One of the common refrain or complaint of public is that even if they go to police station to report about some crime, they will be sent back and their complaint or FIR will not be registered.
In matrimonial related cases, it has been seen that any complaint by wife is taken and registered into an FIR easily, whereas any complaint or FIR by husband is taken only if there are visible injuries or blood on him! I have seen one such case where FIR under IPC Section 323 was registered on in-laws party due to a bleeding head injury inflicted on husband. On the other hand, recently there were circulated on Twitter photos of a man with visible injuries on his head along with blood streaking down, but police has refused to register an FIR!
Sending husband back is probably the more common scenario, and generally police sends the husband away for that magic word called ‘counselling’ or meeting between the parents of both spouses. For example, in this case reported in Bengaluru, a man whose finger had been chopped by wife was advised to arrange a meeting of both spouses’ parents towards a patch-up!
The rest of the article gives general guidelines for registering a criminal offence and these guidelines are applicable to all type of offences.
Here the definitions we will use for FIR and Complaint (to Magistrate) are generally accepted definitions in legal parlance.
FIR: First Information Report under CrPC 154(1) which is done for cognizable offences only. Note that the term “First Information Report (FIR)” is not part of CrPC however ‘An information given under sub-section (1) of section 154 CrPC is commonly known as first information report (FIR)’
Complaint: This word is as defined in Sec 2(d) of CrPC which is as follows:
2(d): “complaint” means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report.
So to distinguish from above definition of Complaint which is to a Magistrate from a complaint which one gives to police (whether oral or in writing), we will use the term Police Complaint for any complaint given to police, and the word Complaint will be taken as per Sec 2(d) of CrPC to mean Magistrate Complaint.
To read more perspectives on discussion about FIR vs Complaint one could also read various answers to this question on Quora: https://www.quora.com/What-is-difference-between-FIR-and-complaint
Main points to know are:
1. Cognizable offences are those for which police can arrest accused without a warrant.
2. FIRs can be registered for cognizable offences only (which are generally more serious offences like theft, kidnapping, murder etc).
Some questions which I believe will arise in minds of most citizens are:
1. What would happen if you want to report on some crime/offence to police but you are not sure whether it will come into category of cognizable offence or not? Because if it is not a cognizable offence, then police cannot register an FIR on that.
2. Is it useful or required for a citizen to know the list of cognizable and non-cognizable offences before approaching police?
3. Should you preferably give a complaint in writing (whether for cognizable or non-cognizable crime) to police or is it better to just go to police station and report the crime or situation orally?
4. If you believe the offence is non-cognizable one (so police can’t register FIR on that), should you directly approach Magistrate with Complaint, or is it still better to report it to police first?
Before answering these and other questions, we should build some basic knowledge first and I will rely heavily on an official document by Maharashtra Police written for general public in layperson language. In between, I will try to map that information onto relevant provisions of CrPC. The parts about CrPC will be most useful when you want to discuss with police or an advocate about the approach you are taking and how it is a valid approach from view of law. Else you will appear to be a layperson like anyone else in public.
It is generally observed that 99% of public prefers to avoid reading bare acts of law like CrPC, IPC etc, but rely upon conventional views shared by family/friends/co-workers to come up to conclusions about law. That approach fails miserably because most of the time the said persons themselves don’t have any basic knowledge of law, and have formed their own opinions based on commonly heard views from others. Basing one’s conclusions on majority opinion of people will work only when a majority of those people have good knowledge of law – else it is nothing but going by herd mentality.
Many actually believe that what is shown about police and law in primarily entertainment driven movies is how law and police are supposed to work! They can make an attempt to rely on information below since it is from an official document by police.
101 Things You Wanted To Know About The Police But Were Reluctant To Ask – Maharashtra Police Document
Here to I will include Q&A from an official Maharashtra police document which is titled “101 Things You Wanted To Know About The Police But Were Reluctant To Ask” (PDF download). It is written in layperson language, but since it’s an official document by police, one can rely on its contents even though it may not have references to CrPC or IPC sections in it. Along with information excerpted from the document, I will mention sections of CrPC based on my study. Reader should also confirm them based on studying the primary sources and bare acts of various sections of CrPC, IPC etc to which links will be given below.
