Filing a FIR or Criminal Complaint under CRPC

Introduction

Reporting the commission of a crime is the foremost step in setting the criminal law proceedings in motion. The general public has an impression that the process of reporting an offence and setting the law in motion is kafkaesque. Though it is true that the statutory provisions on reporting crimes are filled with jargons, the procedure, in essence, is direct and straightforward. The fundamental question that arises on the subject of reporting crimes is, who can report about the commission of a crime and to whom? As per the procedural laws in India, it is not necessary that only the person who is victimized by the crime needs to report the same. Any person can pass on the information to the law enforcement agency. 

With respect to the question “to whom”, the information can be given both to the police as well as the jurisdictional Judicial Magistrate. A person who wishes to report the commission of an offence has two options, either to give information to the police or to file a complaint in crpc to the magistrate. While the former method proceeds with an investigation by police and trial thereof, the latter involves prosecution by private persons.

Difference between Complaint and Information

Information - As per Section 154 CrPC, any information regarding  commission of a cognizable offence can be reported to the Police by a witness or victim or a person who has knowledge about the act. The said information will be recorded as FIR. 

Complaint - Whereas, as per Section 2(d) of CrPC,  a criminal complaint or Private Complaint to magistrate under CrPC is an allegation made to the Magistrate in writing or verbal form which mentioned about the offence committed by a person whether known or unknown and does not include a police report.  

Difference

Though in common parlance, verbal information given to a police officer is named as “complaint”, as per CrPC, it will still be treated as information and not a complaint.

Can FIR be filed for Non Cognizable offense 

An FIR can be registered only for a cognizable offence whereas a complaint can be filed for both cognizable as well as non-cognizable offence. Hence, an FIR for Non Cognizable offense cannot be filed.

An FIR is lodged at a police station nearer to the crime place based on oral or verbal information while a complaint is made to the Magistrate in writing or verbally.

In case of an FIR, the police will proceed to investigate the offence and upon completion of the investigation, the final report will be filed to the magistrate. From thereon, the trial will be conducted by the state. The original informant will be “de-facto complainant”  and will be arrayed as a witness. The State will remain “de-jure complainant”

Whereas in the case of Private criminal Complaint, the private person who filed the complaint will prosecute the accused person in Private complaint under CrPC.

Procedure for Registration of FIR :

Information to the local Police station:

As stated earlier, the information can be oral as well as verbal. 

The person who is affected or witnessed the commission of a crime can inform the police by making a phone call to the police station or by going in person.

Even a call made to the emergency helpline 100 can be treated as information for the purposes of registering an FIR.

The police officer who is receiving the said information has a duty to register the FIR if the information makes out a “cognizable offence”. The Code of Criminal Procedure classifies the offences as “cognizable” and “non-cognizable”. The classification is based on the gravity of each offence and the punishment provided therein. Generally, serious offences like murder, rape, robbery are cognizable offences. Whereas offences like defamation, bigamy, Cheque dishonour are non-cognizable offences.

If it is doubtful whether the allegations made in the information make out a cognizable offence, The police officer will issue a “CSR”, which is nothing but an acknowledgement of receipt of the compliant and proceed to conduct “Preliminary enquiry”

As decided in Lalita Kumari’s case, the preliminary enquiry is only for the purpose of determining whether the allegations make out a cognizable offence. It is not for the purpose of testing the veracity of the information. The police officer cannot avoid his duty of registering the offence if a cognisable offence is disclosed. The action must be taken against the erring officers who do not register the FIR if information received in such cases discloses a cognisable offence. 

In Lalita Kumari’s case, the court provided a detailed list of cases wherein Preliminary enquiry may be conducted. The list included matrimonial or family disputes, medical negligence cases, commercial offences, corruption cases and cases where a delay occurred in initiating a criminal case

It also ordered that a preliminary inquiry must be initiated within 7 days in any case, which was later increased in March 2014 to 15 days in normal cases and 6 weeks in exceptional cases. 

Information to the Superior officer.

If the officer-in-charge of a police station refuses to register the FIR, the informant can approach the Superintendent of Police of the concerned District under section 154(3) CrPC.

Magistrate order for Registration of FIR:

If both the local police station and the superior officer refuses to register an FIR, the informant can approach the Magistrate under Section 156(3) CrPC seeking direction to the police to investigate.

As per the mandate of Priyanka Srivatsva’s case, the complaint u/s 156(3) CrPC should be made in the form of an affidavit. 

As per Priyanka Srivatsva’s case, it is also mandatory to exhaust the above-mentioned procedure of approaching the local police station and superior officer before approaching the magistrate u/s 156(3) CrPC.

The filed application must have some substance. Registering an FIR should be ordered only upon finding serious allegations or commission of a cognizable offence requiring investigation.

High Court direction for Registration of FIR

If the learned magistrate passes an order refusing to direct investigation to the police officers or if there is inaction on the part of the police, the aggrieved persons can file a Writ Petition or a Petition for direction u/s 482 CrPC, before the concerned High Court and seek a direction for registration of FIR. 

Complaint to Judicial Magistrate:

A victim or the person who has knowledge about the commission of a crime can file a complaint under Section 200 in the Code Of Criminal Procedure, 1973. 

The Magistrate who takes the cognisance of an offence upon complaint examines the complainant and the witness, if any, upon oath. The complaint then gets reduced to writing and signed by the complainant and the witnesses along with the Magistrate. 

However, when the complainant makes the complaint in writing, the Magistrate does not need to examine the complainant and the witness in cases: 

a) if the complainant is a public servant in discharge of his official duties  (incase of NDPS Act, PMLA, RBI Act etc)

b) if the Magistrate puts the case for any inquiry or trial to another Magistrate under Section 192

Inquiry/ Investigation:

If it is doubtful for the learned Magistrate, whether there are sufficient grounds for proceeding, the Learned Magistrate may inquire himself or order an investigation to be made by police or any other person.

The inquiry or investigation is only for the purpose of deciding whether there are sufficient grounds for proceeding. 

Issuance of Process

If the magistrate is satisfied with or without the inquiry/investigation that there is sufficient ground to proceed, the magistrate will issue summons to the accused and proceed with the inquiry and trial.

If the magistrate refuses to issue a process and dismisses the complaint, the aggrieved person can approach the Sessions Court by filing a revision petition.