6 Reporting of Crime

Mr. Neeraj Tiwari

Introduction:

Every criminal behaviour may not reach the formal system. The victims of crime may be too poor and too ignorant to report the matter to the formal authorities or they might be too far away, unconnected with the modes of communications. Such criminal incidents remain unreported and constitute the ‘dark figures’ of crime. However, quite a few crimes, particularly in urban areas that have better awareness and resources, do get reported and come to the formal system, constituting the crime record statistics. How the crime incidents get reported and what are the rules relating to reporting of crime are the focus of the present module.

Importance of reporting of crime:

Reporting of crime/criminal incident is the first step in the criminal adjudication process. By reporting of crime/criminal incident the victim/informant brings the crime into the notice of the formal system which gives opportunity to investigating agencies to detect the crime, apprehend the criminal and bring him to the process of adjudication for final determination of guilt. Early reporting of crime reduces the chances of tampering with evidence and prevents further commission of crimes.

In the case of Lalita Kumari v. Govt. of U.P.1 the Supreme Court has mentioned following benefits of reporting of crimes:

a) It is the first step to ‘access to justice’ for a victim.

b) It upholds the ‘Rule of Law’ inasmuch as the ordinary person brings forth the commission of a cognizable crime in the knowledge of the State.

c) It also facilitates swift investigation and sometimes even prevention of any further crime. In both cases, it only effectuates the regime of law.

d) It leads to less manipulation in criminal cases and lessens incidents of ‘ante-dates’ FIR or deliberately delayed FIR.

3. Methods to report crimes:

Under the Indian Criminal Procedure an aggrieved person may invoke the criminal justice process either by lodging an F.I.R. or by filing a complaint. These are:

a) First, by recording of information disclosing commission of cognizable offence with the police officer under section 154 of the Code. Where the information discloses commission of a non cognizable offence, the police must proceed as per section 155 of the Code.

b) Second, by filing complaint before a Magistrate under section 190(1)(a) read with section 200.

The former would lead to investigation by the police which may culminate in a police report under section 173 of the Code. In the latter case, the Magistrate may either order investigation by the police under section 156(3) of the Code or himself hold an inquiry under Section 202 before taking cognizance of the offence. Though the police officer in-charge of a police station [u/s 157(1)] and the Magistrate concerned [u/s 190(1)(c)] have also been conferred with the power to take suo-moto investigation/cognizance of any cognizable offence.

3.1 First Information Report (F.I.R.):

One of the methods of crime reporting is by registering First Information Report (FIR). This term is neither used nor defined in the Code. In fact, the information given under  sub-section  (1)  of  section  154  of  the  Code  is  commonly  known  as  First Information Report (FIR). It is the ‘information’ that is received first in point of time. The Supreme Court in the case of Lalita Kumari v. State of U.P.2 highlighted the object sought to be achieved by registering the FIR in the following words:

“It has twin object- one, that the criminal process is set into motion and is well documented from the very start; and second, that the earliest information received in relation to the commission of a cognizable offence is recorded so that there cannot be any embellishment etc., later.”

3.1.1 Procedure and elemental requirement for registration of F.I.R.

Section 154 (1) of the Code contains four mandates to be followed by the officer-in-charge of a police station. These are

a) every information relating to commission of a cognizable offence, if given orally shall be reduced to writing;

b) it shall be read over to the informant;

c) every such information whether given in writing or reduced to writing shall be signed by the informant; and

d) the substance of such information shall be entered in the station house diary.

Section 154 (2) entitles the informant to receive a copy of the information, as recorded under sub-section (1), free of cost.

The purpose of section 154 will be defeated if the police officer in charge of a police station refuses to record the information. Therefore, section 154 (3) provides for remedy against such refusal by an officer in charge of a police station to record the information. The person aggrieved thereby may send the substance of such information in writing and by post to the Superintendent of Police concerned who has an option either to investigate the case himself or direct the investigation to be made by a police officer subordinate to him, in the manner provided by the Code, if he is satisfied that the information discloses the commission of a cognizable offence. The police officer to whom investigation is entrusted by the Superintendent of Police has all the powers of an officer in charge of the police station in relation to that offence.

Each FIR has a unique annual number given to it which is maintained in FIR book on an annual basis. This makes it possible to keep a strict control and track over the registration of FIRs by the supervisory police officers and by the courts, wherever necessary. Copy of each FIR is sent to the superior officers and to the concerned Judicial Magistrate. In Madhu Bala v. Suresh Kumar3 the Supreme Court has pointed out following procedure relating to F.I.R.

“First, Registration of FIR is to be done in a book called ‘FIR book’ or ‘FIR Register’, and secondly, the gist of the FIR or the substance of the FIR may also be mentioned simultaneously in the General Diary as mandated in the respective Police Act or Rules, as the case may be, under the relevant State provisions.”

Similarly in the case of S.P., CBI v. Tapan Kumar Singh4, the Supreme Court has held that an entry in General Diary (GD) may be treated as First Information where it discloses the commission of a cognizable offence.

