What Are The Remedies Available When Police Refuse To Register FIR
Section 154 of The Code of Criminal Procedure Code deals with registration of First Information Report (though the Section does not use the word 'First Information Report or FIR).
Section 154(1) says every information relating to the commission of a cognizable offence, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction, and be read Over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf.
What are condition precedents for registering FIR?
The only condition precedent for registering an FIR is that the information should disclose a cognizable offence.
The requirement of Section 154 of the Code is only that the report must disclose the commission of a cognizable offence and that is sufficient to set the investigating machinery into action.
In Section 154(1) of the Code, the Legislature in its collective wisdom has carefully and cautiously used the expression 'information' without qualifying the same as in Section 41(1)(a) or (g) of the Code wherein the expressions, 'reasonable complaint' and 'credible information' are used. Evidently, the non-qualification of the word 'information' in Section 154(1) unlike in Section 41(1)(a) and (g) of the Code may be for the reason that the Police Officer should not refuse to record an information relating to the commission of a cognizable offence and to register a case thereon on the ground that he is not satisfied with the reasonableness or credibility of the information. In other words, 'reasonableness' or 'credibility' of the said information is not a condition precedent for registration of a case. [Lalita Kumari]
In Tapan Kumar Singh Supreme Court held that it is well settled that a first information report is not an encyclopedia, which must disclose all facts and details relating to the offence reported.
An informant may lodge a report about the commission of an offence though he may not know the name of the victim or his assailant. He may not even know how the occurrence took place. A first informant need not necessarily be an eyewitness so as to be able to disclose in great detail all aspects of the offence committed. What is of significance is that the information given must disclose the commission of a cognizable offence and the information so lodged must provide a basis for the Police Officer to suspect the commission of a cognizable offence.
At this stage it is enough if the Police Officer on the basis of the information given suspects the commission of a cognizable offence, and not that he must be convinced or satisfied that a cognizable offence has been committed. If he has reasons to suspect, on the basis of information received, that a cognizable offence may have been committed, he is bound to record the information and conduct an investigation. At this stage it is also not necessary for him to satisfy himself about the truthfulness of the information
Is Section 154(1) mandatory?
The Constitution Bench of the Supreme Court in Lalita Kumari Case held that Registration of FIR is mandatory under Section 154 of the Code.
There is no reason that there should be any discretion or option left with the police to register or not to register an FIR when information is given about the commission of a cognizable offence. Every cognizable offence must be investigated promptly in accordance with law and all information provided under Section 154 of the Code about the commission of a cognizable offence must be registered as an FIR so as to initiate an offence.
The legislative intent is therefore quite clear, i.e., to ensure that every cognizable offence is promptly investigated in accordance with law. This being the legal position, there is no reason that there should be any discretion or option left with the police to register or not to register an FIR when information is given about the commission of a cognizable offence. Every cognizable offence must be investigated promptly in accordance with law and all information provided under Section 154 of the Code about the commission of a cognizable offence must be registered as an FIR so as to initiate an offence.
Procedure when Police refused to register FIR though the information revealed a Cognizable Offence.
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 subsection (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.[Section 153(3)]
Explaining Section 153(3) the Constitution Bench in Lalita Kumari said;
In case, an officer in charge of a police station refuses to exercise the jurisdiction vested in him and to register a case on the information of a cognizable offence reported and thereby violates the statutory duty cast upon him, the person aggrieved by such refusal can send the substance of the information in writing and by post to the Superintendent of Police concerned who if satisfied that the information forwarded to him discloses a cognizable offence, should either investigate the case himself or direct an investigation to be made by any Police Officer subordinate to him in the manner provided by sub-section (3) of Section 154 of the Code.
The insertion of sub-section (3) of Section 154, by way of an amendment, reveals the intention of the Legislature to ensure that no information of commission of a cognizable offence must be ignored or not acted upon which would result in unjustified protection of the alleged offender/accused.
What is the remedy available when the attempt under Section 154(3) also failed?
After exhausting the steps mentioned in Section 154(1) and Section 154(3) the aggrieved person can file a complaint before the Magistrate for a direction under Section 156(3) to police to register FIR.
Section 156(3) says any Magistrate empowered under section 190 may order an investigation.
But the Magistrate cannot act as a mere 'Post Office' in forwarding such a complaint for investigation under S.156(3) CrPC which means the direction by the Magistrate for investigation under S.156(3) should not be issued mechanically.
The Supreme Court in Priyanka Srivastava v. State of U.P., AIR 2015 SC 1758 observed;
"Power under S.156(3) warrants application of judicial mind. A court of law is involved. It is not the police taking steps at the stage of S.154 of the Code. A litigant at his own whim cannot invoke the authority of the Magistrate. A principled and really grieved citizen with clean hands must have free access to invoke the said power. It protects the citizens but when pervert litigation takes this route to harass their fellows citizens, efforts are to be made to scuttle and curb the same".
