amongst many other criminal reforms. The Ministry of Home Affairs issued an advisory to all the police stations to lodge FIR’s irrespective of the territorial jurisdiction and transfer the FIR, as per S.170 of CrPC, to the station having adequate jurisdiction. The judiciary has been proactive in furthering the rights of the victim since more than a decade. The cases of State v. Harnam Singh and the State v. Satish Kumar, decided by the Delhi District Courts witness incidents where a Zero FIR has been lodged. The Delhi High Court in Kirti Vashisht v. state and Ors., held that even if the incident of crime has taken place outside the jurisdiction of the police station, it is bound to register a Zero FIR. The Supreme Court of India in the State of Andhra Pradesh vs Punati Ramulu and Others, held that it was a dereliction of duty on the part of constable who refused to lodge an FIR contending lack of territorial jurisdiction.

The advisory issued by the Ministry of Home Affairs is merely an advisory and is not binding on any authority. While there exists an absolute lacuna in legislations with regards to Zero FIR in law, the ruling by the Supreme Court having precedential value becomes binding on all the lower courts and the Supreme Court itself. However, the question whether the lacuna in the law needs to be filled can be answered by understanding the doctrine of separation of powers which is a part of basic structure of the Indian Constitution.

The legislature is invested the function of making laws by enacting legislations/statutes. The judicial pillar of democracy exercises the power to adjudicate disputes and review the functioning of legislation and executive. While the legislature enacts laws, the judiciary interprets and reviews them. The judiciary determines the validity of any law enacted by the legislature and even has the power to partially/completely nullify them, but cannot make laws in the first place. While the legislature is the primary source of law, courts have increasingly become involved in the process of making law, which is termed as judicial activism. The primary reason why legislature is capable of making laws is because India is a democracy and consequently laws are made by the people. Moreover, the rulings by the court are retrospective in nature, that is the rights of the parties is determined after the cause of action has taken place, while the laws made by legislature are proactive in nature that is people are made aware of the law before it becomes applicable to them.

Thus, given the democratic nature of the Constitution, it is imperative that a legislation giving mandate to the concept of Zero FIR is enacted. Although, the courts have been giving mandate to this concept since more than a decade, it is crucial for the legislature to fill the lacuna in law. However, before determining the nature of provision that has to be enacted it is pertinent to consider the possibility of abuse of power.

Bimla Rawat and Ors. V. State and Anr is an important case study to understand how the concept of zero FIR is abused by individuals and police officers. In this case, the court determined that the Delhi police had registered the FIR and conducted the investigation only because of the influence and power exercise by the complainant. The registration of FIR in Delhi (Zero FIR) was held valid but the investigation was considered an abuse of power. Therefore, the provision that has to be enacted must in a way create a deterrent effect for individuals and police officers to prevent them from abusing the law.

Determining the nature of the provision

This part of the article attempts to determine the scope of the provision, that is to analyse the situations that would warrant the use of zero FIR. Thus, three possible types of provisions have been with legal consequences that might follow, have been discussed below.  

1. A blanket provision would enable an individual to file a Zero FIR for cognizable offences. The scope of this provision would be similar to S.154 which allows filing an FIR for any cognizable offence. The advisory issued by the Ministry of Home Affairs had laid down a similar scope for filing an FIR. The first schedule of the Indian Penal code classifies all types of offences in two categories- cognizable and non-cognizable. Thus, it can easily be referred to while determining whether an offence is cognizable. It is to be noted that while such a broad provision works in the favour of victims by furthering the scope of their right to file a Zero FIR, it is prone to abuse of power by individuals who are in power.

1. A provision covering only certain offences under its ambit would have a restricted scope as compared to the first possibility. This provision would simply enlist the offences for which a person could register a Zero FIR. For other offences, the individual wouldn’t be able to register Zero FIR. The decision to decide which offences to cover can be left to the prudence of the law-makers to cover only the most heinous crimes that require immediate attention. While such provisions reduce the possibility of abuse of power by limiting the situations in which a Zero FIR can be filed, it poses another problem. With the advent of internet, new types of crimes emerge every day. The possibility that a new type of crime emerges after the enactment of the provision cannot be ignored. Further crimes commissioned through internet can be heinous enough to require immediate attention for example, sexually assaulting someone online, threatening to leak compromising pictures on the internet. Moreover, since the identity and location of internet criminals are hard to locate, it is difficult to establish the territorial jurisdiction of the place where the crime was committed. Therefore, if a heinous crime, not included in the provision, emerges and takes place after the enactment of the provision, it would lead to serious miscarriage of justice since the victim wouldn’t be able to lodge a Zero FIR.

