What to do when police does not take your FIR?

What to do when FIR is not taken by the Police ?

A First Information Report is the first legal document that initiates criminal proceedings. The first information received about the commission of a cognizable offense has to be noted down by a Police Officer. It is called as First Information Report under Section 154 of CRPC.

Cognizable and Non-Cognizable Offences:

Cognizable offences are offences where the police can arrest the accused without any warrant. In such offences, the police can Suo-moto take cognizance of the offence and it does not require any sanction from the court in order to begin the investigation. On the other hand, 

Non-Cognizable offences are those in which police cannot make an arrest without taking prior assent from the court. Schedule I of the Criminal Procedure Code clearly distinguishes which offenses are cognizable and which are not.

According to section 154(1) of the Criminal Procedural Code, an FIR can be filed only in cognizable offenses. Schedule 1 of the Criminal Procedural Code clearly distinguishes Cognizable and Non-Cognizable Offences.

Who can register an FIR?

Anyone who has knowledge of the commission of cognizable offence can request the Police to register an FIR. The Police is under obligation to take down the information narrated by the informant as it is and prepare the First Information Report. The information can be given orally or in written format. Section 154(2) of the Cr.P.C lays down the procedure to be followed while registering an FIR.

What to do if Police Officer refuses to register an FIR?

The police has discretionary power regarding the registration of an FIR. However, this power is not absolute; it is subject to reasonable justifications. Following are steps to be followed if a Police Officer unreasonably denies registering an FIR:

1.   Complaint to Superintendent (SP) or DCP of that Police Officer:

According to section 154(3) of the Cr.P.C if a police officer refuses to register an FIR then a complaint in writing and by post can be sent to the Superintendent or DCP of Police concerned. If the Superintendent or DCP is satisfied that the subordinate police officer is unreasonably denying to register an FIR then the superintendent or DCP shall either investigate the case himself or direct an investigation to be made by any police officer subordinate to him.

2. Complaint to Judicial Magistrate:

If Police machinery doesn’t register FIR then a direct complaint can be given to the Judicial Magistrate. Section 156(3) read with section 190 of the Cr.P.C. provides that an application may be sent to the Judicial Magistrate Jmfc or Metropolitan Magistrate mm seeking a direction to the police to register an FIR.  

Key Essentials of the Complaint to the Hon’ble Court of Magistrate under Section 156(3) of the Code of Criminal Procedure, 1973 covering the topics:- 

1.   Compliance of Section 154(1) CrPC

2.   When Police refuses to take complaint

3.   Complaint under Section 154(3) CrPC

4.   Memo of Parties to the Complaint to the Magistrate

5.   Complaint to the Magistrate under Section 156(3) CrPC

6.   Jurisdiction of the Magistrate

7.   Prayer Clause

8.   Action Taken Report

9.   Application Of Section 156(2) CrPC

10. Compliance of the Ratio of Priyanka Srivastava

11.  Compliance of the Ratio Of Lalit Kumari

12. Cases requiring Preliminary Enquiry 

13. Annexure's of the Complaint

14.  Certificate of Compliance of Section 65B of the Indian Evidence Act, 1872

This would give you fair idea about the Complaint to the Hon’ble Court of Magistrate under Section 156(3) of the Code of Criminal Procedure, 1973.

Case Laws

1. Lalita Kumari v. Govt. of U.P., (2014) 2 SCC 1

2. Priyanka Srivastava v. State of U.P., (2015) 6 SCC 287

Police Closure Report in Cyber Crime cases

Police Closure Reports after investigation in cyber crime cases :

1. Art 21 of the Constitution guarantees fundamental right to life and personal liberty. This article of Constitution has been interpreted by the Judiciary with widest amplitude so as to include several other rights such as right to food and shelter, and other rights and most importantly the right to fair trial which includes the right to fair investigation. In Anbaizhagan’s case, the apex court observed that, ‘if the criminal trial is not free and fair and not free from bias the judicial fairness and the criminal justice system would be at stake, shaking the confidence of the public in the system and woe would be the rule of law’,¹ Trial should be fair to all concerned and ‘denial of fair trial is as much an injustice to the accused as is to the victim and the society.²

2. The right to fair trial includes ‘Fair Investigation’,³ Fair trial and fair

investigation are pre-requisites to get justice which the parties

deserve as per law, and one without the other cannot yield to fair

justice. A victim of a crime is entitled to fair investigation⁴ and if

required the case can be entrusted to a specialized agency like CBI and the courts have enough power to do complete justice to the

parties by giving appropriate directions.

