(This article is written by Ms. Ira Arora. She is a student of the Faculty of Law, University of Delhi)
What is a Complaint?
Section 2(d), Code of Criminal Procedure, 1973
"Complaint" means any allegation made orally or in writing to a Magistrate, with a view to
his taking action under this code, that some person, whether known or unknown, has
committed an offence, but does not include a police report.
Explanation.- A report made by a police officer in a case which discloses, after investigation,
the commission of a non- cognizable offence shall be deemed to be a complaint; and the
police officer by whom such report is made shall be deemed to be the complainant.
Requisite of a complaint :-
1. Oral or a written allegation.
2. Commission of an offence by some known or unknown person.
3. Complaint must be made to a Magistrate.
4. Complainant can be any person aware of the offence.
Apart from the cases of defamation and marriage, a complaint can be made by any person other than the aggrieved person.
Allegation which do not amount to an offence would not be a complaint.
Complaints are lodged in respect of both cognizable and non-cognizable offences.
There is no prescribed format for lodging a complaint.
A complaint can be made orally or written, it may also be sent by a post or by a telegram.
A complaint of a criminal case is same as a ‘plaint’ in civil case.
Section 2(r), Code of Criminal Procedure, 1973
"Police Report" means a report forwarded by a police officer to Magistrate under sub-
section (2) of section 173.
Police Report also known as ‘Incident Report’ is a physical record of the details of all the
facts, circumstances and timeline of event surrounding an incident.
In Mahendra Pal Sharma v. State of UP [2003, CrLJ 698(ALL)]
It was ruled that, a “police report” has been excluded from the definition of complaint, but
report made by the police officer shall be deemed to be the complaint in a case where after
investigation it discloses the commission of a non-cognizable offence. In such a case, the police officer shall be deemed to be the complainant.
Section 2(c), Code of Criminal Procedure, 1973
"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.
Section 2(l), Code of Criminal Procedure, 1973
"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.
In case of cognizable offences, a police officer can arrest an accused without a warrant but in case of non-cognizable offences he cannot arrest or investigate into such an offence without authorization in this behalf by the magistrate.
In case of cognizable offences, an F.I.R forms the basis for putting the investigative machinery into motion.
How to register FIR?
First Information Report
A victim or any person who witnessed the commission of a crime can go to the police station and report about the crime committed. The designated officer writes down the information in a prescribed format, is called FIR. FIR can be registered under Section 154, CrPC.
Section 154, Code of Criminal Procedure, 1973
154. Information in cognizable cases.
(1) Every information relating to the commission of a cognizable offence, if given orally to an
officer in charge of a police station, shall be reduced to writing by him or under his direction, and be read Over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf.
(2) A copy of the information as recorded under sub- section (1) shall be given forthwith,
free of cost, to the informant.
(3) Any person aggrieved by a refusal on the part of an officer in charge of a police station to record the information referred to in subsection (1) may send the substance of such information, in writing and by post, to the Superintendent of Police concerned 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 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.
Object of FIR :-
To obtain true version of events connected with the crime.
FIR also provides a check on the undesirable tendency on the part of the prosecution to fill the gaps on their own.
Essentials of FIR:-
The information must relate to the commission of a cognizable offence.
The information must be given to the office- in-charge of the police station.
It must be earliest report relating to the commission of a crime.
It must be in writing and must be signed by the informant.
The information reduced in writing must be read out to informant and a copy thereof should be given to informant forthwith free of cost.
The substance of the information must be entered in Station Diary or General Diary.
Where FIR is lodged?
The general rule is that ordinarily the information about the offence committed to
be given to the police station having territorial jurisdiction where the offence has
been committed. But this does not mean that it cannot be lodged elsewhere.
In State of AP v. Punati Ramube [1993 CrLJ 3684(SC)]
The police constable refused to record the complaint on the ground that the said police station has no territorial jurisdiction over the place of crime.
It was decided that refusing to record the complaint was a dereliction of duty on the part of the constable because any lack of territorial jurisdiction could not have prevented the constable from recording information about the cognizable offence and forwarding the same to the police station having jurisdiction over the area in which the crime was said to have been committed.
Delay in filing FIR :-
Delay results in embellishment and the report gets bereft of the advantage of spontaneity. There is also danger of introduction of a colored version, exaggerated account or concocted story as a result of deliberation or consultation. Note:- Mere delay in lodging FIR as a matter of law is not fatal for prosecution. But the delay must be satisfactorily explained. In Harbans Kaur v. State of Haryana [2005 CrLJ 2199 (SC)]
It was held that even a long delay in lodging FIR in murder can be condoned if witnesses have no motive of implicating accused and have given plausible reason for delay. No duration of time in the abstract can be fixed as reasonable giving information of a crime to the police, the question of reasonable time being a matter of determination by the court in each case.
