Tazeen Ahmed......
, Intern at ubAdvocate
(Based on the YouTube video LINKS- https://youtu.be/8fAhcmiOdo8
,https://youtu.be/nzdVGx14HJU , https://youtu.be/GTdVj0CBlHo ,
https://youtu.be/JcWjDzWuHcc , https://youtu.be/MBMIp5vd4UQ of Jeevan
Prakash, AOR, Supreme Court)
An In-Depth Study of First Information Report
Introduction
The number of FIRs not registered in India is estimated to be equivalent to the
number of FIRs actually registered. According to the Indian Institute of Public
Opinion, non-registration has become a common practice in police stations.
Non-registration of FIR reflects misconduct of police officers as well serious
abuse of his authority. Due to such callous attitude, it becomes necessary to
provide a grieving person recourse to other mechanisms. The reformed
mechanisms have been laid down in:
I. Home Ministry Guidelines 2013
II. Law Commission Report no. 41
III. Parliament’s Provisions (prevailing over state Govts.)
Is Registration of an FIR by a Police Officer mandatory?
According to Section 154 (1) of Code of Criminal Procedure, it is mandatory for
a police officer to register cases involving cognizable offences, i.e., offences
inviting arrest without a warrant or serious offences punishable by minimum 3
years imprisonment.
Further, the reasonableness or credibility of the info not a condition precedent for
registration of a case. The police officers are bound to register the complaint even
if the information given is incomplete. Only in cases involving very trivial matter,
the police can refuse to register an FIR.
Its mandatory character has been highlighted in following cases, namely:
• In State of Haryana and others v. Ch. Bhajan Lal and Others1 , it was
stated that if any information disclosing a cognizable offence is laid before
an officer in charge of a police station satisfying the requirements of
section 154(1) of the Criminal Procedure Code, the said police officer has
no other option except to enter the substance thereof in the prescribed form
, that is to say, to register a case on the basis of such information.
• In State of Maharashtra & Ors v. Shiv das Singh Chavan and Others2,
the correlation of FIR and Rule of law has been point out: “…This legal
framework is a very vital component of the rule of law in order to ensure
prompt investigation in cognizable cases to maintain law and order.”
• In Superintendent of Police, C.B.I. v. Tapan Kr. Singh3, it was held that
if the police officer suspects the commission of a cognizable offence, he
becomes bound to immediately register it and conduct an investigation,
irrespective of whether he has full details regarding the matter or not.
Preliminary Inquiry
Regarding Preliminary Inquiry, the court has held in a leading case, Lalita
Kumari v. Govt. of U.P. & Ors.4:
1. Registration of FIR is mandatory
2. No preliminary inquiry is permissible in such a situation
3. However, in certain types of cases, preliminary inquiry may be allowed to
be conducted, which will depend on the facts and circumstances of each
case.
4. The category of cases in which preliminary inquiry may be made:
i. Matrimonial Dispute
ii. Medical Negligence: In Jacob Matthew v. State of Punjab5, pre-
inquiry was sanctioned in medical negligence cases considering the
need to protect doctors from unjust prosecutions. It was held that
before accusing a doctor of negligence or omission, it is required to
obtain an independent and competent medical opinion.
1
1992 AIR 604
2
2011 (1) SCC 577
3
Appeal (crl.) 938 of 1995
4
Writ Petition (Criminal) No. 68 of 2008
5
Appeal (crl.) 144—14 of 2004
iii. Commercial Offences: In Ramdev Food Products Private v. State
of Gujarat6, pre-inquiry was considered essential for commercial
offences.
iv. Corruption Cases: In Shashikant v. Central Bureau of
7
Investigation , it was mentioned that the C.B.I. manual provides
for the procedure or manner in which complaints are to be
proceeded against Public Servants. It provided for preliminary
enquiry.
v. Delayed Reporting: In State of A.P. v. M. Madhusudhan Rao8 ,
the court stated that delay in lodging the complaint brings about
doubt regarding the very object of it. Therefore, it considers it
important to first inquire about and be satisfied about the
genuineness of the complaint.