Now some eternal sceptics will raise doubts that this Maharashtra Police 101 Things Document does not have a police logo or state government insignia etc on it, so let me give screenshot of google search below which will confirm that the document is available on Maharashtra police website (and it has been so for quite a while too). You can download it from there directly too.
Maharashtra Police 101 Things Google Result
Below, all Q&A type of excerpts are all taken from above Maharashtra Police 101 Things Document. The numbers 57, 58, etc before the questions refer to the question numbers for the 101 questions in the document.
57. Suppose I want to tell the police about a crime, what do I do?
If it is a serious crime like theft,housebreaking, eve-teasing, assault, molesting a child, rape, kidnapping,trafficking, and even rioting you can immediately file an FIR directly with the head of the local police station and they are bound to take it down in writing and give you a copy. You can even go to the magistrate with your complaint and he will register it.
Commentary: Above confirms the understanding the FIR can be and should be registered is for serious crimes. And complaint to magistrate can be filed as an alternative when registration of FIR is not possible,
58. What is an FIR?
That is the just short form for First Information Report. A victim, witness or any other person knowing about a “cognisable” offence can file an FIR. What you say in the FIR will start the police making inquiries about the matter and gathering facts to see if there is a case that can be made out.
Note: for some reason the Maharashtra Police document has spelling of “cognizable” (as it is in CrPC) as “cognisable”. We should use the word “cognizable” since that is the spelling used in CrPC.
Commentary: Above confirms that FIR can be done for cognisable offences only. Investigation is done by police AFTER registration of FIR. One can read the (very long) Lalita Kumari Judgment too for guidelines given by Supreme Court about mandatory registration of FIRs for cognizable offences.
60. Can the police refuse to file my complaint?
Yes and no. In India crimes are divided into those that are “cognisable” and “noncognisable”. A “cognisable” crime is for example murder, rape, rioting, dacoity, etc. which means that the police can take notice of them directly, register an FIR and begin to make inquiries. A “non-cognisable” crime is for example cheating, fraud, forgery, bigamy, selling underweight or adulterated food or creating a public nuisance, which means that the investigation will start only when a magistrate has taken the complaint on record and directs the police to investigate. The way of understanding this rough division is that crimes that need a more urgent response can be complained of directly to the police and others go to the magistrate. So, even if the police cannot take your complaint on board they should at the very least listen to you, enter your matter in the daily diary, give you a signed copy of the entry, free of cost, and direct you to take it to the magistrate.
Comments: Above gives the rationale that serious or heinous crimes can be reported to police directly, and the not so urgent or serious ones can be given via Complaint to Magistrate. The last sentence clarifies that one can approach the police for any kind of crime complaint, even if it is a non-cognizable one. Once the complaint is acknowledged by police, the person can approach the magistrate to give a Complaint as per Sec 2(d).
What to do if police refuses to register FIR for a cognizable offence?
61. Suppose my complaint is about a “cognisable” offence but the station
house officer refuses to register it. Then what can I do?
You can still get it registered by taking the complaint to a senior officer/head of district police or to the nearest judicial magistrate and they will order it to be registered. To make sure that your complaint is on record and will be followed up, hand deliver the complaint or if you send it by post, register AD it. In any case, always get a receipt that proves that it has been received and keep that safely. That will show that the complaint has been actually received by the concerned officer. That takes care of your complaint but you should also complain about the difficulty you have had in registering your matter in the first place. That way the officer is less likely to do it again.
Comments: Above can help with the common refrain that “my complaint was genuine but police did not take it”. If that happens, there are two options:
Option 1: Send police complaint to Superintendent of Police or Police Commissioner
You can send it by speed post or Registered Post Acknowledgment Due (RPAD) to senior officer/head of district police of the area. Keep the delivery proof safely. Now it is not clear as to which designations in police these will translate to depending on whether it is a Metro city, a non-Metro city, town, district, village etc. To ascertain that we can refer to Section 154(3) of CrPC which gives details on what steps can a person do if an FIR is refused to be registered by police:
Section 154(3) of CrPC: 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 Sub-Section (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 offence, 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 offence.
