This article has been written by Akshita Jain, pursuing the Certificate Course in Advanced Criminal Litigation & Trial Advocacy from LawSikho.

Introduction

It would be no surprise if you come across a crime in today’s world. Assume that your boss has sexually harassed you, or a theft has taken place at house, or you witnessed two persons kidnapping a child, in all these situations, the first thought that would come to your mind would be going to the police station and file a complaint.

Suppose that you go to the police station carrying all that distress with you and you request the police officer to register your complaint but guess what, the officer denies to file your complaint leaving you in despair. Now, what do you do? Do you have any alternative other than filing the complaint in the police station? Does the law provide us with any remedy for such instances? Whether such an act of a police officer legal or illegal? These are some of the most basic questions that would hit one’s mind in such a situation and this article is going to answer them all.

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Besides, the complaint that has been talked about above, is called a ‘First Information Report’ (FIR). The refusal of registration of an FIR by the police is not something unusual, rather it is a common notion. So, understandably the law provides us with a remedy for such circumstances. This article deals with various aspects such as the legal provisions relating to registration of FIR, the sequel and remedy regarding the non-registration of FIR and how it causes lawlessness among people.

The legislative provisions

What is an FIR?

A First Information Report, as the name suggests, is the first document that is formulated in a criminal proceeding. The contents of an FIR consist of the information regarding the commission of an offence, which is provided to the police. The police begin the investigation of a specific crime on the basis of the FIR registered for the same. Therefore, an FIR plays a crucial role with regards to the procedure of criminal law.

In which cases can an FIR be registered?

Section 154(1) of the Code of Criminal Procedure, 1973 clearly points out that an FIR could be registered only in case of cognizable offences. Cognizable offences refer to those offences where the police are permitted to arrest the accused without a warrant. In such offences, the police can Suo moto take the cognizance of the offence and it does not require any sanction from the court in order to begin the investigation. On the other hand, non-cognizable offences are those in which police cannot make a conviction without taking a prior assent from the court. Schedule I of the Criminal Procedure Code clearly distinguishes as to which offences are cognizable and which are not.

Who can file an FIR?

With regards to the persons who have the authority to file an FIR for a specific offence, either the victim himself/herself, or a friend or relative of the victim, or any other person who has the knowledge that the crime has been committed can file an FIR. The person who informs the police about the commission of the offence is called an informant.

What is the procedure for registration of an FIR?

According to the sub-section (1) of Section 154 Cr.P.C., when an informant informs the officer-in-charge of a police station about the commission of a cognizable offence, it is the duty of the said officer to record the same in the book that has been prescribed to them by the State Government for this purpose. If the informant has provided the information in oral form, then the officer must reduce it in written form or get it reduced in written form under his supervision. As soon as the writing down is done, the content must be read to the informant and then get it signed by the informant once he is satisfied by the same. 

After all these steps are over, then the substance would be entered under the daily diary register. However, if the information has already been given in the form of a written complaint which is signed by the informant, then the entry could be made in the daily diary register straight away. 

This section further provides that if an offence under section 326A, 326B, 354, 354A, 354B, 354C, 354D, 376, 376A, 376B, 376C, 376D, 376E or 509 of the Indian Penal Code, has been alleged to have committed against a woman, and the said woman herself is the informant in the case, such information is to be recorded by a female police officer.

Moreover, if the victim against whom any of the offences mentioned above has alleged to have been committed, and due to which the victim has acquired either physical or mental disability which could either be temporary or permanent, then the recording of the information must be done at victim’s place or any other place as per victim’s convenience.

Furthermore, as per Section 154(2) Cr.P.C., the police officer is supposed to provide a copy of FIR to the informant chargeless. 

Remedy of non-registration of FIR

Refusal to register FIR: legal or illegal?

The foremost question that arises here is, whether the officer-in-charge of the police station can deny registering the FIR in any circumstance? The answer to this is affirmative. The denial by the police officer to file an FIR is considered legal typically in two scenarios, firstly, if the complaint is about an awfully trivial issue, or secondly, if that particular police station does not have the territorial jurisdiction of that offence. 

With regards to the first situation, it is unusual for a cognizable offence to be a nugatory matter so this condition would hardly apply here. However, the refusal to register FIR based on the second ground is pretty common and the solution to which is the “Zero FIR”. The concept of a Zero FIR is that if a person is unable to file an FIR in the police station with correct territorial jurisdiction for a particular offence due to any reason, then he may file the same in any other police station within his/her reach, and such police station would later transfer the report to the police station which actually has the jurisdiction for that offence. However, if the police officer refuses to lodge the report on some unexplainable grounds or even without giving any reason, it’d definitely be considered illegal. Then the aggrieved would have to seek remedy for the same as provided under the law, which has been discussed next.

