The formal lodging of a First Information Report (FIR) in India marks the commencement of the adversarial criminal justice process. Often, this immediate initiation overlooks opportunities for amicable resolution, particularly in matters potentially arising from misunderstandings or relational issues. The concept of Pre-FIR Counselling, which refers to facilitated communication and negotiation under the aegis of law enforcement or designated authorities before FIR registration to explore non-penal solutions, presents a potential avenue for such resolutions.

However, this practice lacks explicit and comprehensive codification within the newly enacted Bharatiya Nyaya Sanhita (BNS) and Bharatiya Nagarik Suraksha Sanhita (BNSS). Nevertheless, the underlying principles of Pre-FIR Counselling gain implicit recognition through judicial pronouncements, police circulars, and legislative initiatives promoting Alternative Dispute Resolution (ADR) and aiming to reduce the judicial burden. Despite this implicit support, no specific legal provision formally recognizes or mandates it as a standardized practice within the Indian criminal justice system, rendering its legality contingent upon the specific context of its application.

The Legal Basis and Evolving Jurisprudence:

While a dedicated statute for Pre-FIR Counselling remains absent, its legality and implementation draw support from various existing legal provisions and judicial interpretations:

• Section 35 of the Bharatiya Nagarik Suraksha Sanhita (BNS), 2023: Section 35 BNSS empowers police officers to issue a notice of appearance to a person against whom a reasonable complaint has been made, credible information received, or reasonable suspicion exists of a cognizable offence, instead of immediate arrest. This provision implicitly acknowledges the possibility of inquiry and potential resolution before formal arrest and investigation. Pre-FIR Counselling can be logically conducted during this preliminary stage of inquiry.
   
• Section 53 of the BNSS: While Section 53 of the BNSS specifically mandates the medical examination of an arrested person to ensure due process and safeguard individual rights post-arrest, its underlying spirit of prioritizing individual well-being and seeking less intrusive means within the legal framework can be analogously extended to support the advocacy for preliminary assessment and counselling before arrest; both approaches emphasize the importance of protecting individual liberties and avoiding potentially drastic and irreversible actions when less coercive alternatives might be appropriate and effective in resolving disputes or ascertaining the necessity of formal criminal proceedings.
   
• Inherent Powers of the Police: As primary custodians of law and order, police officers possess inherent powers to inquire into complaints and explore avenues for amicable settlement before registering an FIR, particularly in cases of less serious offences. This pragmatic approach often aims to maintain peace and harmony within the community.
   
• Judicial Pronouncements: The Supreme Court and various High Courts have, on numerous occasions, emphasized the need for preliminary inquiry and exploring ADR mechanisms before resorting to arrests and formal investigations, especially in matrimonial disputes and commercial matters with criminal overtones. Landmark judgments have cautioned against the automatic registration of FIRs in all cases and have encouraged police to conduct preliminary inquiries to ascertain the veracity of allegations and the potential for settlement.
  
  For instance, while the Supreme Court in Lalita Kumari v. Government of Uttar Pradesh (2014) made FIR registration mandatory for cognizable offences, it also permitted preliminary inquiry in specific categories of cases within a limited timeframe. Earlier, in Rajesh Sharma v. State of U.P. (2017), the court had suggested referring complaints under Section 498A IPC to family welfare committees before FIR registration, although this was later modified in Social Action Forum for Manav Adhikar v. Union of India (2018) to ensure such mechanisms did not impede access to justice.
   
• Police Circulars and Guidelines: Many state police departments in India have issued circulars and guidelines encouraging or mandating Pre-FIR Counselling in specific categories of cases like matrimonial disputes, minor property offences, and neighbourhood quarrels; states where this practice has been actively promoted include Delhi, Madhya Pradesh, Maharashtra, Uttar Pradesh, Tamil Nadu, Telangana, and Kerala, among others, with each state often outlining specific procedures, roles for police officers, and the involvement of stakeholders to facilitate amicable settlements before the formal registration of an FIR.
   