So the designation above mentioned is Superintendent of Police, so it would be safe to send it to SP of the area. Now the other complication is that many Indian Metros and cities follow the Commissionerate System where there is no rank of SP but there are ranks of Commissioner of Police (CP), Deputy Commissioner of Police (CP) etc. This is a small area of study by itself, but based on my reading of articles, if one is living in a big city which has Commissioner of Police rather than SP, then the Police Complaint may be sent to CP or DCP. If one is not sure about CP or DCP being the right addressee, one can send it to CP who may forward it to appropriate person in police hierarchy.
https://www.quora.com/What-is-difference-between-police-commissioner-and-superintendent-of-police
https://en.wikipedia.org/wiki/Pune_Police#/media/File:Organization_structure_of_Pune_City_Police.png
Option 2: Complain to judicial magistrate
Chapter 15 of CrPC having Sections 200 to 203 deals with Complaints to Magistrates. There are a few other sections too which deal with the same. Here we will discuss these sections which inform us about how cognizance of a Complaint (magistrate) can be taken by a criminal court:
Sec 190. Cognizance of offences by Magistrates
Description
1. Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under Sub-Section (2), may take cognizance of any offence—
(a) upon receiving a complaint of facts which constitute such offence;
(b) upon a police report of such facts;
(c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.
2. The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under Sub-Section (1) of such offences as are within his competence to inquire into or try.
Comments: Subsection 1(a) is the relevant provision for a complaint (defined in Section 2(d) of CrPC) by citizen directly to criminal court.
Section 200: Examination of complainant
Description
A Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate;
Provided that, when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses,
(a) if a public servant acting or purporting to act in the discharge of his official duties or a Court has made the complaint; or
if the Magistrate makes over the case for inquiry or trial to another Magistrate under section 192;
(b) Provided further that if the Magistrate makes over the case to another Magistrate under section 192 after examining the complainant and the witnesses, the latter Magistrate need not re-examine them.
Comments: Note that the magistrate has to examine complainant on oath, and the written matter has to be signed by the complainant/witnesses. There is another clause that if the complaint is in written form, then Magistrate need not examine the complainant and witnesses.
Section 201: Procedure by Magistrate not competent to take cognizance of the case
Description
(a) If the complaint is made to a Magistrate who is not competent to take cognizance of the offence he shall,
(b) if the complaint is in writing, return it for presentation to the proper Court with an endorsement to that effect; if the complaint is not in writing, direct the complainant to the proper Court.
Comments: Besides the information, sub-section (b) of 201 informs us that Complaint can be made in writing to court, or even an oral complaint may be possible (where specific/full details of complaint are not yet provided in writing).
Section 202: Postponement of issue of process
(1) Any Magistrate, on receipt of a complaint of an offence of which he is authorised to take cognizance or which has been made over to him under section 192, may, if he thinks fit and shall in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction, postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding:
Provided that no such direction for investigation shall be made-
(a) where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Sessions; or
(b) where the complaint has not been made by a Court, unless the complainant and the witnesses present (if any) have been examined on oath under section 200.
Comments:
1. Issue of process means sending of a formal written notice to accused by the court asking to appear on a certain date in court regarding the complaint case.
2. If the accused resides in a different jurisdiction, then Magistrate is bound to either inquire into the case himself or direct a police officer to do the same.
3. If the accused resides in jurisdiction of the court, then Magistrate may order an inquiry. Note that there is no bar on Magistrate to take cognizance of complaint and issue process without inquiry if accused resides in the same jurisdiction as court.
Section 203 – Dismissal of complaint
If, after considering the statements on oath (if any) of the complainant and of the witnesses and the result of the inquiry or investigation (if any) under section 202, the Magistrate is of opinion that there is no sufficient ground for proceeding, he shall dismiss the complaint, and in every such case he shall briefly record his reasons for so doing.
Comments: It is possible that Magistrate may dismiss your complaint. In that case, you can and should apply for certified copies of the complete case file and peruse the order and order sheets to decide on further steps. Application for certified copies can be given by complainant directly to records/copying section in court.
Now we continue with more relevant Q&A from Maharashtra Police 101 Things Document regarding registration of FIR/complaints and other common questions regarding police procedures.