In the State of Telangana v. Sri Managipet Sarveshwar Reddy9, it was decided
that only in some situations, including Matrimonial/ Family disputes,
Commercial Offences, Medical Negligence cases, Corruption cases etc.
preliminary inquiry may be conducted. Further, it may be done according to the
facts and circumstances of particular cases in order to avoid untenable
complaints. No straightjacket formula of conducting preliminary inquiry has been
laid down.
Scope of Preliminary inquiry
1. Inquiry means every inquiry, other than a trial, conducted under this by a
Magistrate or Court. No such procedure of inquiry has been mandated for
Police. In Manubhai Ratilal Patel v. State of Gujarat & Others10, it was
reiterated that investigation is to be done by police (after an FIR is
registered) and inquiry by court.
2. It must reflect application of mind.
3. Preliminary inquiry should be completed within 7 days. The police officer
will also be required to state the reasons for not registering the FIR.
6
2015 (6) SCC 439
7
2006 (11) Scale 272
8
9
Criminal Appeal No. 1662 of 2019
10
2013 (1) SCC 314
In Case of Denial by the Police to Register an FIR
Following recourses and remedies are available:
o Section 166 IPC provides for punishment of a public servant for a
term extending 1 year with fine for disobeying law or causing legal
injury to any person.
o Under Section 36 of the code of criminal procedure, power of
superior officers of police to take action against concerned police
officer has been maintained.
o In Madras H.C. Sugeshan Transport pvt. Ltd. V. Asst.
Commissioner of Police11, it was stipulated that legal services
authority must also take immediate steps and help in registering FIR.
o Creation of Police Complaint Authorities: In 2016, 7 directions
were given to State, Central and district level govts. to establish
police complaint authorities.
Functions of Police Complaint Authority :
State level Complaints Authority- It needs to take cognizance of
allegations of serious misconduct by the police personnel, including
incidents involving deaths, grievous hurt or rape in police custody.
District level Complaints Authority – It needs to inquire into
allegations of extortion, land/house grabbing or any incident
involving serious abuse of authority.
Powers of complaint authority:
May Recommend –
For any action, departmental or criminal, against a delinquent
police officer shall be binding on the concerned authority.
Powers of Magistrate to Direct an FIR or take Cognizance of the Complaint
under Section 156:
▪ In Dilawar Singh v. State of Delhi Appeal12 , it was restated that it is the
duty of a police officer in charge of a police station to register an FIR even
if the Magistrate does not expressly direct it to.
11
Crl.O.P. Nos.19197, 19198, 19343 and 19359 to 19363 of 2016
12
(crl.) 491 of 2001,
▪ In a Judgement of Gujarat high Court, it was stated that the Magistrate
cannot mechanically direct an FIR, except in complex cases which require
complicated investigation .
▪ Many a times, an FIR with the Magistrate is confused as a private
complaint and Section 200 is applied. In such cases, a proper trial is
conducted, along with admission of witnesses and evidences.
▪ In Priyanka Srivastava v. State of U.P.13, the Court was of the view that
prior application needs to be made under Section 154 (1) and 154 (3) while
filing a petition under Section 156(3).
▪ In Sakiri Vasu v. State of U.P. and Others14, it was held that the
Magistrate can order the registering of an FIR as well as direct a proper
investigation to be made.
Recourse to High Court for FIR:
▪ One can approach the High Courts to register an FIR under section 482
Code of Criminal Procedure and / or Article 226 (which contains power to
issue writs) of the Constitution of India.
