An internet satirical page, Cockroach Janta Party (CJP), has managed to do something unprecedented in India. Through sustained public protest, it forced the resignation of a Union Minister. The protests, however, were no velvet revolution. There were clashes between the police and protesters, lathi charges, arrests, and, inevitably, a series of FIRs against those participating in the agitation.
As negotiations progressed, the Union Government and several State Governments offered what appeared to be a major concession. They assured the protesters that all FIRs registered during the agitation would be “withdrawn.” That promise should have made every lawyer in the country pause. Not because withdrawing the FIRs would be undesirable, but because the promise itself shows either a startling ignorance of criminal law or something far more troubling.
The obvious question is this – Can a Government promise to withdraw an FIR? The answer is no. Not politically and definitely not legally.
The Curious Case of the FIR
Ironically, the expression First Information Report is not defined anywhere in either the Code of Criminal Procedure, 1973, or the Bharatiya Nagarik Suraksha Sanhita, 2023.
Even Sections 154 CrPC and 173 BNSS, under which FIRs are registered, never use the phrase “First Information Report.” The only place those words appear in the entire procedural code is Section 217 CrPC (Section 230 BNSS), where an FIR is merely listed among the documents that must be supplied to the accused.
An FIR is also not substantive evidence. The Supreme Court has repeatedly held, including in Harkirat Singh v. State of Punjab, (1997) 11 SCC 215, that an FIR may only be used to corroborate or contradict its maker during trial. But while an FIR may not prove guilt, it performs a far more important function. It sets the criminal law in motion. And once the criminal law is set in motion, it cannot simply be switched off because the Government suddenly feels generous. Like striking a match near a keg of gunpowder, once an FIR is registered, the legal machinery begins operating under statute, not political negotiations.
There is no provision anywhere in Indian criminal procedure that permits the withdrawal of an FIR. Which makes the promise to “withdraw FIRs” legally impossible.
So what actually happens after an FIR?
Contrary to popular belief, there are only a handful of legally recognised ways by which an accused can eventually escape the rigours of criminal prosecution. None of them involve “withdrawing the FIR.” Here are six identified manners in which a person can escape finally landing in a jail due to an FIR –
1. The Police may file a Closure Report
After investigation, the police may conclude that no sufficient material exists to prosecute the accused and submit what is commonly known as a closure report. Sounds simple enough. Except it isn’t. As the Supreme Court held in Abhinandan Jha v. Dinesh Mishra, (1967) 3 SCR 668, a closure report is nothing more than the opinion of the investigating agency. The Magistrate is not bound by it.
The Court may reject it and order further investigation. The Court may even take cognizance despite the police saying no offence is made out. So when the Government promises that FIRs will disappear because the police will close them, it is actually making two promises it has absolutely no authority to make. First, that the police will submit closure reports. Second, that the Courts will obediently accept them.
If the Government genuinely possesses such certainty, then congratulations, It has just admitted that both the investigating agency and the judiciary function according to executive wishes.
That is nothing less than admitting a constitutional scandal.
2. The Court may discharge the accused
The Court may conclude that there is no prima facie case and discharge the accused. Notice something? The Court does it. Not the Government. No Minister can negotiate a judicial order across a conference table.
3. Withdrawal of Prosecution
Section 321 CrPC (Section 360 BNSS) allows the Public Prosecutor or Assistant Public Prosecutor to withdraw from prosecution. This provision is perhaps the favourite refuge of those defending the Government’s promise.
Unfortunately, the law refuses to cooperate.
In Sheo Nandan Paswan v. State of Bihar, (1987) 1 SCC 288, the Supreme Court made it abundantly clear that the Public Prosecutor is not a post office for Government instructions. The Prosecutor must independently apply his mind. The Court must independently apply its mind.
Both must be satisfied that withdrawal is justified. The Government’s opinion is relevant but it is not decisive. Therefore, promising protesters that prosecution will definitely be withdrawn amounts to saying something rather extraordinary.
It amounts to saying that Public Prosecutors will happily abandon their statutory independence whenever the Government asks nicely, and Courts will dutifully approve whatever lands on their desks. If that is indeed how the system works, we have problems far bigger than the protests.
4. Compounding of offences
Certain offences may be compounded under Section 320 CrPC (Section 359 BNSS). However, Offences against the State, serious offences, and offences not listed in the statute simply cannot be compounded because the parties have reached an understanding. As held in Gulab Das v. State of Madhya Pradesh and Ramgopal v. State of Madhya Pradesh, courts cannot magically convert non-compoundable offences into compoundable ones merely because everyone would find that convenient.
5. The High Court may quash the proceedings
Under Section 482 CrPC (Section 528 BNSS), High Courts possess inherent powers to quash criminal proceedings in order to prevent abuse of process or secure the ends of justice. The exercise of that power is governed by principles laid down in State of Haryana v. Bhajan Lal and reaffirmed in Neeharika Infrastructure Pvt. Ltd. v. State of Maharashtra.
Again, The High Court quashes proceedings. The Government does not. No Cabinet meeting can pass a resolution directing a High Court to exercise its inherent jurisdiction.
6. The accused may simply be acquitted
Finally, the trial may conclude with an acquittal. The State may produce weak evidence or it may produce no evidence. Witnesses may turn hostile. The prosecution may collapse spectacularly. Yet even then, the FIR was never “withdrawn.” The criminal process simply reached its legal conclusion.
So what exactly is the Government promising?
Nothing that the law actually allows it to guarantee. Every legally recognised route requires independent decision-making by either the police, the Public Prosecutor, or the Courts. The executive controls none of these outcomes with the certainty reflected in its political assurances. Which leaves us with two possibilities. Either the Government does not understand how criminal procedure works, Or it does, and this second possibility is infinitely more disturbing.
Because then the promise carries an implication that no constitutional democracy should ever be comfortable hearing. It suggests that investigations, prosecutions, and judicial outcomes can all be choreographed once the political executive decides a particular case deserves to disappear.
That is not just plainly and simply illegal, It is an admission that the Functionaries designed to function independently are expected to operate on executive command.
One sincerely hopes that is not what the Government intended to communicate. Political negotiations may end protests. They cannot rewrite criminal procedure. And if they can, then the FIRs are the least of our constitutional worries.
The Irony Nobody Seems to Notice
There is a delicious irony in all of this. A protest movement that brought the Government to its knees ended up accepting a promise that, if taken literally, is itself an admission of executive overreach into the criminal justice system.
Imagine someone saying: “I’m sorry I assaulted you. To make up for it, I’ll illegally influence the police, the prosecutor, and the Courts. I hope the citizens are happy”.
