Vijay Pal Dalmia, Advocate
Supreme Court of India & Delhi High Court
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Vivekananda Institute Of Professional Studies
FIR means 'First Information Report.' FIR is the first document prepared in criminal proceedings. FIR is a document that places on record the victim's side of the story. FIR acts as a tool on which police authorities base and start their investigations. Hence, it is pretty clear that an FIR plays a vital role in criminal proceedings.
Now, as the importance of an FIR is established, one must understand the legal perspectives attached to it. Section 1541 of the Criminal Procedure Code (hereinafter referred to as CrPC), 1973, makes it clear that an FIR can be registered in cognizable offenses2 only. Cognizable crimes are those offenses in which a police officer can arrest an accused without a warrant. Due to the nature of gravity involved in the offences, police authorities can arrest without a warrant under CrPC. The classification of cognizable and non-cognizable offences is furnished under the first schedule of CrPC.
For a better understanding section 154 CrPC is extracted below:
Information in cognizable cases
(1) Every information relating to the commission of a cognizable offense, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction, and be read Over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf.
(2) A copy of the information as recorded under sub-section (1) shall be given forthwith, free of cost, to the informant.
(3) Any person aggrieved by a refusal on the part of an officer in charge of a police station to record the information referred to in subsection (1) may send the substance of such information, in writing and by post, to the Superintendent of Police concerned who, if satisfied that such information discloses the commission of a cognizable offense, shall either investigate the case himself or direct an investigation to be made by any police officer subordinate to him, in the manner provided by this Code, and such officer shall have all the powers of an officer in charge of the police station in relation to that offense.
Who can lodge an FIR?
Anyone who has information about the commission of a cognizable offense can lodge an FIR. It is not necessary that he/she should be the victim or eye-witness himself. A police officer can lodge an FIR on his own if he comes to know about the Commission of a cognizable offence. In Hallu & Ors. vs. the State of M.P,3 it was held that "Section 154 does not require that the Report must be given by a person who has personal knowledge of the incident reported. The section speaks of information relating to the commission of a cognizable offense given to an officer in charge of a police station."
How to lodge an FIR?
The process of filing an FIR is very simple. It is as simple as narrating a story to the police. The informant has to visit the police station (ideally near the crime scene) and furnish all the information he/she has pertaining to the commission of an offence. Section 154 of the CrPC gives a choice to the informant to furnish information orally or in writing. If the information is disclosed orally then, the report must be reduced to writing by the police officer himself or under his direction. The report must be read out to the informant. Every report whether reduced to writing or submitted in written form, shall be signed by the informant.
How to register non-cognizable offenses?
- In non-cognizable offenses, when an informant approaches the officer in charge, the officer enters such information in his book (maintained as per the format prescribed by the State Government)4.
- Secondly, a police officer can begin with the investigation for a non-cognizable offense, only after receiving an order from the magistrate under section 155(3) of the CrPC.
The investigating powers of a police officer are the same in cognizable and non-cognizable offenses, except the power to arrest without a warrant. The Hon'ble Supreme Court in State Of West Bengal & Ors vs. Swapan Kumar Guha & Ors5 held that "there is no such thing like unfettered discretion in the realm of powers defined by statutes and indeed, unlimited discretion in that sphere can become a ruthless destroyer of personal freedom. The power to investigate into cognizable offenses must, therefore, be exercised strictly on the condition on which it is granted by the Code".
Hence, it can be concluded that if a person wants to register a complaint regarding the commission of a non-cognizable offense, he/she has to first register a complaint with the magistrate having proper jurisdiction. There are no strict norms pertaining to the format of a complaint. A complaint can be in the form of an affidavit or a petition as the case may be. After receiving the complaint, the magistrate will decide upon the issue of cognizance. If the magistrate is satisfied that a non-cognizable offense has been committed, he will order for further investigations.
What are the remedies available if the police refuse to lodge our FIR?
- Reason- It is not always illegal when the officer in charge refuses to lodge an FIR. As it all depends upon the reason because of which the police officer refuses to lodge an FIR. If the police officer refuses to lodge an FIR because the case does not fall within their jurisdiction, deals with an offense which is non-cognizable in nature or it is outside their legal capacity to take cognizance of such an offense, in such circumstances the refusal to lodge an FIR is legitimate and justified.
- Although, if an FIR is refused on the ground of jurisdiction, it is mandatory for the police officer to record information about the commission of a cognizable offense and forward the same to the police station having proper jurisdiction. Otherwise, it would amount to dereliction of duty6.
- Statutory Remedies
- Under section 154(3) CrPC – When an informant's right to register an FIR is refused, he/she can approach the Superintendent of Police and submit the substance of such information in writing by post. If the Superintendent of Police is satisfied that such information discloses the commission of a cognizable offense then, he might investigate the case himself or direct an investigation to be made by any police officer subordinate to him.