3. The investigating authorities have been empowered to submit a

report to the magistrate that there is no evidence or reasonable grounds or suspicion to justify the forwarding of the accused to the Magistrate and to release the accused from the custody on his executing a bond with or without surety, as the police officer direct, to appear, if and when so required, before a Magistrate empowered to take cognizance of the offence on a police report and to try the accused or commit for trial.⁵ The 41st report of the Indian Law Commission recommended that an accused person must get a fair trial in accordance with the principles of natural justice, efforts must be made to avoid delay in investigation and trial and the procedures should aim at ensuring fair deal to the poorer sections of the society.⁶ The report under Sec 169 Cr Pc is referred to as a ‘closure report’. The Magistrate however, can direct the police to make further investigation. The scope of the power to direct further investigation when the police report states that there is no evidence to proceed further, and really there is no evidence in the case at all, whether it would be an order which can be justified or held valid needs examination.

 

4. In a case where the Director-General of Anti-Corruption Bureau gave an order and a report under Sec 169 Cr Pc and it was a ‘speaking order’ containing reasons that there is absolutely no evidence to prosecute the accused, the direction given by the Magistrate when the case itself does not contain any evidence to proceed further, the direction of the court has to be viewed as bad in law. This view finds support when there is a finding by Lokayukta that there is no material against the accused. As the apex court ruled that a reference is made to the investigating officer or the courts to Section 169 Cr Pc, the same has to be read as a reference to Sec 173 Cr Pc.⁷

5. The power of the court to take cognizance of a case, it is to examine whether there is sufficient ground for taking judicial notice of the offence in order to initiate further proceedings. The apex court examined this issue in Chief Enforcement Officer’s case⁸ and stated thus:-

“The expression ‘cognizance’ has not been defined in the

code. But the word ‘cognizance’ is of indefinite import. It has

no esoteric or mystic significance in criminal law. It merely

means ‘become aware of’ and when used with reference to a

court or a Judge, it connotes ‘to take notice of judicially’. It indicates the point when a court or a Magistrate takes judicial notice of an offence with a view to initiating proceedings in respect of such offences said to have been committed by someone”.

It was further elucidated thus:-⁹

i) Taking cognizance does not involve any formal action of any

kind;

ii) It occurs as soon as the Magistrate applies his mind to the

suspected commission of an offence;

iii) It is prior to the commencement of criminal proceedings;

iv) It is an indispensable requisite for holding a valid trial;

v) Cognizance is taken of an offence and not an offender;

vi) Whether the Magistrate has taken cognizance of an offence or

not depends on the facts and circumstances of each case, as no

universal application rule can be laid down;

vii) Under Sec 190 of Cr Pc, it is the application of the Judicial

mind to the averments in the complaints that constitutes

‘cognizance’;

viii) The Magistrate has to consider whether there is sufficient

ground for proceeding further and not sufficient ground for conviction, as the sufficient ground for conviction can be

considered only at the trial;

ix) If there is sufficient ground for proceedings, then the

Magistrate can issue the process under Sec 204 Cr Pc.¹⁰ The Magistrate has the undoubted discretion, to be judicially exercised in determining whether there is a prime-facie case to take cognizance¹¹ and

x) Despite a report of the police that no case is made out, the Magistrate can reject the report and take cognizance and to order further investigation under Sec 173 (8) Cr Pc.

