Police is not recording FIR
Some times the Police may be reluctant to record information given to the
Police, for one reason or the other. But as per the Judgment of a Constitution
Bench of Supreme Court of India in Lalita Kumari v. Govt of UP (2013) SC (5J),
the Police Officers are bound to Register FIR upon receiving information of
commission of a cognizable offence in India. The important issue which arises
for consideration in the referred matter was whether "a police officer is bound
to register a First Information Report (FIR) upon receiving any information
relating to commission of a cognizable offence under Section 154 of the Code of
Criminal Procedure, 1973 (in short "the Code") or the police officer has the
power to conduct a "preliminary inquiry" in order to test the veracity of such
information before registering the same?. The Bench after analysing the history
of provisions related to FIR observed that the legislative intent in both old
codes and the new code manifests for compulsory registration of FIR in a case of
cognizable offence without conducting any Preliminary Inquiry.
Even though some times the Police may not be recording FIR on information given
by you. In such situations the complainant may chose the following other
remedies.
1. Forward your Complaint to Senior Police Officer
If the Police is refusing to record FIR on the information given
by you, the complaint may send to the Senior Police officers
like Commissioner of Police, Deputy Superintendent of Police (DSP),
or Senior Superintendent of Police SSP) under section 154 (3) of
CRPC. If satisfied that such information discloses the
commission of a cognizable offence, the officer 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.
2. File Complaint before Chief Metropolitan Magistrate (CMM)
or Chief Judicial Magistrate (CJM)
If the Police refuses to register FIR, the aggrieved person may
approach the Court of Chief Metropolitan Magistrate or Chief
Judicial Magistrate at the Concerned district. The Magistrate
may assign complaint to the concerned Metropolitan Magistrate or
Judicial Magistrate. When the matter would come up in before the
concerned Magistrate, the Magistrate may proceed with the
complaint for enquiry. The Magistrate may also order
investigation by the Police under Section 156(3) and Section 202
of CRPC.
Consequent upon such an order by the Court for investigation,
police has to register a case by recording of FIR in the manner
indicated above. Police cannot refuse to register a case, when
complaint is so sent to police for investigation.
Sometimes, only an application under section 156(3) CrPC is
filed before the Court seeking directions to the police for
registration of case. There are cases where along with the
criminal complaint, such an application is separately filed
seeking directions to the police for registration of case. In
such cases, Magistrate may allow the prayer and issue directions
to the police under section 156(3) of CrPC for registration of
FIR. The Magistrate may even disallow such a prayer and while
taking cognizance of the offence list the complaint for
recording of pre-summoning evidence of complainant so as to
enquire into the matter himself, without referring the matter to
police for investigation.
Recent Judgment of Supreme Court of India regarding
Registration of FIR
In a Judgment in February 2016 a Supreme Court Bench comprising
of Justices M. Y. Eqbal and Shiva Kirti Singh reiterated that
Registration of FIR is mandatory when a Magistrate orders
investigation U/S 156(3) of CrPC. The Court explained that
registration of an F.I.R. involves only the process of recording
the substance of information relating to commission of any
cognizable offence in a book kept by the officer in charge of
the concerned police station. In paragraph 11 of the
aforementioned case, the law was further elucidated by pointing
out that to enable the police to start investigation, it is open
to the Magistrate to direct the police to register an F.I.R. and
even where a Magistrate does not do so in explicit words but
directs for investigation under Section 156(3) of the Code, the
police should register an F.I.R. Because Section 156 falls
within chapter XII of the Code which deals with powers of the
police officers to investigate offences, the police officer
concerned would always be in a better position to take further
steps contemplated in Chapter XII once F.I.R. is registered in
respect of the concerned cognizable offence.
Power under section 156(3) of CRPC is exercisable at
pre-cognizance stage. In other words, in the case of complaint
regarding the commission of a cognizable offence, the power
under section 156(3) can be invoked by the Magistrate before
taking cognizance of the offence under Section 190(1)(a).
An order made under section 156(3) is in the nature of
peremptory reminder or intimation to the police to exercise
their plenary powers of investigation under section 156(1) of
CrPC. Such an investigation embraces the entire continuous
process which begins with the collection of evidence under
section 156 and ends with a report or charge-sheet.
The Supreme Court of India in Subhkaran Luharkuka vs. State
(Government of NCT of Delhi), 2010 (3) JCC 1972, has laid down
certain guidelines for the Magistrate while dealing with
application under Section 156(3) of CrPC.
"Of course, it is open to the Magistrate to proceed under
Chapter XII of the Code when an application under Section 156(3)
of the Code is also filed along with a complaint under Section
200 of the Code if the Magistrate decides not to take cognizance
of the complaint. However, in that case, the Magistrate, before
passing, any order to proceed under Chapter XII, should only
satisfy himself about the pre-requisites as aforesaid, but,
additionally, he should also be satisfied that it is necessary
to direct Police investigation in the matter for collection of
evidence which is neither in the possession of the complainant
nor can be produced by the witnesses on being summoned by the
Court at the instance of complainant, and the matter is such
which calls for investigation by a State agency.
The Magistrate must pass an order giving cogent reasons as to
why he intends to proceed under Chapter XII instead of Chapter
XV of the Code."
As explained above, the Magistrate is required to furnish cogent
reasons in the order dealing with application under section
156(3) of CrPC.
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