62. What must be put down in an FIR?
The FIR is your version of the facts as you know them or as they have been told to you. It is always better if you know the facts first-hand but it is not necessary that you yourself have seen the offence. Whichever it is, you must only give correct information. Never exaggerate the facts or make assumptions or implications. Give the place, date and time of the occurrence. Carefully, describe the role of every person involved: where they were, what they were doing, the sequence of what was being done by each person, any kind of injury or damage to property that has been done. Do not forget to mention the kinds of weapons involved. It is best to get all these facts and circumstances recorded as soon as possible. If there is some delay in recording a complaint make sure the reason for the delay is also written down.
Comments: Above is fairly self-explanatory. I would suggest to write down basic notes on place, date, time of incident, and any other important information on a paper (or smartphone?) before approaching police, since one’s memory may not remember exact times or events. E.g. it will be much better to report that an incident happened around 10:35 am in the morning than just say that it happened in morning. One could write the full details into a written complaint too, but a general rule cannot be given.
63. How can I be sure that the police have written what I told them correctly?
Remember that the FIR is your version of what you know. It is not the police version of anything. The police are just there to take it down accurately without adding anything or taking out anything. To make sure of this, the law actually requires the police officer to read the FIR out to you and it is only once you agreewith what is written that you need to sign it. The police must also give you a true copy of it free of cost. The FIR is recorded in the FIR register and a copy goes to a senior officer and to the magistrate.
Comments: Basically this is a basic precaution which many people are prone to ignoring – one should not sign on something without having read it! There is no need to worry whether someone will think that you don’t trust them. Before you sign it, the FIR can be modified so you can ask the police official to modify it until it matches the details you have reported. This is where having gone prepared with some written notes or even written complaint of your own will be helpful since you can point them out easily that the details noted in FIR are not matching with your written notes or written complaint.
64. What happens once my FIR is filed?
The FIR sets the police investigations in motion. As part of that, the police may speak to victims and witnesses, record statements including dying declarations, check out the crime scene, send articles for forensic examination and bodies for post-mortem as necessary, question several people and with each lead make further investigations. Once investigations are complete, the officer in charge must make a full record of it. This is called a challan or chargesheet.
65. What is a challan or chargesheet?
After all investigations are done the officer in charge will look at the facts and decide if there is enough evidence to show that a crime has been committed and record it in the chargesheet for the prosecution and the court. If all the elements of a crime are not made out it will be a waste of time to bring the accused to court. The prosecution and the court will examine the chargesheet independently to see if a possible crime is made out.
66. Will the police automatically arrest everyone named in the FIR?
No, and they should not. Just because someone is named in an FIR is no reason to arrest a person. It is only when there is sufficient ground for believing that a person may have committed a crime that the police can arrest him.
Comments: Based on my observations on social media and internet comments on crimes related news, many people in India fantasize everyday about someone getting arrested! Media is also prone to publish such news with adjectives like “Breaking News” or “Exclusive” (as if news of an arrest will be kept from other media houses by police!). 99% of people actually believe in the erroneous idea of “Arrest means Guilty” which is a myth (to read about this and other common myths about law you can refer to my FREE eBook Surviving the Legal Jungle (Download PDF)). Many probably think that the person arrested will be kept in jail until the whole trial is over ending in conviction – and conviction is certain because Arrest means Guilty! Such wrong ideas probably explains the morbid fascination of public on arrest than more important things like a speedy and fair trial.
67. Can the police close my complaint and not take further action?
Yes. If after making their own inquiries the police decide that there are no facts that support the idea that a crime was committed or there is not enough evidence to support allegations or acknowledge that a crime has been committed but the people who did it are not known – then they can close the case after giving reasons to the court. They must also inform you of their decision. You, then, have a chance of opposing the closure before the court.
Comments: The last sentence is the crucial one which says that one has the option of approach the criminal court if police closes the complaint. The process of complaint to magistrate court has already been covered.
68. Will I be kept informed of the progress of my case?
There is nothing specific in the law which requires the police officer to keep your informed about the progress of a case. But it is good practice to tell a complainant how the case is going provided it does not compromise the investigation.