6. The main object for taking cognizance is to commence proceedings against the accused. At this stage of cognizance, court is concerned with the involvement of the person and not of his innocence. When there is no material to proceed, there is no point in taking cognizance and proceeding further. The prosecution becomes futile exercise when the materials available do not show an offence is committed. The apex court observed thus:-

i) Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set in motion as a matter of course;¹²

ii) The process of criminal court shall not be permitted to be used as a weapon of harassment. Once it is found that there is no material on record to connect an accused with the crime, there is no meaning in prosecuting him. It would be a sheer waste of public time and money to permit such proceedings to continue against such a person;¹³

iii) Unmerited and undeserved prosecution is an infringement of the guarantee under Art 21 of the Constitution;¹⁴ and

iv) No court can issue a positive direction to an authority to give sanction for prosecution, when there is a police report that no case is made out to prosecute, unless the court finds otherwise.¹⁵ Criminal law should not be used for vexatious prosecution. (In case where sanction is required to prosecute such as for offences under the Prevention of Corruption Act etc.

7. Thus, the fair investigation requires that the police should thoroughly examine the entire evidence to find out whether any prime-facie is made out against the accused. If no case is made out, there should be a closure report under Sec 169 which will be regarded as a report under Sec 173 Cr Pc.

It is again the duty of the Magistrate to find out whether there is any material on record to proceed against the accused. If there is no material to proceed further, there is no point in taking cognizance. In other words, the fair investigation and trials need the protection of an accused from unwanted and vexatious prosecutions to avoid harassment to persons concerned.

References 

1 AIR 2004 SC P.524.

2 Best Bakery Case, for details refer to AIR 2004 SC P.3114.

3 Kalyani Baskar Vs. M.S.Sampoornam, (2007)2 SCC P.259.

4 Nirmal Singh Kahlon’s case, AIR 2006 SC P.1367.

5 See for details Sec 169 of the Criminal Procedure Code, 1973. 

6 See for details report submitted in September, 1969.

7 Sanjay Sinh Ram Rao Chavan Vs. Dattatray Gulab Rao Phalke (2015)3 SCC P.126 at P.133 

8 (2008)3 SCC P.492 at P.499.

9 Ibid, See para 20.

10 The expression Cr PC has been used for the Criminal Procedure Code, 1973 throughout this study. 

11 See for details Nagawwa Vs. Veeranna Shivaligappa Konjaligi (1976)3 SCC P.736.

12 Pepsi Foods Ltd., Vst. Judicial Magistrate (1998)3 SCC P.749 Para 28.

13 State of Karnatak Vs. Muniswamy (1977)2 SCC P.699 At P.803 Para 8.

14 State of Bihar Vs. P.P.Sharma, (1992) Supp (1) SCC P.222 at P.265 Para 60.

15 Mansukhlal Vithaldas Chauhan Vs. State of Gujarath (1997)7 SCC P.622 at P.635 Para 32.

 

Arguments in Court - cyber crime and data protection cases

 Basic structure of legal argument

• (1) If conditions A, B and C are satisfied, then legal consequences X, Y and Z follow. (Major premise: legal rule)

• (2) Conditions A, B and C are satisfied (or not). (Minor Premise: the facts of the case)

• (3) Therefore, legal consequences X, Y and Z do (or do not) follow. (Conclusion: legal judgment in the case).

As I mentioned in part one, the first premise of this argument structure tends to get most of the attention in law schools. The second premise — establishing the actual facts of the case — tends to get rather less attention. This is unfortunate for at least three reasons.

First, in practice, establishing the facts of a case is often the most challenging aspect of a lawyer’s job. Lawyers have to interview clients to get their side of the story. They have to liaise with other potential witnesses to confirm (or disconfirm) this story. Sometimes they will need to elicit expert opinion, examine the locus in quo (scene of the crime/events) and any physical evidence, and so on. This can be a time-consuming and confusing process. What if the witness accounts vary? What if you have two experts with different opinions? Where does the truth lie?

