A first information report is your right, not a favour

Three common responses when you attempt to lodge a First Information Report (FIR): The Inspector is out on rounds or ‘bandobust’ duty, there is no jurisdiction to entertain the complaint and it’s a ‘civil dispute’.

Let me bust these myths. Ideally, you should lodge a complaint in a police station which has jurisdiction over your place of residence or business or where the offence was committed. This is where the ‘cause of action’ arises. If you are unable to file a complaint in the right place, due to an emergency or logistical challenges, you can lodge it in any police station. The personnel there are duty bound to transfer the complaint to the police station that has jurisdiction. The presence of the Inspector is not mandatory to take a report on a cognisable offence. A Sub Inspector or even a Head Constable, designated as the ‘Writer’, can accept a complaint and register a case.

The litmus test to determine whether a complaint is of a civil nature or not is to look for specific ingredients of a criminal nature. Non-payment of dues is a civil dispute. Recourse lies in a suit for recovery. But it may take on the form of the criminal offence of cheating. Or even lead to criminal intimidation or assault by a debtor or creditor. There’s a trend of organisations filing criminal complaints to arm twist the other parties to settle matters, without having to go through a civil trial involving court fee.

The Supreme Court in Lalita Kumari Vs Govt of UP made the registration of an FIR mandatory under Sec.154 of the Code of Criminal Procedure and took away “discretion and latitude” from the police for complaints which disclose the commission of offences like murder, rape, kidnapping & dowry deaths. These serious crimes are labelled ‘cognisable’ offences. There is no need for a preliminary enquiry. The police can make arrests without a warrant. Any reason for a delay in registering the FIR must be recorded in writing by the police. The Supreme Court in Thulia Kali vs State of Tamil Nadu had underscored the need for prompt filing of FIRs to prevent “embellishment, which is a creature of afterthought.” A complainant is entitled to a copy of the FIR free of cost.

If the complaint does not indicate a cognisable offence, an enquiry should be conducted to ascertain whether the offence reported is cognisable or not. Often when a complaint is presented directly to a Commissioner of Police or other senior officers, a common endorsement made to the Assistant Commissioner or Inspector is “E / R”. This stands for Enquiry & Report. Non-Cognisable offences are typically matrimonial / family tussles, property disputes or assault. Such offences require a Magistrate’s nod for investigation and a warrant for arrest. A case may be closed due to ‘mistake of fact’. The complainant and accused are entitled to copies of the closure report. The Supreme Court had modified its guidelines in the Lalita Kumari case and extended the time for the police to conclude its preliminary enquiry and file an FIR, from a week to 15 days and in exceptional circumstances, up to 6 weeks.  These guidelines framed by the apex court were to ensure that offences don’t go unregistered to suppress crime statistics or to favour influential persons accused of crimes.

To succeed in a petition in court to direct the police to register an FIR, you need to show that an offence is made out and that you have got no relief even after approaching senior officials. On the other hand, if a false case is foisted on you, the High Court will exercise its inherent powers to quash the FIR, only if no prima facie case is made out or the FIR is an abuse of the judicial process. The Supreme Court’s 7 guidelines in State of Haryana Vs Bhajan Lal are often cited in quash petitions. For an innocent person, trial is a punishment.
(Sanjay Pinto is a lawyer, columnist & author)

 

 

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