What to do if a Police Officer refuses to lodge an FIR?
Any person can give information to the police relating to the commission of a cognizable offence, and section 154 of the Criminal Procedure Code 1973, hereinafter CrPC, provides for the manner in which such information is to be recorded.
The statement of the informant as recorded under section 154 is usually mentioned in practice as the First Information Report or popularly called as the FIR.
FIR has nowhere been used or defined in the CrPC.
Section 154 of the CrPC deals with the disclosure of information of a cognizable crime by any person to an officer in charge of a police station. If such information is given orally then it is obligatory on the part of the police officer to reduce it to writing and under his direction read over to and thereafter signed by the informant (Sec 154 (1) CrPC). It is mandatory that a copy of such information be given to the informant free of cost (Section 154 (2), CrPC1973).
Types of offences
Cognizable offences – As per Section 2(c) of the CrPC, a “cognizable offence” means an offence for which, and “cognizable case” means a case in which a police officer may, in accordance with the first schedule or under any other law for the time being in force, arrest without warrant.
Non-cognizable offences - As per section 2(l) of the CrPC, a " non- cognizable offence" means an offence for which, and" non- cognizable case" means a case in which, a police officer has no authority to arrest without warrant.
Classification of offences has been given in First Schedule of the CrPC.
OBJECTS OF FIR
The principal object of the FIR from the point of view of the informant is to set the criminal law in motion and from the point of view of the investigating authorities is to obtain information about the alleged criminal activity so as to be able to take suitable steps for tracing and bringing to book the guilty party - Sheikh Hasib vs. State Of Bihar
What to do if a Police Officer refuses to lodge an FIR?
Section 154 (3) of the Crpc,1973 provides a statutory remedy in case the Officer in charge of the police station (known as Station house officer (SHO)) refuses to lodge an FIR after any person provides such officer of a commission of any cognizable offence. According to subsection 3 of the sec 154, a person who is aggrieved by such refusal may send the substance of such information in writing by post to the concerned Superintendent of Police 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 a police officer subordinate to him.
Complaint to Judicial Magistrate- If the FIR is not registered even after filing of a complaint to the Superintendent of police regarding the commission of a cognizable offence than the informant is legally entitled to file a complaint to the judicial magistrate. Section 190 (a) of the Crpc (Cognizance of offences by magistrates) read with Section 156(3) (Police officer’s power to investigate cognizable offences) gives power to a magistrate to register FIR and initiate an investigation into the matter.
- You can also make a complaint to the respective State Human Rights Commission or the National Human Rights Commission if the police fail to perform its duties or are acting in a biased and corrupt manner.
- A Writ Petition in the respective High Court can also be filed for the issuance of Writ of Mandamus against the defaulting Police officers, to register the FIR and directing him to state the reasons for not lodging the FIR.
The police may not investigate a complaint even if you file an FIR, when: (i) The case is not of a serious nature; (ii) The police feel that there is no sufficient ground to investigate. However, the police must record the reasons for not conducting an investigation and in the latter case must also inform the informant. (Section 157 Crpc)
FIR in case of Non Cognizable offences-
Section 155 of the CrPC deals with the investigation of non-cognizable offences, the police officer after recording the substance of information provided by the informant refer such information to the competent magistrate, and can only after his orders, investigate into such matters.
In the landmark judgment of LALITA KUMARI VS. STATE OF UTTAR PRADESH, the apex court held that –
FIR is mandatory under Section 154 CrPC if the information received by the police discloses commission of a cognizable offence. No preliminary inquiry is permissible in such a situation.
The police officer cannot avoid his duty of registering offence if a 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.
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.
As to the cases in which preliminary inquiry may be conducted, the court said this would depend on the facts and circumstances of each case. The court also provided an illustrative list of such cases, which included matrimonial/family disputes, commercial offences, medical negligence cases, corruption cases and cases where there was a delay in initiating a criminal case.
Penal action against a police officer for not registering an FIR-
As per section 166A(c) of the Indian Penal Code 1860, if the Public servant concerned fails to record any information given to him under sub-section (1) of section 154 of the Code of Criminal Procedure, 1973, in relation to a cognizable offence punishable under section 326A, section 326B, section 354, section 354B, section 370, section 370A, section 376, section 376A, section 376B, section 376C, section 376D, section 376E or section 509 of the Indian Penal Code, he is punishable with rigorous imprisonment for a term which shall not be less than six months but which may extend to two years, and shall also be liable to fine.
About the Author-
Kirti Anand Sharma is a first-year law student pursuing LL.B from Campus Law Centre, Faculty of Law, University of Delhi.
You can contact the author at https://www.linkedin.com/in/kirti-anand-bb3674131/
Editor: Vijayalakshmi Raju
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