Second, in practice, establishing the facts is often critical to winning a case. In most day-to-day legal disputes, the applicable legal rules are not in issue. The law is relatively clearcut. It’s only at the appeal court level that legal rules tend to be in dispute. Cases get appealed primarily because there is some disagreement over the applicable law. It is rare for appeal courts to reconsider the facts of case. So, in the vast majority of trials, it is establishing the facts that is crucial. Take, for example, a murder trial. The legal rules that govern murder cases are reasonably well-settled: to be guilty of murder one party must cause the death of another and must do this with intent to kill or cause grievous bodily harm. At trial, the critical issue is proving whether the accused party did in fact cause the death of another and whether they had the requisite intent to do so. If the accused accepts that they did, they might try to argue that they have a defence available to them such as self-defence or insanity. If they do, then it will need to be proven that they acted in self defence or met the requirements for legal insanity. It’s all really about the facts.

Third, the legal system has an unusual method of proving facts. This is particularly true in common law, adversarial systems (which is the type of legal system with which I am most familiar). Courts do not employ the best possible method of fact-finding. Instead, they adopt a rule-governed procedure for establishing facts that tries to balance the rights of the parties to the case against both administrative efficiency and the need to know the truth. There is a whole body of law — Evidence Law — dedicated to the arcana of legal proof. It’s both an interesting and perplexing field of inquiry — one that has both intrigued and excited commentators for centuries.

I cannot do justice to all the complexities of proving facts in what follows. Instead, I will offer a brief overview of some of the more important aspects of this process. I’ll start with a description of the key features of the legal method for proving facts. I’ll then discuss an analytical technique that people might find useful when trying to defend or critique the second premise of legal argument. I’ll use the infamous OJ Simpson trial to illustrate this technique. I’ll follow this up with a list of common errors that arise when trying to prove facts in law (the so-called ‘prosecutor’s fallacy’ being the most important). And I’ll conclude by outlining some critiques of the adversarial method of proving facts.

1. Key Features of Legal Proof

As mentioned, the legal method of proving facts is unusual. It’s not like science, or history, or any other field of empirical inquiry. I can think of no better way of highlighting this than to simply list some key features of the system. Some of these are more unusual than others.

Legal fact-finding is primarily retrospective: Lawyers and judges are usually trying to find out what happened in the past in order to figure out whether a legal rule does or does not apply to that past event. Sometimes, they engage in predictive inquiries. For example, policy-based arguments in law are often premised on the predicted consequences of following a certain legal rule. Similarly, some kinds of legal hearing, such as probation hearings or preventive detention hearings, are premised on predictions. Still, for the most part, legal fact-finding is aimed at past events. Did the accused murder the deceased? Did my client really say ‘X’ during the contractual negotiations? And so on.

Legal fact-finding is norm-directed:Lawyers and judges are not trying to find out exactly what happened in the past. Their goal is not to establish what the truth is. Their goal is to determine whether certain conditions — as set down in a particular legal rule — have been satisfied. So the fact-finding mission is always directed by the conditions set down in the relevant legal norm. Sometimes lawyers might engage in a more general form of fact-finding. For instance, if you are not sure whether your client has a good case to make, you might like to engage in a very expansive inquiry into past events to see if something stands out, but for the most part the inquiry is a narrow one, dictated by the conditions in the legal rule. At trial, this narrowness becomes particularly important as you are only allowed to introduce evidence that is relevant,/i> to the case at hand. You can’t go fishing for evidence that might be relevant and you can’t pursue tangential factual issues that are not relevant to the case simply to confuse jurors or judges. You have to stick to proving or disputing the conditions set down in the legal rule.

Legal fact-finding is adversarial (in common law systems): Lawyers defend different sides of a legal dispute. Under professional codes of ethics, they are supposed to do this zealously. Judges and juries listen to their arguments. This can result in a highly polarised and sometimes confusing fact-finding process. Lawyers will look for evidence that supports their side of the case and dismiss evidence that does not. They will call expert witnesses that support their view and not the other side’s. This is justified on the grounds that the truth may emerge when we triangulate from these biased perspectives but, as I will point out later on, this is something for which many commentators critique the adversarial system. There is a different approach in non-adversarial system. For instance, in France judges play a key role in investigating the facts of a case. At trial, they are the ones that question witnesses and elicit testimony. The lawyers take a backseat. Sometimes this is defended on the grounds that it results in a more dispassionate and less biased form of inquiry but this is debatable given the political and social role of such judges, and the fact that everyone has some biases of their own. Indeed, the inquisitorial system may amplify the biases of a single person.

