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:
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.
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