In Ramdev Food Products Private Limited v. State of Gujarat while dealing with the exercise of power under S.156(3) CrPC by the learned Magistrate, a three - Judge Bench held that:
"....the direction under S.156(3) is to be issued, only after application of mind by the Magistrate. When the Magistrate does not take cognizance and does not find it necessary to postpone instance of process and finds a case made out to proceed forthwith, direction under the said provision is issued. In other words, where on account of credibility of information available, or weighing the interest of justice it is considered appropriate to straightaway direct investigation, such a direction is issued. Cases where Magistrate takes cognizance and postpones issuance of process are cases where the Magistrate has yet to determine "existence of sufficient ground to proceed"."
Need to file Affidavit;
It is also held that in an appropriate case, the learned Magistrate would be well advised to verify the truth and also can verify the veracity of the allegations. This affidavit can make the applicant more responsible.
"We are compelled to say so, as such kind of applications are being filed in a routine manner without taking any responsibility whatsoever only to harass certain persons. That apart, it becomes more disturbing and alarming when one tries to pick up people who are passing orders under a statutory provision which can be challenged under the framework of said Act or under Art.226 of the Constitution of India. But it cannot be done to take undue advantage in a criminal court as if somebody is determined to settle the scores. We have already indicated that there has to be prior applications under S.154(1) and S.154(3) while filing a petition under S.156(3). Both the aspects should be clearly spelt out in the application and necessary documents to that effect shall be filed. The warrant for giving a direction that an the application under S.156(3) be supported by an affidavit so that the person making the application should be conscious and also endeavour to see that no false affidavit is made. It is because once an affidavit is found to be false, he will be liable for prosecution in accordance with law. This will him to casually invoke the authority of the Magistrate under S.156(3). That apart, we have already stated that the veracity of the same can also be verified by the learned Magistrate, regard being had to the nature of allegations of the case. We are compelled to say so as a number of cases pertaining to fiscal sphere, matrimonial dispute / family disputes, commercial offences, medical negligence cases, corruption cases and the cases where there is abnormal delay / laches in initiating criminal prosecution, as are illustrated in Lalita Kumari are being filed. That apart, the learned Magistrate would also be aware of the delay in lodging of the FIR."
What are the options before the Magistrate on receipt of a Complaint seeking a direction under Section 156(3) CrPC?
Supreme Court in Aleque Padamsee And Ors vs Union Of India held that when the information is laid with the police, but no action in that behalf is taken, the complainant can under Section 190 read with Section 200 of the Code lay the complaint before the Magistrate having jurisdiction to take cognizance of the offence and the Magistrate is required to enquire into the complaint as provided in Chapter XV of the Code. In case the Magistrate, after recording evidence, finds a prima facie case, instead of issuing process to the accused, he is empowered to direct the police concerned to investigate into offence under Chapter XII of the Code and to submit a report. If he finds that the complaint does not disclose any offence to take further action, he is empowered to dismiss the complaint under Section 203 of the Code. In case he finds that the complaint/evidence recorded prima facie discloses an offence, he is empowered to take cognizance of the offence and could issue process to the accused.
In S.156 (3), Cr.P.C., the word used is "May". The use of the word "Shall" in S.154(3), Cr.P.C. and the use of word "May" in S.156(3), Cr.P.C. should make the intention of the legislation clear. If the legislature intended to close options for the Magistrate, they could have used the word "Shall" as has been done in S.154(3), Cr.P.C. Instead, use of the word "May" is, therefore, very significant, and gives a very clear indication, that the Magistrate has the discretion in the matter, and can, in appropriate cases, refuse to order registration.
Magistrate may direct the police to register a case and investigate or he may treat the same as a complaint and proceed in matter contemplated in Chapter XV of Code. He should apply his judicial mind. Magistrate if takes cognizance, may proceed to follow the procedure provided in Chapter XV of Code. Magistrate may either take cognizance under S.190 or may forward the complaint to police under S.156(3) for investigation.".
In the case of Sukhwasi v. State of Uttar Pradesh, Allahabad HC held that the Magistrate is not bound to order for registration of an FIR in all cases where a cognizable offence has been disclosed and the Magistrate has authority to treat it as a complaint.
Is police bound to register FIR on receipt an order under S.156(3)?
In Suresh Chandra Jain v. State of Madhya Pradesh and another the Supreme Court held that even if a magistrate does not say in so many words while directing investigation under Section 156(3) of the Code that an FIR should be registered, it is the duty of the officer-in-charge of the police station to register the FIR regarding the cognizable offence disclosed by the complaint because that police officer could take further steps contemplated in Chapter XII of the Code only thereafter.
In Mohd. Yousuf vs Smt. Afaq Jahan Supreme Court held as follows;
"The clear position therefore is that any Judicial Magistrate, before taking cognizance of the offence, can order investigation under Section 156(3) of the Code. If he does so, he is not to examine the complainant on oath because he was not taking cognizance of any offence therein. For the purpose of enabling the police to start investigation it is open to the Magistrate to direct the police to register an FIR. There is nothing illegal in doing so."
Can a person approach the High Court against the refusal of police to registering FIR?