Legal fact-finding is heavily testimony-dependent: Whenever a lawyer is trying to prove a fact at trial, they have to get a witness to testify to this fact. This can include eyewitnesses (people who witnessed the events at issue in the trial) or expert witnesses (people who investigated physical or forensic evidence that is relevant to the case). The dependence on testimony can be hard for people to wrap their heads around. Although physical evidence (e.g. written documents, murder weapons, blood-spattered clothes etc) is often very important in legal fact-finding, you cannot present it by itself. You typically have to get a witness to testify as to the details of that evidence (confirming that it has not been tampered with etc).

Legal Fact-Finding is probabilistic: Nothing is ever certain in life but this is particularly true in law. Lawyers and judges are not looking for irrefutable proof of certain facts. They are, instead, looking for proof that meets a certain standard. In civil (non-criminal trials), facts must be proved ‘on the balance of probabilities’, i.e. they must be more probable than not. In criminal trials, they must be proved ‘beyond reasonable doubt’. What this means, in statistical terms, is unclear. The term ‘reasonable doubt’ is vague. Some people might view it as proving someting is 75% likely to have occurred; others may view it as 90%+. There are some interesting studies on this (LINK). They are not important right now. The important point is that legal proof is probabilistic and so, in order to be rationally warranted, legal fact-finders ought to follow the basic principles of probability theory when conducting their inquiries. This doesn’t mean they have to be numerical and precise in their approach, but simply that they should adopt a mode of reasoning about facts that is consistent with the probability calculus. I’ll discuss this in more detail below.

Legal fact-finding is guided by presumptions and burdens of proof (in an adversarial system): Sometimes certain facts do not have to be proved; they are simply presumed to be true. Some of these presumptions are rebuttable — i.e. evidence can be introduced to suggest that what was presumed to be true is not, in fact, true — sometimes they are not. The best known presumption in law is, of course, the presumption of innocence in criminal law. All criminal defendants are presumed to be innocent at the outset of a trial. It is then up to the prosecution to prove that this presumption is false. This relates to the burden of proof. Ordinarily, it is up to the person bringing the case — the prosecution in a criminal trial or the plaintiff in a civil trial — to prove that the conditions specified by the governing legal rule have been satisfied. Sometimes, the burden of proof shifts to the other side. For instance, if a defendant in a criminal trial alleges that they have a defence to the charge, it can be up to them to prove that this is so, depending on the defence.

Legal fact-finding is constrained by exclusionary rules of evidence:Lawyers cannot introduce any and all evidence that might help them to prove their case. There are rules that exclude certain kinds of evidence. For example, many people have heard of the so-called rule against hearsay evidence. It is a subtle exclusionary rule. One witness cannot testify to the truth of what another person may have said. In other words, they can testify to what they may have heard, but they cannot claim or suggest that what they heard was accurate or true. There are many other kinds of exclusionary rule. In a criminal trial, the prosecution cannot, ordinarily, provide evidence regarding someone’s past criminal convictions (bad character evidence), nor can they produce evidence that was in violation of someone’s legal rights (illegally obtained evidence). Historically, many of these rules were strict. More recently, exceptions have been introduced. For example, in Ireland there used to be a very strict rule against the use of unconstitutionally obtained evidence; more recently this rule has been relaxed (or “clarified”) to allow such evidence if it was obtained inadvertently. In addition to all this, there are many formal rules regarding the procurement and handling of forensic evidence (e.g. DNA, fingerprints and blood samples). If those formal rules are breached, then the evidence may be excluded from trial, even if it is relevant. There is often a good policy-reason for these exclusions.

 

Those are some of the key features of legal fact-finding, at least in common law adversarial systems. Collectively, they mean that defending the second premise of a legal argument can be quite a challenge as you not only have to seek the truth but you have to do so in a constrained and, in some sense, unnatural way.