Quashing of FIR - Result of inordinate delay while registering an FIR

INTRODUCTION:

India is a welfare state. The welfare state is that which cannot be measured in terms of money or profit-making, but it is beyond that. In order to execute the welfare state, the Police force plays a very important role. The police have been entrusted with the duty and responsibility to see the law and order are well enforced and public tranquility is not broke.

The police are the organization which can restore peacemaking compulsion to follow the law the order to any lawbreaker legally. But the police due to its shamelessness and inefficiency also do force the public to adopt other institutions to enforce law and order.

Normally no man wants to call the police, the police is considered as the last resort. May at certain or every instance police decline to register a complaint because of shamelessness or want bribe. If any person wants to get a complaint registered in the police station he/she may follow the following steps: -

1. Think quietly of every facts and figures like date, time, place, etc.
2. Jot it down in a piece of paper roughly.
3. Write the complaint freshly in another paper.
4. Prepare the photocopy.
5. Submit the original to the officer in-charge and receivinga copy with stamp and signature with the date in the photo copy for future reference.

Offences are of two types those are (i) Cognizable offence and (ii) Non Cognizable offence.

In order to understand the types may we can simply note that offences those which are serious in nature are to be understand as ‘Cognizable offence’, like theft, murder, robbery, rape, acid attack, offences related to Narcotics, etc. and the offences which are not serious in nature are to be understand as ‘Non-Cognizable offence’ example forgery, slander or libel etc.

A foremost difference between the cognizable and non-cognizable offence is that the police officer needs permission from the Magistrate to start the investigation in case of non-cognizable offence whereas for cognizable, the police officer need not to obtain the permission of Magistrate to start any investigation.

So before complaining to the police, one should know that not all the complaint may be treated as a cognizable one, due to which the police can deny to register it as FIR or can treat it as a general diary. In FIR the police have to react promptly in comparison to the general diary.

WHAT TO DO IF THE POLICE DENY OR DELAY IN REGISTERING FIR DESPITE IT IS SERIOUS IN NATURE:

So it is now clear that not all complain can be treated as FIR, it depends upon the gravity of the offence. But there may be certain instances where the police refuse to take the complaint or shamelessly want bribe. In that situation do not ever give bribe to the police inspite of that do follow the below measures: -

Addressing to Superintendent of police:

Anyone whose complain is rejected or is delayed can directly approach the SP or ACP or the DCP of the concerned area. He/she may directly go to the SP or can even send the written complaint through post as the fact which police station refused to register the FIR.

Complain to the Magistrate:

In maximum cases even the after addressing the SP and order from the SP to the concerned police station, the police are so shameless that they urge for bribe to register complaint. In that case I urge through this article not to give bribe to those hopeless creatures of the earth (though not all the police personnel are corrupted, few are really a model of appreciation) rather please approach an Advocate, even a fresher in this field can do and ask him/her to go an file the complaint in front of the Magistrate.

Under section 156(3)[1] of the Criminal Procedure Code an individual can file a petition stating the audacity refusal of the police personnel to register the complaint or register the FIR and pray for an order to ask the police to register the FIR.

In the petition may the following Hon’ble Supreme Court case law also be mentioned:

Lalita Kumari Vs. State of UP and others[2]

The relevant portion of the Case Law is furnished below for easy reference, please[3].