Statutory Remedy

As provided by Clause (3) of Section 154 of Cr.P.C., if a person is refused by an officer-in-charge of a police station to register his report, then such person has an option to send the content of the information of crime in written form to the concerned Superintendent of Police via post so that the information could be recorded and investigated upon. 

After receiving the information, if the SP is contended with regards to the disclosure of a cognizable offence based on such information, then he would either examine the case by himself or command any other subordinate police officer to do the same in accordance with the Code. Also, the investigating officer would have the same powers as the officer-in-charge of the police station with respect to the investigation. 

Judicial Remedy

If the remedy u/s 154(3) Cr.P.C. doesn’t prove to be effective, then the informant is advised to directly file a private complaint before the concerned Judicial Magistrate under Section 156(3) r/w Section 190 of the Criminal Procedure Code. Under this, the said Magistrate is empowered to take the cognizance of the case on receiving such a complaint and direct the police to investigate the case.

Latika Kumari case

The most crucial landmark judgement when it comes to matters relating to the registration of FIR is the Latika Kumari v. Govt. of UP & Ors. The Supreme Court in this judgement laid down eight guidelines that are to be followed by the police till date. The essential question that arose in the case of Latika Kumari was, “whether it is binding for the police to lodge an FIR when it is informed about the occurrence of an offence which is cognizable in nature?”. The Apex Court affirmatively answered this question and ruled that it is obligatory for the police to lodge an FIR on receiving information that discloses the commission of a cognizable offence. 

The Court further held that if it is clear that a cognizable offence has been committed, the police is not required to do any kind of preliminary inquiry. It means that the preliminary inquiry is valid merely to the extent of determining whether the offence committed is cognizable or not. Furthermore, the Apex Court clearly mentioned the kind of cases in which the preliminary inquiry could be conducted by the police, which are family disputes, commercial offences, medical negligence cases, corruption cases and cases with abnormal delay. Also, the Court ordered that the preliminary inquiry must be started within 7 days of receiving the information of offence.

Consequences of non-registration of FIR

The police officers who are at default regarding the refusal of registration of FIR in case of cognizable cases may face several consequences owing to their inaction. If no action is taken by the concerned authorities even after the aggrieved had gone for all the above-mentioned statutory as well as judicial remedies then he may opt for the following actions.

The aggrieved person may file a writ petition in the respective High Court for the issuing of Writ of Mandamus against the delinquent police officers, and then the Court would direct them to come up with the reasoning as to why they did not lodge the report.

Another alternative that the aggrieved person could go for is to file a Writ Petition in the respective High Court to seek compensation if such non-lodging of the report has caused the person deprivation of his right to life and personal liberty as guaranteed by Article 21 of our Constitution.

Additionally, the criminal law of our country also deals with this deplorable practise which is carried out quite ordinarily these days. Section 166A of the Indian Penal Code lays down punishment for a public servant who fails to record information. Specifically, sub-section (3) of the section provides that failure on the part of a public servant to register any information u/s 154(1) of the Cr.P.C. with relation to the offences u/s 326A, 326B, 354, 354B, 370, 370A, 376, 376A, 376AB, 376B, 376C, 376D, 376DA, 376DB, 376E or 509 of the IPC, would attract this section and the said public servant shall be punished with rigorous imprisonment for a term which must not be less than 6 months but may extend to 2 years, and he shall also be liable to fine.

Conclusion

The practice of refusal on the part of police officers to register FIR, no matter how barbaric it seems, is pretty common. The reasons could be many, such as protecting the accused persons who are powerful and have high contacts or harassing the poor victims, or irresponsible behaviour of public servants, etc. Whatever may be the reason, it is the victim who suffers. The victim who already has been through trauma due to the commission of an offence is put through the whole agony once again when s/he is denied for lodging the report. 

Whenever a cognizable offence is committed, the filing of an FIR is technically the first stage for initiation of criminal proceedings, and hence the first step for seeking justice. It means when the aggrieved person is denied to record his complaint, he is denied justice altogether. There is no doubt that various remedies have been provided to aggrieved persons for the said circumstances by the law, but all this running around to seek these remedies merely to get the complaint filed sometimes delays the justice to such an extent that it feels denied. 

It is indisputable that this action of police officers is among the most atrocious practices of our legal system because to report an offence that is committed to someone is one of the most basic rights of that individual and ironically it is taken away by our protectors themselves. This practice clearly leads to lawlessness and hence it must be put an end to.

References

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