3.1.2 Whether information need be ‘reasonable’?

The issue whether the information under section 154 need to be ‘reasonable’ or ‘credible’ has brought attention of the Supreme Court time and again. In Bhajan Lal v. State of Haryana5 the Supreme Court has discussed this issue in detail and summed up n the following words:

“The non qualification of the word “information” in Section 154(1) of the Code is for the reason that the police officer should not refuse to record any information relating to the commission of a cognizable offence on the ground that he is not satisfied with the reasonableness or credibility of the information. In other words, reasonableness or credibility of the said information is not a condition precedent for the registration of a case.”

In Ramesh Kumari v. State (NCT of Delhi)6 the Supreme Court held that an officer in charge of a police station is statutorily obliged to record an information disclosing commission of a cognizable offence. He cannot refuse to register the FIR on the ground that the information is not relevant or credible.

Again in Parkash Singh Badal v. State of Punjab7 the Supreme Court further fortified its stand in the following words:

“At the stage of registration of a crime or a case on the basis of the information disclosing a cognizable offence in compliance with the mandate of Section 154(1) of the Code, the police officer concerned cannot embark upon an inquiry as to whether the information laid by the informant is reliable and genuine or otherwise and refuse to register a case on the ground that the information is not reliable or credible.”

Therefore, an overall reading of the Code along-with the judgments discussed above makes  it  clear  that  the  condition  which  is  sine  qua  non  for  recording  a  First Information  Report  is  that  there  must  be  information  and  that  information  must disclose a cognizable offence.

3.1.3 What is cognizable offence?

The Code of Criminal Procedure has not prescribed any criterion for determining nature of any offence as to cognizable or non-cognizable. Section 2(c) of the Code which  defines  ‘cognizable’  offence  simply  states  that  an  offence  for  which,  and ‘cognizable case’ means a case in which, a police officer may, in accordance with the First Schedule or under and other law for the time being in force, arrest without warrant.

First Schedule of the Code refers to all the offences under the Indian Penal Code and puts them into cognizable and non-cognizable offences. As a broad proposition it can be stated that offences which are serious in nature and are punishable with not less than three years of imprisonment are considered as ‘cognizable’ offence. In case of a cognizable offence, a police officer can arrest without warrant and can investigate into such a case without any direction or order from a Magistrate.

3.1.4 Telephonic information:

Section 154 of the Code requires the officer in charge of a police station to reduce to writing every information relating to the commission of a cognizable offence, even if given orally to such officer. The issue whether telephonic information if reduced to writing, can be treated as F.I.R. has been answered by the Supreme Court in the following cases:

In Ramsinh Bavaji Jadeja v. State of Gujarat8 the Court has held that “If the telephonic message is cryptic in nature and the officer in charge proceeds to the place of occurrence on the basis of that information to find out the details of the nature of the offence itself, then it cannot be said that the information, which had been received by him on telephone, shall be deemed to be First Information Report. The object and purpose of giving such telephonic message is not to lodge the First Information Report, but to request the officer in charge of the police station to reach the place of occurrence.”

“On the other hand, if the information given on telephone is not cryptic and on the basis of that information, the officer in charge, is prima facie satisfied about the commission of a cognizable offence and he proceeds from the police station, after recording such information, to investigate such offence then that piece of information will constitute F.I.R.”

Similar view has been shared by another Bench of the Supreme Court in State of A.P. v. V.V. Panduranga Rao.9 Similarly in case of Tapinder Singh v. State of Punjab10 the Supreme Court ruled that where an anonymous telephonic message neither discloses names of the accused nor the commission of a cognizable offence, it cannot be treated as FIR. The mere fact that this information was the first in point of time does not by itself clothe it with the character of First Information Report.

In this regard a comparison of the factual matrix of Tapinder Singh and Ramsinh Bavaji Jadeja are worth noting. In Tapinder Singh the information received over telephone was vague in nature and only revealed ‘firing at taxi stand’ without any specific input therefore the Court was justified in treating such information as cryptic in nature. But in Ramsinh Bavaji Jadeja the information given over telephone could have been considered to satisfy the requirements of section 154 of the Code because of the fact that it was given by the Head Constable giving duty at the hospital where the deceased was brought and secondly he also narrated the facts as to scene of crime and commission of the cognizable offence.

3.1.5 Second F.I.R.

In a situation where more information than one are given to a police officer in respect of the same incident involving one or more than one cognizable offences, whether the police officer should register both the information separately or he may record any one of the information as FIR. The Supreme Court has evolved the ‘test of sameness’ and ‘consequence test’ to decide the validity of the second FIR.

One of the earliest cases where the Indian Supreme Court discussed the permissibility of a second FIR was Ram Lal Narang v. State (Delhi Administration).11 The Supreme Court laid down the ‘test of sameness’ to decide this issue. It was held that the two FIR’s denoted separate conspiracies and separate incidents, wherein the first FIR reveals a smaller conspiracy, the second FIR exposed a larger conspiracy enlarging the ramifications of offences and scope of the FIR. In such a situation the larger conspiracy cannot be said to be part of the FIR registered first therefore, the second FIR is permissible.