“111) In view of the aforesaid discussion, we hold:

i) Registration of FIR is mandatory under Section 154 of the Code, if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation.

ii) If the information received does not disclose a cognizable offence but indicates the necessity for an inquiry, a preliminary inquiry may be conducted only to ascertain whether the cognizable offence is disclosed or not.

iii) If the inquiry discloses the commission of a cognizable offence, the FIR must be registered. In cases where preliminary inquiry ends in closing the complaint, a copy of the entry of such closure must be supplied to the first informant forthwith and not later than one week. It must disclose reasons in brief for closing the complaint and not proceeding further.

iv) The police officer cannot avoid his duty of registering offence if cognizable offence is disclosed. Action must be taken against erring officers who do not register the FIR if information received by him discloses a cognizable offence.

v) The scope of preliminary inquiry is not to verify the veracity or otherwise of the information received but only to ascertain whether the information reveals any cognizable offence.

vi) As to what type and in which cases preliminary inquiry is to be conducted will depend on the facts and circumstances of each case. The category of cases in which preliminary inquiry may be made are as under:

a) Matrimonial disputes/ family disputes
b) Commercial offences
c) Medical negligence cases
d) Corruption cases
e) Cases where there is abnormal delay/laches in initiating criminal prosecution, for example, over 3 months delay in reporting the matter without satisfactorily explaining the reasons for delay.

The aforesaid are only illustrations and not exhaustive of all conditions which may warrant preliminary inquiry.

vii) While ensuring and protecting the rights of the accused and the complainant, a preliminary inquiry should be made time bound and in any case it should not exceed 7 days. The fact of such delay and the causes of it must be reflected in the General Diary entry.

viii) Since the General Diary/Station Diary/Daily Diary is the record of all information received in a police station, we direct that all information relating to cognizable offences, whether resulting in registration of FIR or leading to an inquiry, must be mandatorily and meticulously reflected in the said Diary and the decision to conduct a preliminary inquiry must also be reflected, as mentioned above.”

Sessions Court:

In certain cases, even the Magistrate cannot understand the true essence of any complaint and do not order the police to register the FIR inspite aware of the Hon’ble Supreme Court’s order. At the point of time, the individual can approach the session court. In my experience, I have overcome with this instance. The police then the Magistrate had denied registering the FIR, then I approach the Session Court against the order of the Magistrate, the Learned Session Court criticizes the Magistrate and stated that the Magistrate did not put his brain and made an erred. It further ordered the police personnel to register the FIR.

In West Bengal, India, the session courts are held from 10:30 am to 1:30 pm, whereas the civil matters are taken up from 2:00 pm to 4:30 pm. So one should keep in mind that in order to file a petition under section 156(3) of the Criminal Procedure Code the following things: -

1. There has to be some facts of infringement.
2. You have gone to the police station to lodge a complaint.
3. The police has declined or delaying the registration of complaint.
4. Without approaching the police for registering the complaint you cannot directly approach the Magistrate or the Sessions Court under section 156(3).
5.   Registering FIR is not optional for a Police but a right for the public.
6. The complaint has not been a false or frivolous otherwise it will be boomerang and the complainant will be in legal trouble.

High Court and Supreme Court:

If the Session Court has also declined to restore the justice, (though this does not occur in normal courses) but if the individual is unsatisfied with the Sessions Court, then he/she can appeal to the concerned High Courts or the Supreme Court of India. There are two ways through which one can approach the High Courts or the Supreme Courts, one by filing a writ through the Advocates and secondly by forwarding an application addressing directly to the Chief Justices of the concerned High Courts or the Chief Justice of India stating briefly the facts and the trouble gone through and asking for intervention. If one opts the second the letters will be converted into writs though not been made for public interest[4].

The relevant provisions are furnished here for easy reference, please:-

 “3. The petitions received by post are scrutinized as per the prescribed guidelines and only such of them, as are covered by the parameters laid down therein, are placed before the Judge nominated for the purpose[5]”.

“4 (a) Letter petitions received by post, even though not in public interest, can be treated as writ petitions, if so directed by the Judge nominated for the purpose.

