Remedies if FIR not lodged?

TOPIC 3: REMEDIES IF FIR NOT LODGED

PROBLEM OF NOT LODGING FIR

Section 154 of CrPC states that the every information relating to commission of cognizable offence shall be recorded in writing by the officer in charge of police station. The use of word ‘shall’ here shows that it is mandatory for the police to register FIR if the information relates to commission of cognizable offence. This same point was emphasised by SC in the famous case of Lalita Kumari.

However, many a times the police makes one or the other excuse for not registering FIR. They refuse to register FIR on the ground that the case does not fall under their jurisdiction and the complaint should be made to other police station. They sometimes refuse recording FIR by stating that they will first verify the information presented and then record the FIR. Many a times, they refuse to register FIR because of the pressure from the influential party involved as accused in the case.

Taking note of the above situations, the SC in the case of Lalita Kumari v. Govt of UP AIR 2012 SC 1515 held as follows:

i) Registration of FIR is mandatory under Section 154 of the Code, if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation.

ii) If the information received does not disclose a cognizable offence but indicates the necessity for an inquiry, a preliminary inquiry may be conducted only to ascertain whether cognizable offence is disclosed or not.

iii) If the inquiry discloses the commission of a cognizable offence, the FIR must be registered. In cases where preliminary inquiry ends in closing the complaint, a copy of the entry of such closure must be supplied to the first informant forthwith and not later than one week. It must disclose reasons in brief for closing the complaint and not proceeding further.

iv) The police officer cannot avoid his duty of registering offence if cognizable offence is disclosed. Action must be taken against erring officers who do not register the FIR if information received by him discloses a cognizable offence.

v) The scope of preliminary inquiry is not to verify the veracity or otherwise of the information received but only to ascertain whether the information reveals any cognizable offence.

vi) As to what type and in which cases preliminary inquiry is to be conducted will depend on the facts and circumstances of each case. The category of cases in which preliminary inquiry may be made are as under:

a) Matrimonial disputes/ family disputes

b) Commercial offences

c) Medical negligence cases

d) Corruption cases

e) Cases where there is abnormal delay/laches in initiating criminal prosecution, for example, over 3 months delay in reporting the matter without satisfactorily explaining the reasons for delay.

The aforesaid are only illustrations and not exhaustive of all conditions which may warrant preliminary inquiry.

vii) While ensuring and protecting the rights of the accused and the complainant, a preliminary inquiry should be made time bound and in any case it should not exceed 7 days. The fact of such delay and the causes of it must be reflected in the General Diary entry.

viii) Since the General Diary/Station Diary/Daily Diary is the record of all information received in a police station, we direct that all information relating to cognizable offences, whether resulting in registration of FIR or leading to an inquiry, must be mandatorily and meticulously reflected in the said Diary and the decision to conduct a preliminary inquiry must also be reflected, as mentioned above.

 VARIOUS REMEDIES IF POLICE REFUSE TO LODGE FIR

Following are the various remedies with the informant if the police do not register FIR:

1. Section 154(3): If the officer in charge refuses to register a first information report about commission of a cognizable offence, then as per section 154(3) crpc the informant can submit the information in writing and post it to the Superintendent of Police. If, upon analysis of the complaint, the S.P. is satisfied that the information discloses a cognizable offence, he may either investigate the case himself or direct his subordinate to register the FIR and proceed with the investigation in the matter.
2. SAkiri Vasu case: The informant can file a complaint to the Judicial Magistrate u/s 156(3) read with Sec. 190 of the criminal procedure thereby praying FIR. to be registered by the police and investigation into the matter.
3. A Writ Petition can be filed in the High Court for the issuance of Writ of Mandamus against the defaulting Police officers directing them to register the FIR.
4. Also complaint under section 166A of the Indian Penal Code against police officer who refuses to register FIR.
5. Section 482: inherent powers
6. Section 36 crpc

Does an accused have a right to get copy of the FIR registered by police?

Once FIR is registered, Section 154(2) CrPC specifies that a copy of information shall be given to the informant, free of cost. The question arises that whether the accused is also entitled to a copy of FIR and if so, under which provision of law?

Following are the various sections which deal with the right of accused to get a copy of FIR.