In Sudhir Bhaskarrao Tambe v. Hemant Yashwant Dhage, 2016 (6) SCC 277, the Supreme Court has referred to Sakiri Vasu and held that if a person has a grievance that the police have not registered his complaint, or having registered it, they have not investigated it properly, then the aggrieved person's remedy "is not to go to the High Court Under Art.226 of the Constitution of India, but to approach the Magistrate concerned under S.156(3) of the Code."
"What we have found in this country is that the High Courts have been flooded with writ petitions praying for registration of the first information report or praying for a proper investigation. We are of the opinion that if the High Courts entertain such writ petitions, then they will be flooded with such writ petitions and will not be able to do any other work except dealing with such writ petitions. Hence, we have held that the complainant must avail of his alternate remedy to approach the concerned Magistrate Under S.156(3), Code of Criminal Procedure, and if he does so, the Magistrate will ensure, if prima facie he is satisfied, registration of the first information report and also ensure a proper investigation in the matter, and he can also monitor the investigation.".
i A petition under Section 482, Cr.P.C. for a direction to register an FIR on the complaint of the petitioner circumventing the time table prescribed by the Supreme Court in Lalita Kumari-IV and V is not maintainable.
ii This Court directs all the Station House Officers in the State of Tamil Nadu and Union Territory of Puducherry to receive any complaint relating to the commission of cognizable offence by a common man and if the Station House Officer wants to conduct a preliminary enquiry, he shall immediately issue a CSR receipt (in case of Tamil Nadu) or issue a separate receipt (in case of Union Territory of Puducherry) to the complainant and after making the necessary entries in the Station General Diary, as directed by the Supreme Court in Lalita Kumari-IV and V, conduct preliminary enquiry. In Lalita Kumari-IV, the Supreme Court has directed that after conducting preliminary enquiry, if the police come to the conclusion that no FIR need be registered, a duty is cast upon the police to furnish a copy of the closure report to the complainant. After getting the closure report, it is open to the complainant to file a petition under Section 156(3) Cr.P.C. or private complaint under Section 190 read with Section 200 Cr.P.C. disclosing the facts and persuading the Magistrate to take cognizance of the offence. Such a petition/private complaint should disclose the closure report of the police. After taking cognizance of the offence, the Magistrate can also order police investigation under Section 202, Cr.P.C. to a limited extent. The closure report cannot be subject to judicial review under Section 482, Cr.P.C.
iii If the Station House Officer refuses to receive the complaint, the complainant shall send the complaint together with a covering letter to the Superintendent of Police/Deputy Commissioner of Police by Registered Post with Acknowledgment Due under Section 154(3), Cr.P.C.
iv If there is inaction on the part of the Station House Officer and the Superintendent of Police, the complainant is at liberty to move the jurisdictional Magistrate under Section 156(3) Cr.P.C.
v The complaint shall be given to the Magistrate either in Tamil or in English in the form of a representation in first person addressed directly to the Magistrate.
vi The complaint shall be accompanied by an affidavit as mandated by the Supreme Court in Priyanka Srivastava Case.
vii On receipt of the complaint, the Magistrate shall pass orders thereon within 15 days, either issuing directions or dismissing the petition.
viii If the Magistrate decides to order police investigation, he should pass a judicial order to that effect in the record sheet.
ix A copy of the order, together with original complaint and copy of the affidavit, shall be forwarded by the Magistrate to the jurisdictional police officer for investigation.
x If the police officer does not register FIR within a period of one week from the date of receipt of the Magistrate's order, the Magistrate shall initiate prosecution against him under Section 21 read with Section 44 of the District Police Act before the Chief Metropolitan Magistrate or the Chief Judicial Magistrate, as the case may be.
xi If no FIR is registered by the police within one week from the date of receipt of a copy of the order of the Magistrate under Section 156(3), Cr.P.C., the complainant can approach this Court under Section 482, Cr.P.C.
xii If the police fail to complete the preliminary enquiry within six weeks as mandated by the Supreme Court in Lalita Kumari-V, the complainant can approach this Court under Article 144 read with Section 482, Cr.P.C.
xiii The aforesaid petition under Article 144 read with Section 482, Cr.P.C. must be accompanied by an affidavit sworn to by the complainant with satisfactory materials to show that the police have not completed the preliminary enquiry within six weeks, as mandated by the Supreme Court in Lalita Kumari-V. In such a petition, this Court will not read the complaint, but, issue directions to the police to register an FIR on the complaint for the very failure of the police to follow the mandates of Lalita Kumari-IV and V. The Registry of this Court shall not number the petition filed under Section 482, Cr.P.C. seeking a direction to register an FIR unless it is accompanied by an affidavit containing the above details.
xiv In suitable cases, this Court shall also direct disciplinary action to be taken against the police officer for the violation of the mandates of Lalita Kumari - IV and V. xv If the police officer fails to register the FIR pursuant to the directions of this Court, he will be liable for contempt of Court, besides facing disciplinary action.
xvi The aggrieved party can also approach the local Legal Services Authority and the Authority shall take immediate steps to ensure that an FIR is registered or CSR receipt issued to the complainant.
xvii Every police station shall have a board giving the name and telephone number of the local Legal Services Authority.