(b) The following individual cases can also be registered as writ petitions under Article 32 of the Constitution:

(i) complaints about harassment or torture or death in jail or by police;

(ii) complaints of atrocities on women, such as harassment for dowry, bride burning, rape, murder and kidnapping;

(iii) complaints relating to family pensions; and

(iv) complaints of refusal by police to register the case[6]”

Points to be remembered before approaching the High Courts or the Supreme Court of India: -

1. Writs matters are not lightly taken; hence no casual approach is desirable.
2. Facts and figures have to be written suitably otherwise the other party can take the advantage.
3. No anonymous letters are entertained in the High Courts as well as the Supreme Court of India[7].
4. No watsapp or SMS messages are entertained even, but only typed petitions are allowed[8].

IMPORTANT GUIDELINES ISSUED BY THE HON’BLE SUPREME COURT OF INDIA:

In Youth Bar Association of India Vs. Union of India and Others[9] the Supreme Court of India issued 10 important guidelines on the First Information Report. Those are laid here under for easy reference: -

(a) An accused is entitled to get a copy of the First Information Report at an earlier stage than as prescribed under Section 207 of the Cr.P.C.

(b) An accused who is suspecting that a criminal case may or has been initiated against his or her name may apply through an Advocate or personally to get a certified copy of the FIR. On receiving such application, the concerned police station will provide the certified FIR copy within twenty-four hours.

(c) Despite the FIR has been forwarded by the police station to the concerned Magistrate, the same has to be provided to the accused person on being application made to the police station within two working days.

(d) The most important point is that the police will have to upload the FIR copy in its official website. And whereas the police stations do not have their own website, they can take the help of the concerned State Government. The FIR copy will have to be uploaded in the concerned State Government’s website within twenty four hrs. But in exceptional cases like some kind of unavoidable circumstances or any sensitive issue the uploading of FIR can be extended to forty eight hours, but the extended time for uploading the FIR should not be extended more than seventy two hours and it will be only be related to problems on the geographical locations.

(e) The decision not to upload the FIR copy will not be taken by an officer below the rank of Deputy Superintendent of Police or any person holding equivalent post. A decision taken by the concerned police officer or the District Magistrate shall be duly communicated to the concerned jurisdictional Magistrate.

(f) The word ‘sensitive’ will include the concept of privacy due to which delay may be substantiated.

(g) Though if in any case the FIR is not uploaded, the same will not in any case be deemed as a ground to file petition under section 438[10] of the Criminal procedure Code, 1973.

(h) If the copy of FIR is not provided because the same is of sensitive in nature then the person aggrieved of the denial action of the police, he/she can appeal to the Superintendent of Police and request for the FIR copy. The Superintendent of Police shall constitute a committee of three officers after receiving such request to deal such action of denial. As far as the Metropolitan cities are concerned, the application will be forwarded to the Police Commissioner who will in return constitute a committee of three officers and the said committee will decide the application within three days from the date of receipt. Further the result of its decision will have to be communicated to the applicant within three days from the date of receipt of the application.

(i) The Police Commissioner or the Superintendent of Police will constitute the above mentioned committee with effect from 7th September 2016.

(j) If in any case the constituent bodies by police commissioner or the superintendent of police have rejected the application for FIR copy, the individual is free to appeal further to the concerned Court. On receipt of the petition by the Learned Courts, the same has to be decided within three days. This means that after receiving the application for grant of FIR copy which was denied due to sensitivity shall have to take every measure to expedite the process so that the application can be decide as soon as possible.

(k) The directions for uploading of FIR in the website of all the States shall be given effect from 15th November, 2016[11].

The petition copy of the Youth Bar Association of India can be read at http://www.livelaw.in/pil-uploading-fir-police-websites-within-24-hours-sc-issues-notice-centre-states/ (Date of visit is 08/10/17 and time of visit of the portal is 11:10 PM IST)

QUASHING A FIR:

Under section 482[12] of the Criminal Procedure Code, it laid down the provision for quashing a FIR. The most important point to be noted here is that the power to quash a FIR has not been entrusted to any Magistrate Court or Sessions Courts but only to the High Courts of the respective States[13].

Section 482 Cr.P.C. is a reminder to the High Courts that they are not merely courts of law but also courts of justice and possess inherent powers to remove injustice[14].