In State of HP v. Shreekant Shekari [2004 CrLJ 4232 (SC)]
A teacher allegedly raped his student. Incident wasn’t disclosed because of threat. The mother of victim lodged the FIR after several months.
It was held by the SC that the unusual circumstances in this case, satisfactorily explained the delay in lodging of the FIR. In any event delay per se is not a mitigating circumstance for the accused when the accusations of rape are involved. In this case the victim was totally unaware of the catastrophe which had befallen to her. That being so, the mere delay in lodging FIR does not in any way render prosecution version brittle.
In lalita Kumari v. Govt. of UP [(2014) 2 SC]
It has been categorically ruled that the provisions of section 154(1), crpc is mandatory and the officer concerned is duty bound to register the case on the basis of information disclosing commission of cognizable offence. In other words, it is a mandatory provision.
In State of Assam v. U.N. Rajkhowa [1975 Cri LJ 354]
The court held that it is worthwhile to emphasise here that an information to have the status of FIR under section 154 must be an information relating to the commission of a cognizable offence and it must not be vague but define enough to enable the police to start investigation.
In State of Haryana v. Bhajan Lal [1992 Supp (I) SCC 355]
It has been clarified by the SC that since the word “information” in section 154 is not qualified as “reasonable” it is the duty of the police to register the information under section 154.
In State of UP v. R.K. Srivastava [(1989) 4 SCC 59]
It has been observed by SC that, “if the allegations made in the FIR are taken at their face value and accepted in their entirety do not constitute an offence, the criminal proceedings instituted on the basis of such FIR should be quashed.”
Though the FIR is not substantive evidence, it can be used to corroborate the informant under section 157 of Evidence Act, 1872, if the informant is called as a witness at the time of trial.
Section 157, Indian Evidence Act, 1872
157. Former statements of witness may be proved to corroborate later testimony as to same fact.—In order to corroborate the testimony of a witness, any former statement made by such witness relating to the same fact, at or about the time when the fact took place, or before any authority legally competent to investigate the fact, may be proved.
It can also be used to contradict the informant under section 145 of Evidence Act, if the informant is called as a witness at the time of trial.
Section 145, Indian Evidence Act, 1872
Cross-examination as to previous statements in writing.—A witness may be cross-examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him, or being proved; but, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him.
Exceptions to the provision of mandatory registration of FIR
One of the instance is Medical Negligence :-
In Jacob Mathew v. State of Punjab [(2005) 6 SCC 1]
The court held that the service which the medical profession renders to human beings is probably the noblest of all, and hence there is a need for protecting doctors from frivolous or unjust prosecutions.
What is an investigation?
Section 2(h), Code of Criminal Procedure, 1973
"Investigation" includes all the proceedings under this Code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorised by a Magistrate in this behalf.
Section 157. Procedure for investigation preliminary inquiry.
(1) If, from information received or otherwise, an officer in charge of a police station has reason to suspect the commission of an offence which he is empowered under section 156 to investigate, he shall forthwith send a report of the same to a Magistrate empowered to take cognizance of such offence upon a police report and shall proceed in person, or shall depute one of his subordinate officers not being below such rank as the State Government may, by general or special order, prescribe in this behalf, to proceed, to the spot, to investigate the facts and circumstances of the case, and, if necessary, to take measures for the discovery and arrest of the offender; provided that-
(a) when information as to the commission of any such offence is given against any person by name and the case is not of a serious nature, the officer in charge of a police station need not proceed in person or depute a subordinate officer to make an investigation on the spot;
(b) if it appears to the officer in charge of a police station that there is no sufficient ground for entering on an investigation, he shall not investigate the case.
(2) In each of the cases mentioned in clauses (a) and (b) of the proviso to sub- section (1), the officer in charge of the police station shall state in his report his reasons for not fully complying with the requirements of that sub- section, and, in the case mentioned in clause (b) of the said proviso, the officer shall also forthwith notify to the informant, if any, in such manner as may be prescribed by the State Government, the fact that he will not investigate the case or cause it to be investigated.
The SC has viewed that an investigation should generally consist of :
1) Proceeding to the spot.
2) Ascertainment of facts and circumstances of the cases.
3) Discovery of arrest.
4) Collection of evidence:-
(a) examination of various persons.
(b) search of place and seizure of things.
5) Filing a charge-sheet under section 173 CrPC.
Power of police to investigate :-
Section 155, Code of Criminal Procedure, 1973
155. Information as to non- cognizable cases and investigation of such cases.
(1) When information is given to an officer in charge of a police station of the commission within the limits of such station of a non- cognizable offence, he shall enter or cause to be entered the substance of the information in a book to be kept by such officer in such form as the State Government may prescribe in this behalf, and refer the informant to the Magistrate.