1. The third possibility is to enact a provision that doesn’t define the scope of the provision per se but lays down a standard instead. The provision could insert specific words that would set a qualifying criteria, for example- ‘reasonable complaint’ or ‘credible information’. From the terms of this provision, a Zero FIR could be lodged for the commission of any crime that falls under the scope of the standard laid down and meet the qualifying criteria. Since no specific crime has been enlisted, every type of crime could be interpreted to be covered under the ambit of the provision. It would be left to the discretion of the police officers and later the judiciary to decide whether the situation was an emergency one or not. While such a provision would resolve the issue arising in the second possibility since no type of crime would be delisted from the provision, leaving it to the discretion of officers and judiciary would lead to two other major problems. Firstly, the police officers would arbitrarily deny registering a Zero FIR contending that the said offence doesn’t meet the qualifying criteria set by the preceding terms. Secondly, inserting ambiguous words to set a qualifying criteria makes it cumbersome for the judiciary to define the scope of the provision. In a situation where the victim is necessitated to file a Zero FIR, keeping in mind the facts of the case, denying this option to the individual would be tantamount to miscarriage of justice.

Therefore, the problems existing in the second and third possibilities rule them out as viable options to define the scope of the statute. Out of all the possibilities, the first possibility seems the most viable, i.e. to enact a blanket provision that covers all types of cognizable offences under its ambit. Although, the first possibility is devoid of the problems that exist in the rest, the likelihood of the abuse of power still exists. The issue that arises is to decide whether the Zero FIR lodged by the victim was genuine or merely an abuse of power to delay the investigation process. It has already been noted that an attempt to restrict the scope of the provision to curb this abuse is not only futile but poses other challenges as well.

Therefore, the legislature could enact the provision in the form of a standard, without prior definition, and leave it to the discretion of the judiciary to decide. Kaplow explains the two approaches two law-making; enacting rules or standards. “While rules entail ex-ante determination of the law’s content, standards entail an ex-post-facto determination of the law’s content”. Although laying down rules is effectively laying down prospective laws, laying down standards becomes an effective approach towards law making when it is not possible to enumerate all types of situations. It is difficult to determine, prior to the enactment of statute, the different kind of situations of individuals abusing their power to lodge a Zero FIR with mala-fide intentions. Moreover, the facts and circumstances of each case heavily influence the determination of whether the zero FIR was lodged with a mala fide intention or not. Therefore, enacting a blanket provision and leaving it to the discretion of the judiciary to decide whether the Zero FIR was lodged with a bona fide or mala fide intention is the most feasible option.

It is further recommended that after it has been determined by the judiciary that a zero FIR was lodged with a mala-fide intention and in collusion with unethical police officers, the individuals and the officer so involved should be penalised. This anyhow would come under the ambit of Anti-corruption laws and the accused police official should be tried under the Prevention of Corruption Act, for criminal misconduct by a public servant.

Conclusion

The recently emerged practice of Zero FIR, that is filing an FIR in a police station outside the territorial jurisdiction of the place of the crime. It is apparent that the concept of zero FIR holds much significance in today’s time, with more cognizable offences being committed each day. While considering this concept as an instrumental step towards safeguarding the victim’s access to swifter delivery of justice, the likelihood of this concept being abused cannot be ruled out. However, the possibility of exploitation only calls for taking measures that would curb the misuse.           

It is noted that the absolute lacuna in law, i.e., the absence of provisions giving mandate to Zero FIR is concerning and needs rectification. After establishing that there is a need of provision, the article determines the scope of the provision by taking into account three possibilities and discusses the ramifications in each. It is determined that a blanket provision encapsulating all cognizable offences under its ambit is the most viable option. The article recommends to leave it to the judiciary to decide if a case of Zero FIR has been lodged with a mala-fide intention and penalise the officers under Prevention of Corruption Act.

[Ridhi Aggarwal is a second year student at National Law University Delhi. Vedant Bisht (Author 2) is a second year student at National Law School of India University Bangalore.]