The procedure for invoking the inherent powers is regulated by rules framed by the High Court and the power to make such rules is conferred on the High Court by the Constitution[15].

The following are the few important points in related to the quashing of FIR (Narinder Singh & Others Vs. State of Punjab and Others): -

1. If there is some serious offence is in concern, then the parties can though reach to a mutual compromise but even the parties proceed for quashing the FIR it will be the discretionary power of the High Court to admit the prayer of quashing or not[16].
2. In Gian Singh vs. State of Punjab & Anr. It was held that “Quashing of offence or criminal proceedings on the ground of settlement between an offender and victim is not the same thing as compounding of offence”[17].
3. Power conferred under section 482 of Criminal Procedure Code are not alike of compounding offence under section 320[18] of the Act, the High Courts may even quash FIR based upon offences of non-compounding type, but while exercising such power under section 482, must be cautious.
4. When the parties have reached to an agreement or settlement and with effect of that proceed with a quashing petition under section 482 of Criminal Procedure Code in the concerned High Courts, the following factors are certainly taken into consideration:-

1. The quashing secures the ‘ends of Justice’.
2. The quashing will enable to prevent any such abusive powers of such other Courts.

1. The power conferred under section 482 of the Criminal Procedure Code will not exercised when the offence is related to any serious or heinous type of like rape, murder, dacoity etc. As these types of offences are not private in nature and no one of human intellect can expect to reach a settlement with the offenders and the victims and then furnishing a petition for quashing the FIR. The fact that all these types of offences are offences against the humanity or public at large and not any private type.
2. The quashing of FIR cases are so sensitive that the High Courts thinks that whether the rejection will impact the offender into repeat of the offence or may result into a mass injustice to the offender or not. The first time offenders or their background also plays a very important role while passing any order under section 482 of the Criminal procedure code.
3.  Like say an offence related to section 307[19] of the Indian Penal Code, though related to a serious or heinous crime, and the same is not a crime against any private but the public at large, but however the High Court do not decide the quashing petition based upon the gravity of the offence but beyond that. The High Courts shall examine as to the leveling or incorporation of Section 307 under the Indian Penal Code against the offender is correct or not too to decide the quashing petition.
4. Those cases where the matter is still under investigation stage the High Court shall take liberal view as to whether to accept the settlement or compromise deal between the offender and the victim or not before quashing the FIR.
5. Likewise, for those cases where the charge sheet is framed and the evidences are yet to start or at infancy stage, the High Court may show kindness to the offender based on the gravity of offence and past record of the offender and such other circumstances as the High Court may deem fit and proper.
6. But on the other hand, if the prosecution evidence is complete, the High Courts shall refrain itself from exercising the power conferred under section 482 of Criminal Procedure Code and shall sent back the case to the trial Court for its final findings as to the offences were conducted or not.

CONCLUSION:

After going through the above stated, the below can be drawn as the conclusion:-

1. Think coolly before writing any complaint.
2. Not all the complaint may be treated as FIR by the Police.
3. If the police do not take the complaint, we can take up the matter to their respective zone’s seniors.
4. Further there are other authorities where appeals can be made; those are Magistrate, Sessions and High or Supreme Courts.
5. Appeal is made through a written petition under section 156(3) of the Criminal Procedure.
6. Generally writ is filled in the High Courts or the Supreme Court of India against the inefficiency or arbitrariness of the Police or other authorizes.
7. False FIR may be quashed under section 482 of the Criminal Procedure Code.
8. The power to quash a FIR is conferred upon the High Court and no other Courts.
9. Quashing of FIR is viable if it is filed before filing of the charge sheet.

Note: Please do not pay bribe to the Police, because it’s better to hire any Advocate (even a new one), else be aware of the law as to “What is the Law & Where is the law”

[1] Section 156(3) in The Code Of Criminal Procedure, 1973