(2) No police officer shall investigate a non- cognizable case without the order of a Magistrate having power to try such case or commit the case for trial.
(3) Any police officer receiving such order may exercise the same powers in respect of the investigation (except the power to arrest without warrant) as an officer in charge of a police station may exercise in a cognizable case.
(4) Where a case relates to two or more offences of which at least one is cognizable, the case shall be deemed to be a cognizable case, notwithstanding that the other offences are non- cognizable.
Section 156, Code of Criminal Procedure, 1973
156. Police officer's power to investigate cognizable case.
(1) Any officer in charge of a police station may, without the order of a Magistrate, investigate any cognizable case which a Court having jurisdiction over the local areawithin the limits of such station would have power to inquire into or try under the provisions of Chapter XIII.
(2) No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate.
(3) Any Magistrate empowered under section 190 may order such an investigation as above- mentioned.
Officers have power to require attendance of witnesses [Sec 160, CrPC)
Examination of witnesses by police [Sec 161, CrPC]
Has power to arrest, search and seizure.
The distinction between cognizable and non- cognizable demarcates the power of police in respect of criminal investigation. While the police officers have the power to investigate the cognizable offences, they are enjoined not to investigate non-cognizable offence without the order of competent Magistrate.
However, if the complaint discloses both cognizable and non-cognizable offences the police may investigate the case as they investigate into cognizable offences.
In Pravin Chandra Mody v. State of AP [1965 SC 1185]
The court held that while investigating a cognizance offence and presenting a charge- sheet for it, the police are not debarred from investigating any non-cognizable offence arising out of the same fact and including them in the charge-sheet.
In Satvinder Kaur v. State (Govt. of NCT of Delhi) [(1999) 8 SCC 728]
The SC held that the police officer of a station has power to investigate into a crime committed outside his local jurisdiction.
Magistrates are empowered under Section 190 CrPC, they may order an investigation the investigation is not proper.
Section 190, Code of Criminal Procedure, 1973
190. Cognizance of offences by Magistrates.
(1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under sub- section (2), may take cognizance of any offence-
(a) upon receiving a complaint of facts which constitute such offence;
(b) upon a police report of such facts;
(c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.
(2) The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under sub- section (1) of such offences as are within his competence to inquire into or try.
In Dilawar Singh v. State of Delhi [(2007) 12 SCC 641]
SC clarified that even if the fir has been registered and police is done with the investigation, if the aggrieved person feels it’s not proper, such a person can approach the Magistrate under section 156(3). Hence the magistrate can order a proper investigation and can even take suitable steps and pass such orders for proper investigation.
What are the remedies available if the police officials refuse to register the complaint?
A police officer can refuse to file a complaint if he believes the case to be a petty issue. FIRs are only lodged for cognizable offences and for non-cognizable offences a complaint is made to a magistrate who in return directs the police to take an action.
If the police refuses to file a complaint the following are the remedies for it :-
Section 154(3), Code of Criminal Procedure, 1973
Any person aggrieved by a refusal on the part of an officer in charge of a police station to record the information referred to in subsection (1) may send the substance of such information, in writing and by post, to the Superintendent of Police concerned 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 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.
Section 156(3) read with section 190, Code of Criminal Procedure,1973
If even after submitting a complaint to Senior Police officials no FIR is lodged then the informant is legally entitled to file a complaint to the Judicial Magistrate/ Metropolitan Magistrate u/s 156(3) read with Section 190 of the criminal procedure thereby requesting the FIR to be registered by the police and commencing investigation into the matter.
Writ Petition [Section 482]
Any person to whom any officer in charge of the police station refuses to file FIR for any cognizable offence within his territorial jurisdiction can file a writ petition in the High Court for the -
Issuance of writ of mandamus against the defaulting police officer to give the reason of why he has not registered the FIR, and why he should not be suspended from his position of police service for interfering in the administration of justice and disturbing the accused person and to ask for damages/compensation, for the frustration and for the deprivation of life and liberty under article 21 of the Indian constitution.
Human Rights Commission
If police refuses to register FIR of any cognizable offence then that person can file a case in :-
State Human Right Commission or National Human Right Commission
In Mohd. Yousuf v. Afaq Jahan [(2006) 12 SCC 641]
It was directed that “it is the duty of the officer-in-charge of the police station to register the FIR regarding the cognizable offence disclosed by the complaint”
In Sakiri Vasu v. State of UP [(2008) 2 SCC 409]
If a person has a grievance that his FIR has not been registered by the police station, his first remedy is to approach Superintendent of Police or the officer referred to in section 36 crpc. Despite approaching the SI if his grievance still persists then he can approach magistrate under section 156(3).
Moreover, he has further remedies of filing a writ petition or a petition under section 482.
Under section 166A(c), 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 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.