1. Section 207: Where a charge sheet has been filed on completion of investigation by the police, clause (ii) of Section 207 of the Cr.P.C. requires the Magistrate concerned to furnish to the accused a copy of the FIR. This section applies at the stage when cognizance of offence has been taken by the magistrate. Section 207 deals with the stage before trial.
2. Section 173: A combined reading of sub-sections (5) and (7) of Section 173 of the Cr.P.C. shows that, after filing of the charge sheet, the police may also supply copy of the FIR to the accused person along with other papers of the charge sheet. This section comes into play once the investigation is over and the police is submitting final police report to the magistrate.

Thus, we can see that the aforesaid provisions of Section 207 and Section 173 of the Cr.P.C. are attracted only after filing of the charge sheet by the police. There is no specific provision in the Cr.P.C. requiring supply of the FIR to the accused person before the filing of the charge sheet or immediately after registration of the FIR.

Decision of the Delhi High Court in Court on its own motion v. State, 2010 that FIR is a “public document” within the meaning of Section 74 of the Evidence Act. Therefore, as required under the provisions of Section 76 of the Evidence Act, certified copy of the FIR has to be given to the accused person on his request on payment of the applicable legal fees by every public officer (such as the officer in charge of the police station) having the custody of such document.

It is vitally necessary that an accused person should be granted a copy of the first information at the earliest possible state in order that he may get the benefit of legal advice.

   QUASHING OF FIR

Quashing of FIR refers to taking back the FIR, or legally annulling the FIR. There is no specific provision in the law which provides for quashing of FIR and hence this remedy can be exercised under Section 482 of CrPC using the inherent power of High Court.

Parbatbhai Aahir Vs. State of Gujarat, 2017 (SC):

Supreme Court Elucidate 10 Points For Quashing Of F.I.R Under Section 482 Of CRPC

1. Section 482 preserves the inherent powers of the High Court to prevent an abuse of the process of any court or to secure the ends of justice. The provision does not confer new powers. It only recognises and preserves powers which inhere in the High Court;
2. The invocation of the jurisdiction of the High Court to quash a First Information Report or a criminal proceeding on the ground that a settlement has been arrived at between the offender and the victim is not the same as the invocation of jurisdiction for the purpose of compounding an offence. While compounding an offence, the power of the court is governed by the provisions of Section 320 of the Code of Criminal Procedure, 1973. The power to quash under Section 482 is attracted even if the offence is non-compoundable.
3. In forming an opinion whether a criminal proceeding or complaint should be quashed in exercise of its jurisdiction under Section 482, the High Court must evaluate whether the ends of justice would justify the exercise of the inherent power;
4. While the inherent power of the High Court has a wide ambit and plenitude it has to be exercised;
   1. to secure the ends of justice or
   1. to prevent an abuse of the process of any court;
5. The decision as to whether a complaint or First Information Report should be quashed on the ground that the offender and victim have settled the dispute, revolves ultimately on the facts and circumstances of each case and no exhaustive elaboration of principles can be formulated;
6. In the exercise of the power under Section 482 and while dealing with a plea that the dispute has been settled, the High Court must have due regard to the nature and gravity of the offence. Heinous and serious offences involving mental depravity or offences such as murder, rape and dacoity cannot appropriately be quashed though the victim or the family of the victim have settled the dispute. Such offences are, truly speaking, not private in nature but have a serious impact upon society. The decision to continue with the trial in such cases is founded on the overriding element of public interest in punishing persons for serious offences;
7. As distinguished from serious offences, there may be criminal cases which have an overwhelming or predominant element of a civil dispute. They stand on a distinct footing in so far as the exercise of the inherent power to quash is concerned;
8. Criminal cases involving offences which arise from commercial, financial, mercantile, partnership or similar transactions with an essentially civil flavour may in appropriate situations fall for quashing where parties have settled the dispute;
9. In such a case, the High Court may quash the criminal proceeding if in view of the compromise between the disputants, the possibility of a conviction is remote and the continuation of a criminal proceeding would cause oppression and prejudice; and
10. There is yet an exception to the principle set out in propositions (viii) and (ix) above. Economic offences involving the financial and economic well-being of the state have implications which lie beyond the domain of a mere dispute between private disputants. The High Court would be justified in declining to quash where the offender is involved in an activity akin to a financial or economic fraud or misdemeanour. The consequences of the act complained of upon the financial or economic system will weigh in the balance.