• Legislative Initiatives Promoting ADR: The increasing focus on ADR mechanisms in India, evidenced by statutes like the Arbitration and Conciliation Act, 1996, and the recent Mediation Act, 2023, provides a broader legal context that supports the concept of resolving disputes outside the formal court system, including at the pre-litigation and pre-investigation stages.

Legality Analysis:

The legality of Pre-FIR Counselling can be nuanced and depends on the specific context:

• Informal, Not Illegal, But Potentially Problematic: While Pre-FIR counselling (e.g., police suggesting dialogue) isn't inherently illegal due to the absence of a specific law prohibiting it, it lacks a solid legal foundation for offenses requiring a formal FIR. Undue delay or prevention of FIR registration, when legally mandated for cognizable offences, could be construed as unlawful or a dereliction of duty, potentially leading to legal action such as a writ petition under Article 226 of the Constitution.
   
• Acceptable in Specific Situations: Pre-FIR interventions are often tolerated and even promoted in administrative contexts for certain types of disputes, like matrimonial or minor conflicts, to minimize court cases. However, this practice remains largely discretionary and outside the structured legal system.
   
• Consent is Key: Parties can privately engage in counselling or mediation before involving the police, provided both agree. This, however, isn't legally considered "Pre-FIR" counselling in the formal sense; instead, it represents a private attempt at resolution that may ultimately obviate the need for police intervention.

The Process and Modalities of Pre-FIR Counselling:

The actual implementation of Pre-FIR Counselling may vary depending on the jurisdiction, the nature of the complaint, and the specific guidelines in place. However, a general framework may often involve the following steps:

• Receipt of Complaint: Upon receiving a complaint that discloses a potential cognizable offence, the police officer may, instead of immediately registering an FIR, decide to conduct a preliminary inquiry or initiate counselling, especially in categories of cases where it is deemed appropriate.
• Preliminary Assessment: The police officer conducts a preliminary assessment of the complaint to understand the nature of the allegations, the relationship between the parties, and the potential for amicable resolution.
• Issuance of Notice: The police may issue notices to both the complainant and the accused, requesting their presence for a counselling session.
• Facilitated Dialogue: A police officer (often a designated officer trained in counselling or mediation) or a panel consisting of police officers and community members facilitates a dialogue between the parties. The aim is to understand their respective perspectives, identify the underlying issues, and explore potential solutions.
• Mediation and Negotiation: The facilitator assists the parties in exploring options for settlement, which may involve apologies, restitution, compromise, or other mutually agreeable terms.
• Documentation of Outcome: If a resolution is reached, the terms of the settlement are documented in writing and signed by both parties. This agreement may be taken on record by the police.
• Closure of Complaint (Conditional): If a settlement is reached and the complainant is satisfied, the police may choose not to register an FIR or may close the complaint after recording the settlement. However, this is often contingent on the nature of the offence and the satisfaction of the authorities that the settlement is genuine and not obtained under coercion.
• Registration of FIR (Failure of Counselling): If the counselling efforts fail to yield a resolution, or if the allegations disclose a serious and non-compoundable offence, the police will proceed with the registration of an FIR and initiate a formal investigation.
   

The Genesis and Rationale Behind Pre-FIR Counselling:

The need for Pre-FIR Counselling arises from several compelling factors:

• Overburdened Criminal Justice System: Indian courts face an immense backlog of cases, straining judicial resources and causing protracted delays. Pre-FIR mechanisms can help filter out less serious or compoundable offences, decongesting the system and allowing it to focus on more serious crimes.
• Potential for Misuse of Criminal Law: Criminal law's coercive power can sometimes be misused for personal vendettas, harassment, or undue pressure in civil disputes. Pre-FIR intervention can act as a safeguard against such misuse by providing an opportunity for objective assessment and mediation.
• Focus on Restorative Justice: Modern justice approaches increasingly emphasize restorative principles, aiming to repair harm and facilitate reconciliation rather than solely focusing on punishment. Pre-FIR Counselling aligns with this philosophy by encouraging dialogue and finding solutions that address the complainant's grievances while offering a path forward for the accused.
• Amicable Resolution in Certain Cases: Many disputes, especially those from matrimonial discord, minor altercations, or commercial disagreements, have underlying relational or transactional elements best addressed through facilitated dialogue and negotiation rather than adversarial criminal litigation.
• Reduced Trauma and Costs: Initiating a criminal investigation can be traumatic and costly for both parties, regardless of the outcome. Pre-FIR resolution can mitigate this trauma and reduce the financial and emotional burden.

