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CONSEQUENTIAL REMEDIES FOR POLICE REFUSING TO FILE FIR

Introduction

FIR which stands for first information report​, FIR is a written document prepared by police when there is commission of any of the cognizable offence​, and anybody who is victim of this offence or anyone on the behalf of that victim person and lodge the complaint, it can be made to the police either orally or in writing, FIR is one of the most important parts of the criminal law, FIR is considered an important document because it set the process of criminal justice system in motion, it is considered as a base to start any investigation related to any case, this document becomes as the first impression of the prosecution case.
 Here we are about what to do if police refuse to file FIR, the police most of the time refused to register an FIR, it could not be very surprised because it did not take place for the first time and neither it will last. It will take many years for the police to be responsible and responsive.

Cognizable offence

Cognizable offences are defined in subsection (c) of section (2) of Civil Procedure Code 1908, These offences are those where a police officer can arrest a person without warrant​, as per the first schedule of the Criminal Procedure Code, 1973 and after arrest accused will be produced before the magistrate and magistrate will examine the matter and he may require the police officer to investigate the matter, cognizable offence are both bailable and non-bailable. These offences are usually serious in nature for example- murder, rape, dowry death, kidnapping, theft, criminal breach of trust, unnatural offences, rioting armed with deadly weapon, waging war against the government of India. 
Code of criminal procedure code, 1973
Section154.​ 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.[1]
Sub-section(1) of section 156 : Police officer’s power to investigate the cognizable case. 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 area within the limits of such station would have the power to inquire into or try under the provisions of Chapter XIII.
sub-section (c) of Section166(A):  Whoever, being a public servant 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, shall be punished 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.
According to the Hindustan times[2] report it is stated that- 
  • If your local police station refuses to file a First Information Report (FIR) in a complaint, it could soon be considered a crime​ ​.
  • A parliamentary panel has ‘strongly recommended’ to the government to consider making any refusal to file a First Information Report (FIR) by police personnel a criminal offence.
  • The panel also doubted the claim of the government that around 78% (approximately 12,000) police stations in the country are registering 100% FIRs. The panel said it ‘would like to know the basis used to arrive’ at this claim.
  • The parliamentary standing committee on home affairs, headed by former Union home minister P. Chidambaram and with Member of parliament from the ruling NDA(national defence academy) dispensation and opposition parties as members, in its recently tabled report said, “The committee strongly recommends that the government should consider making refusal of registration of FIR by police personnel a criminal offence and action be taken against such police personnel.”
  • Refusal to lodge an FIR on jurisdictional ground amounts to 1 year of Imprisonment for the Police officials. A Petition may be registered and submitted to the Chief Justice of the concerned High Court / Chief Justice of India, Supreme Court, asking them to take Suo Moto Cognizance of the alleged contempt of the Court. Further, a copy of the said letter may be sent to the concerned Police Officer. The status of such letter petition can be inquired through an application under the Right to Information (RTI).

Remedies when police refuse to file “FIR”

As we know nowadays refusal to file FIR by police officers are increasing rapidly in the case of cognizable offence, police officer can only refuse to file FIR when he thinks that it is a petty case or when he thinks it is a non-cognizable offence, but he can not do so in case of cognizable offence, here are some of the remedies which one can use in case when police refuses to file “FIR”-
  • By complaining to the superintendent of police.
  • By complaining to a judicial magistrate.
  • By filing the writ petition.
  • By complaining about state and national human right commission.
1. Superintendent of police
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 write a complaint of his case and may send it by post to any-
  • The senior officer of the police. 
  • Commissioner of police.
  • Superintendent of police.
Also, the copy of the complaint may also be sent to the chief justice of High Court of that state, after analyzing that complaint superintendent of police or
commissioner of police if thinks that it is a cognizable offence they may-
  • Moreover investigation by themselves. 
  • Give direction to the subordinates to register the FIR and initiate the investigation in the matter.
And also the informant can complain to these officer regarding disciplinary proceeding regarding “misconduct”.
2. Magistrate
Any person to whom any officer in charge of the police station refuses to file FIR for any cognizable offence within his territorial jurisdiction may send a written complaint in the form of the letter to-
  • Concerned judicial metropolitan magistrate.
  • After analysing the letter magistrate will decide whether to take cognizance or not.
  • An informant may also send an application to the judicial magistrate or metropolitan magistrate from sub-section (3) of section 156 read with section 190[3] of the criminal procedure code, 1973 telling that police to register an FIR, investigate the case, and file the report before him.                                                                                                                    
3. Writ Petition
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 Hon’ble 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 ask for damages/compensation, for the frustration and for the deprivation of life and liberty under article 21 of the Indian constitution.
4. Human right commission
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 case in
  • State human right commission of that state or
  • National human right commission.
in written form that particular police officer is not doing his duty of enforcing the law which is made to be enforce for public welfare, and that they are so negligent, biased and wholly corrupt, that they even don’t look the victim’s problem and that must create a mental trauma to the victim and he may frustrate too.

Conclusion

  • As we know filing FIR is one of the beneficiaries that we have got from the criminal system of our India.
  • No one has the right to violate it or refuse it.
  • FIR in the cognizable cases should be done properly and not like a burden and this should be known by all the police officers in our India.
  • Sometimes they misuse their position by refusing to file the FIR, because they think all those weak people can not file a complaint against them because they are more powerful and all are afraid of them.
  • They in the most cases refuse to file FIR when it is a case of any helpless women because now again they think what anybody can do, I am a police officer.
  • And also they misuse their position for poor people. But in the recent era, things have been changed now refusing to file the FIR is an offence follow up the above guidelines and do not be silent on the crime, Go ahead.

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[1] https://indiankanoon.org/doc/1980578/

[2] https://www.hindustantimes.com/india-news/police-refusing-to-file-fir-it-might-soon-be-considered-a-crim e/story-iHXTDSCNTuPGX4mTeqZsoO.html

[3] https://indiankanoon.org/doc/686759/

 

ABOUT THE AUTHOR:

 

Sonal Jaiswal is V year law student at Jayoti Vidyapeeth Women’s University, Jaipur.

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