- Under section 156(3), read with section 190 CrPC – If an informant remains unsatisfied even after pursuing the remedy under section 154(3), he/she can further pursue the remedy mentioned under section 156(3) read with section 190 CrPC.
- This is a different channel to get the FIR registered. This remedy is similar to the process of registering a complaint for non-cognizable offenses. As through this channel, a magistrate first take cognizance of an offense under section 190 and then order for consequential investigations under section 156(3).
- Under section 200 CrPC – A complaint can be submitted to the magistrate orally or in writing under section 200 of the CrPC. After the submission of a complaint, the magistrate will conduct a hearing, deciding upon the issue of cognizance. In this channel, the complainant and the witnesses thereof are examined on oath in front of the magistrate.
- Judicial remedy- Mandamus is one of the prerogative writs issued by the superior Courts (High Court or Supreme Court), which is in the form of a command to the State, its instrumentality or its functionaries as the case may be, to compel them to perform their constitutional/statutory/public duty7. Hence, a writ of mandamus can be filed under Article 226 or Article 32 of the Constitution of India, directing the police officials to perform their duty and register an FIR.
Can I pursue the Judicial Remedy before the Statutory Remedy?
It is a well settled principle that an alternative remedy is not an absolute bar while filing a writ petition. In other words, it is nowhere expressly mentioned that a writ petition cannot be filed if there exists an alternative remedy. Although, on perusal of the various High Court's and Supreme Court's decisions, it can be concluded that ordinarily, the courts prefer and advice to first exhaust the remedies available to an informant. Some of the examples of such decisions are mentioned below:
- Mamta Prajapati v. State of Madhya Pradesh 8
- Sakiri Vasu Vs. State of U.P9
- Aleque Padamsee and others Vs. Union of India and others, reported in 10
- Sudhir Bhaskar Rao Tambe Vs. Hemant Yashwant Dhage and Ors11
This is not the first time that such a contention is raised before the court. This issue has been addressed by various online platforms12.
Information furnished through a telephonic message, would constitute a valid Fir or not?
There is not straight jacket answer to this proposition. Time and again it has been held by the Hon'ble Courts of our country that a telephonic conversation is generally made with an intention to gather police at the crime scene. In such cases, the telephonic conversation made between the informant and the police officer would not amount to registration of an FIR.
Whereas, the Hon'ble Supreme Court of India in Sidhartha Vashisth: Alias Manu Sharma vs State (NCT of Delhi)13 held that "Phone calls made immediately after an incident to the police constitutes an FIR only when they are not vague and cryptic. Calls purely for the reason of getting the police to the scene of crime do not necessarily constitute the FIR". Hence, as per authors interpretation, a telephonic conversation would amount to the constitution of an FIR if the information furnished about the crime is unambiguous, clear and in detail that satisfies the above-mentioned test(not vague and cryptic).
It is very important for every individual to understand the basic concepts relating to an FIR. A complainant can understand his own case only after understanding these fundamental laws. Even a brief understanding of these concepts can be very helpful while deciding the proper course of action.
3. 1974 AIR 1936: 1974 SCR (3) 652: https://main.sci.gov.in/jonew/judis/6310.pdf : SUPREME COURT OF INDIA
4. Section 155(1) CrPC https://www.oecd.org/site/adboecdanti-corruptioninitiative/46812507.pdf
5. 1982 AIR 949, 1982 SCR (3) 121: https://main.sci.gov.in/jonew/judis/9936.pdf: SUPREME COURT OF INDIA
6. State of A.P. vs. Punati Ramulu, AIR 1993 SC 2644; 1993 Cr LJ 3684: 1994 Supp (1) Supreme Court Cases 590: 1994 Supreme Court Cases (Cri) 734: SUPREME COURT OF INDIA
7. https://mphc.gov.in/upload/gwalior/MPHCGWL/2016/WA/379/WA_379_2016_FinalOrder_20-Dec-2016.pdf: MADHYA PRADESH HIGH COURT (GWALIOR BENCH)
8.2019SCCOnLine MP 2477:Writ Petition No. 18595/2019: Decided on September 6, 2019: MANU/MP/0932/2019: https://mphc.gov.in/upload/gwalior/MPHCGWL/2019/WP/18595/WP_18595_2019_FinalOrder_06-Sep-2019.pdf: MADHYA PRADESH HIGH COURT
9. MANU/SC/8179/2007: https://main.sci.gov.in/jonew/judis/29986.pdf: SUPREME COURT OF INDIA
10. MANU/SC/2975/2007: https://main.sci.gov.in/jonew/judis/29220.pdf: SUPREME COURT OF INDIA
11. MANU/SC/1328/2010: https://main.sci.gov.in/jonew/bosir/orderpdf/1090497.pdf :SUPREME COURT OF INDIA
13. AIR 2010 SC 2352: 2010 ( 2 )ACR 1645 (SC): MANU / SC / 0268 / 2010: ( 2010 ) 6 SCC 1: https://main.sci.gov.in/jonew/judis/36237.pdf: SUPREME COURT OF INDIA
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