 

Challenges and Concerns Regarding Pre-FIR Counselling:

Despite its potential benefits, the implementation of Pre-FIR Counselling faces several challenges and concerns:

• Lack of Uniformity and Statutory Backing: The absence of a comprehensive statutory framework leads to inconsistencies in application and procedure across different states and even within the same state, creating ambiguity and potential for abuse.
• Potential for Coercion and Pressure: Police, aiming to reduce workload, might pressure complainants to settle even if they are not genuinely satisfied. Similarly, the accused might feel compelled to agree to unfavourable terms due to fear of formal criminal proceedings.
• Issue of Power Imbalance: Significant power imbalances between parties can exist in disputes. Without proper safeguards and trained facilitators, the counselling process might inadvertently disadvantage the weaker party.
• Defining the Scope of Applicable Offences: Determining which offences are suitable for Pre-FIR Counselling requires careful consideration. While appropriate for minor and compoundable offences, extending it to serious and non-compoundable crimes could undermine criminal justice principles and societal safety.
• Training and Sensitization of Police Personnel: Effective Pre-FIR Counselling demands specific skills in communication, mediation, and conflict resolution from police officers. Adequate training and sensitization are crucial for fairness and impartiality.
• Transparency and Accountability: Maintaining transparency in the Pre-FIR Counselling process and establishing accountability mechanisms are essential to prevent misuse of authority and protect the rights of both parties.
• Legal Validity of Settlements: The legal enforceability of settlements reached during Pre-FIR Counselling needs clear definition. While such settlements can bar further prosecution in certain cases, their legal standing in all circumstances requires clarification.
   

The Way Forward: Strengthening the Framework for Pre-FIR Counselling

To fully realize the potential of Pre-FIR Counselling while addressing existing challenges, the following steps are crucial:

• Legislative Recognition and Guidelines: Enacting a specific legal framework or incorporating comprehensive provisions within the BNSS to govern Pre-FIR Counselling would provide statutory backing, ensure uniformity, and establish clear procedures and safeguards.
• Clear Categorization of Offences: Defining specific categories of offences amenable to Pre-FIR Counselling, considering compoundability and the seriousness of the crime, is essential.
• Independent Counselling Mechanisms: Exploring the possibility of establishing independent counselling centres or involving trained mediators and community members, rather than solely relying on police officers, could enhance neutrality and impartiality.
• Mandatory Training for Police Personnel: Imparting specialized training to police officers on communication skills, mediation techniques, and restorative justice principles is crucial for effective facilitation.
• Emphasis on Voluntariness and Informed Consent: Ensuring both parties participate voluntarily and with a full understanding of their rights and options is paramount.
• Recording and Documentation: Maintaining detailed records of the counselling process, including discussions, settlement terms, and reasons for failure if no settlement is reached, is essential for transparency and accountability.
• Legal Scrutiny of Settlements: Establishing mechanisms for judicial or quasi-judicial review of settlements, particularly in cases involving vulnerable individuals, can safeguard against coercion and ensure fairness.
• Awareness and Outreach: Creating public awareness about the benefits and procedures of Pre-FIR Counselling can encourage greater participation and utilization.

Conclusion:
Pre-FIR Counselling holds significant promise for amicable dispute resolution, reducing the burden on the criminal justice system, and fostering restorative justice in India. However, its current status lacks formal legal recognition as a standardized process, with its legality primarily resting on its consensual and informal nature as a private initiative to resolve disputes before FIR registration, rather than being an enforced barrier to statutory obligations under the BNSS.

Therefore, its application remains situational and discretionary, necessitating a more robust and comprehensive legal framework to ensure its fair, effective, and legally sound implementation for a more efficient, humane, and accessible justice system.

Written By: Md.Imran Wahab, IPS, IGP, Provisioning, West Bengal
Email: imranwahab216@gmail.com, Ph no: 9836576565