▪ However, in Divine Retreat Centre v. State of Kerala15, the Court held
that there is no unbounded arbitrary jurisdiction and the High Court must
exercise its power carefully and with caution wherever it can be justified
by the tests laid down before in Section 482. Further, it provided for three
circumstances under which inherent jurisdiction may be rightly exercised:
1. Firstly, to give effect to an order under the Code,
2. Secondly, to prevent abuse of the process of Court, and
3. Thirdly, to otherwise secure the ends of Justice.
▪ It must be noted that when specific powers exist in CrPC for dealing with
a situation, the power of writ cannot be invoked.
▪ A complaint will not be maintainable in H.C. till the petitioner exhausts
remedies under section 154 (1), 154(3) and 156 (3) of the Code of Criminal
Procedure i.e.
✓ Petitioner first approaches the police station u/s 154(1) with his
information and
✓ Then if dissatisfied makes written representation u/s 154(3) Cr P.C. to
Superintendent of Police/ Deputy Commissioner of Police and
13
Criminal Appeal No. 781 of 2015
14
Appeal( crl.) 1685 of 2007
15
2008 (3) SCC 542
✓ If not satisfied, approaches the court of Magistrate under Section 156 (3)
of the Code of Criminal Procedure for direction to the police station to
register the FIR and investigate.
Limitations of H.C.:
In M. Subramaniam & Another v. Janaki & Another16, the Madras H.C.
had directed the inspector of Police, City Crime Branch, K.K. Nagar,
Trichy to register an FIR against the appellants on the basis of complaint
by the respondent and investigate and submit the report. The order of
registration under section 482 was challenged in the Supreme Court and
set aside. In Sakiri Vasu v. State of U.P. and Others also, it was held that
High Court cannot direct the police to register, investigate or make a
report of the matter.
In Aleque Padamsee and Others v. Union of India and Others17, a writ
petition was disposed on the following grounds that if the police officers
do not act upon registering the complaint, the aggrieve person can invoke
remedies under the provisions of section 190 read with Section 200.
When to Approach H.C.?
1. When the Magistrate has refused to order under Section 156(3) Code of
Criminal Procedure.
2. Despite order of the Magistrate u/s 156(3), FIR is not registered.
3. If the police fail to complete preliminary enquiry within 6 weeks as
mandated by S.C. in the case of Lalita Kumari v. State of U.P.
In such a situation, one can approach u/s 482 Code of Criminal
Procedure read with Article 144 of the Constitution of India.
The court cannot investigate the complaint but only direct the police to
register FIR on the complaint for the failure of police to follow the
mandate of S.C. in Lalita Kumari v. State of U.P.
4. If the police after conducting preliminary enquiry closes the case.
5. Where the remedy u/s 156(3) is shown to be not an adequate efficacious
alternative remedy
16
Criminal Appeal No. 102 of 2011
17
2007 (6) SCC 171
6. There may be extreme rare cases the remedy u/s 156(3) may be avoided
if the case is shown to be
• One of the rare of the rarest case
• Extremely shocking and ugly offence
• Extreme official apathy and indifference
• Need to answer the judicial conscious
• Existence of hostile environment
Principe of alternative remedy
Principe of alternative remedy is a rule of convenience and not a rule of law.
In Maharashtra Chess Association v. Union of India18, it was stated, “The mere
existence of alternate forums where the aggrieved party may secure relief does
not create a legal bar on a H.C. to exercise its writ jurisdiction. It is a factor to be
taken into consideration by the High Court amongst several factors.”
Conclusion
It can be safely concluded that one must not to rush to the H.C. for registering a
complaint unless all remedies are exhausted and the case is exceptional and
serious. This is because the High court also has the power to quash the FIR.
One can adopt a strategy of registering two complaints simultaneously – one
regarding the failure of police to register the FIR and the other as a private
complaint against the accused. In other words, one can file a writ petition under
Art. 226 of the constitution of India and Application under Section 482 of Code
of Criminal Procedure. One should avail the Alternative Remedy as provided
under Section 156(3) of the Code.
18
2019 SCC Online SC 932
