Centre’s assurance cannot override statutory processes governing withdrawal of FIRs, experts say

Even as the Cockroach Janta Party (CJP) contended that the Supreme Court’s interim order permitting the States to proceed with the investigation into the FIRs registered against student protesters was in “direct contradiction” to the Centre’s assurance that no punitive action would be taken against them, legal experts said the assurance could not override the statutory provisions governing the criminal process.

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Once an FIR has been registered, they pointed out, the investigating agency may file a closure report if it finds no material to proceed, or the public prosecutor may seek withdrawal from prosecution in accordance with law.

Notably, during the hearing on Tuesday (July 28, 2026), Solicitor-General Tushar Mehta, appearing for the Union government and the Delhi Police, made no reference to any assurance by the Centre that protesters would be granted amnesty. Instead, he submitted that the violence witnessed during the protests may have been caused by “anti-social elements” and miscreants who had infiltrated the demonstrations. The submissions came as the Bench arrived at a prima facie view that an independent inquiry may be required into allegations of police excesses as well as attacks on police personnel.

“It is doubtful whether the Union government can give an assurance to the court on behalf of the State governments regarding the closure of criminal cases registered by the State police. Except for the Delhi Police, the police are under the control of the State governments, not the Centre,” said Abhay S. Oka, a former judge of the Supreme Court. “Moreover, once an FIR has been registered, it cannot simply be cancelled or deregistered,” he added.

Mr. Oka explained that if the investigating agency finds no evidence against the accused, it may file a closure report under Section 193 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS). Alternatively, if the prosecution seeks to withdraw the case before the judgment is pronounced, the public prosecutor may move an application under Section 360 of the BNSS, he said.

He, however, stressed that both these routes remain subject to judicial scrutiny. “Even if the investigating officer files a closure report, the court is not bound to accept it. After hearing the complainant, it may either accept or reject the report in accordance with law. Likewise, if the public prosecutor seeks to withdraw a case before judgment is pronounced, the court can grant consent only after giving the victim an opportunity of being heard,” he said.

In its interim order, the Bench led by Chief Justice of India (CJI) Surya Kant permitted the investigation into the FIRs to continue, while restraining the police from taking any coercive action against “protesting students” unless they had criminal antecedents. It also directed the immediate release of all minors arrested in connection with the demonstrations.

No coercive action

Senior advocate Sanjay Hegde said the interim order reflected the court’s attempt to balance the interests of the investigation with the need to protect those who had participated in peaceful protests. “When a court passes an interim order, it strives to strike a balance so that no injustice is meted out. Possibly, the apex court did not want to pass a blanket order protecting everyone from punitive action, including those with criminal antecedents. Somebody with a history of violence pretending to be a protester should not be granted interim relief,” he said.

Mr. Hegde also said that the direction restraining the police from taking coercive action does not render the FIRs infructuous. “The investigating agencies can continue the investigation without arresting the suspects. They can either place a chargesheet or a closure report at the end of such a probe. Arrest is not mandatory in an investigation,” he said.

Advocate Nipun Saxena said the exclusion of persons with criminal antecedents from the protection of the interim order was consistent with the well-established principles governing the grant of interim relief. “The existence of prior criminal antecedents is not an artificially created check or caveat. It is a well-established norm,” he said.

The Centre’s assurance has translated into different courses of action across the States. The governments of Bihar and Assam late on Monday announced that they would initiate the process for withdrawal of the cases registered against students who had participated in the agitations. In West Bengal, the government on Tuesday said it would not take “coercive action” against students, but cited the Supreme Court’s interim order to clarify that the protection “shall not extend to persons having criminal antecedents”. Maharashtra Chief Minister Devendra Fadnavis, meanwhile, directed the State Home Department to initiate the process of withdrawing the cases registered against the protesters.

“While State governments are free to act on the Centre’s assurance, the Centre itself cannot issue any directive requiring them to do so. At best, it can issue an advisory, as any mandatory direction would run contrary to the principles of federalism. ‘Public order’ and ‘police’ fall within the State List under the Seventh Schedule to the Constitution and are therefore within the exclusive legislative and executive domain of the States,” Mr. Saxena added.