Comments: I would advise against weekly visits to the police station to check up on progress of the case. One could file an RTI application on police to get latest status and progress of the case. Note that it is possible that some portions of asked for information may be denied.
69. What can I do if the police are not investigating the matter or are doing so very slowly or refusing to examine the most obvious lines of inquiry?
There is an important principle in law that no one can interfere with police investigation. That said, if the police refuse to move forward or do it excessively slowly or wilfully disregard obvious lines of inquiry you can certainly complain to senior officers or to the nearest magistrate who can order the police officer to investigate and he can as well call for the record of investigation. Again it is important for you to ensure that everything is done in writing and a record of receipt kept with you.
Comments: Above provides some remedies like complaint to senior police or approaching the magistrate in case you are not happy with investigation by police. One should not be hasty in using those remedies though. The last sentence suggests the importance of keeping records and documents, and RTI can also be used in case you want to have more documents about police work done.
70. Can I call a police officer whenever I want?
Yes and no. The police are overworked and their numbers are few, so the public cannot constantly call them up with frivolous complaints and unsubstantiated information. However, of course you can call the police if you are in trouble, if a crime has occurred or is occurring, if there is likelihood of some riot, if some people are fighting and there is likelihood of disorder, or if you have serious information to give them. But you cannot call the police for things that are not connected with their job. Sometimes people play mischief and call the police even if nothing has happened. You can be punished for such pranks.
How and when to file an RTI regarding complaint given to police?
In general, it is observed that police may take a complaint but then it may get to reside in a cabinet or corner inside PS, and no further updates on its status may be forthcoming. After filing police complaint which is not registered into FIR and it is still under process, I would say that filing RTI should be considered integral part of the process when one is not getting the confidence that the complaint will get registered or will get taken seriously. Sometimes action on complaint may get initiated only after filing of the RTI! Maybe a day will come when filing of RTI is not necessary to get action taken on complaint, but as of now that does not seem to be the case.
Many templates for filing RTI will be easily found via a google search. The information about PIO (Public Information Officer) to whom to file RTI can be found most of the time on state police websites. If this information is not found online, it might be put on notice board inside the police station. Otherwise, you can ask the PS officials directly about the PIO on whom RTI is to be filed. If these details are not forthcoming, there is no harm in filing RTI to Public Information Officer, <fill address of the PS>, and most likely it will reach the right person.
The RTI can ask for following information:
Kindly provide any information/documents/records/notes regarding the complaint made ___________ (give details of complaint like complainant name, date of complaint) pertaining to the following:
1. Steps taken, progress of the complaint, and current status of complaint
2. Officers/police officials who have worked on the complaint at various stages of the complaint mentioning the from and to dates, stage of complaint, official name.
3. Inquiry report regarding the complaint.
Such RTI may be filed within 15-30 days of giving complaint to police. There is provision under RTI Act to request reply within 48 hours (if there is issue of life and liberty of a citizen involved), so you can request that citing the reasons why life and liberty of so and so person is at stake.
In case you had sent the complaint to SP or DCP because the PS had refused to register it, you can file RTI on the PIO of the SP or DCP to get status of the complaint.
Filed Complaint in PS, sent it to SP/DCP, filed RTIs – in the end nothing happened!
Well, it is not that nothing happened. Basically, the steps at the level of police to file a complaint have been exhausted with expected result not achieved. From RTI replies, it will be clear if the complaint processing was done professionally, and if the reasons of closing complaint are logical and as per evidence given or not. If you are not satisfied with the inquiry/closure of complaint, it is very much possible to invoke fresh steps to file complaint to magistrate directly – as covered earlier in this article.
Along with the complaint to magistrate, give copy of the previous police complaint, copy of documents got through RTI etc, and mention the reasons as to why in your opinion the investigation done by police was not proper, and why it must be taken cognizance of by criminal court.
Disclaimer: Above analysis about CrPC and other topics should not be taken as the final truth, whole truth, or any kind of legal advice. It should be taken for education (I guess entertainment is out of the question here!) and self-study purposes only. If you find any error, you can mention it in the comments below.
Note: Any comments below should pertain to relevant topics covered in this article. Only relevant comments will be approved, others will be deleted.
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