In T.T. Antony v. State of Kerala12 the Supreme Court relying on the ratio of Ram Lal Narang quashed the second FIR. The Court found that the facts of both the FIR’s were similar, against similar individuals and for similar offences; therefore they could be stated to be in the course of the same transaction. The Court opined that “Only the earliest or the first information in regard to the commission of a cognizable offence satisfies the requirements of Section 154 of the Code. Thus there can be no second F.I.R. and consequently there can be no fresh investigation on receipt of every subsequent information in respect of the same cognizable offence.”

“All other information made orally or in writing after the commencement of the investigation in the cognizable offence disclosed from the facts mentioned in the FIR and entered in the station house diary by the police officer or such other cognizable offences as may come to his notice during the investigation, will be statements falling under Section 162 of Code of Criminal Procedure.”

Similarly in Chirra Shivraj v. State of Andhra Pradesh13 the Court has stated that “A second F.I.R. of the same incident/offence is not permissible. Any information after wards received by police of the same incidence always is to be in furtherance of first information.”

In Anju Chaudhary v. State of U.P.14 the Court has applied the ‘sameness test’ to verify the validity of the second FIR and stated that “There cannot be two FIRs registered for the same offence. However, where the incident is separate; offences are similar or different, or even where the subsequent crime is of such magnitude that it does not fall within the ambit and scope of the FIR recorded first, then a second FIR could be registered.”

However, in Amitbhai Anilchandra Shah v. CBI15 the Supreme Court applied the second test to determine whether a second FIR was permissible or not. Relying on the ‘test of consequence’ the Court has stated that “If the offence forming part of the second FIR arises as a consequence of the offence alleged in the first FIR then offences covered by both the FIRs are the same and, accordingly, the second FIR will be impermissible in law. In other words, the offences covered in both the FIRs shall have to be treated as part of the first FIR.”

“There cannot be second FIR in respect of the same offence/event because whenever any further information is received by the investigating agency, it is always in furtherance of the first FIR. Filing of the second FIR and fresh charge sheet is violative of fundamental rights under Article 14, 20 and 21 of the Constitution.”

3.1.6 Implications of delay in registering FIR:

Information under section 154 must be given at the earliest possible opportunity after the  commission of the offence.  Prompt  lodging of FIR presumes  fairness in the administration  of   criminal   justice.   Delay   in   lodging   the  FIR   often   results    in embellishment, which is a creature of an afterthought and much deliberation.But delay per se is not a ground to disbelieve the prosecution story.Recent trends suggest that the court is not in favour of giving any weight to the factors like delay in lodging FIR in sexual offences. In case of State of Punjab v. Ramdev Singh16  the   Supreme   Court  appealed  the   courts  to   display   a   greater   sense   of responsibility  and  ‘to  be  more  sensitive’  in  handling  cases  of  sexual  assault  on women, particularly of tender age and children.

3.1.7 Mandatory Registration of F.I.R.

The question whether it is obligatory for the police to register FIR on information given by an informant or he has discretion of conducting some kind of preliminary enquiry before registering FIR, has been answered in the affirmative by the five Judge Bench in Lalita Kumari v. Govt. of U.P.17 It was noticed by the Supreme Court that there were divergent judicial opinions on this issue. The Bench has set the issue at rest and given following directions:

(a) Registration of FIR is mandatory under Section 154 of the Code, if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation.

(b) 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 cognizable offence is disclosed or not.

(c) If the inquiry discloses the commission of a cognizable offence, the FIR must be registered.

(d) Action must be taken against erring officers who do not register the FIR if information received by him discloses a cognizable offence.

(e) The scope of preliminary inquiry is not to verify the veracity or otherwise of the information received but only to ascertain whether the information reveals any cognizable offence.

Therefore, it can be said that a police officer is duty bound to register a case on the basis of information pertaining to a cognizable offence.

3.1.8 Exceptions to Mandatory Registration of F.I.R.

The Supreme Court in Lalita Kumari case has mentioned an illustrative list of cases where the police officer may conduct a kind of preliminary inquiry before registering FIR. Such category of cases are:

(a) Matrimonial disputes/family disputes

(b) Commercial offences

(c) Medical negligence cases

(d) Corruption cases

(e) Cases where there is abnormal delay in reporting the matter without satisfactorily explaining the reasons for delay.

The Court further directed that the preliminary inquiry shall get over within seven days time. Any delay and the causes of such delay must be recorded in the General Diary entry. All information relating to cognizable offences, whether resulting in registration of FIR or leading to an inquiry, must be mandatorily and meticulously reflected in the Station Diary and the decision to conduct a preliminary inquiry must also be recorded.

3.1.9 Special Reporting Procedure in respect of specific class of offences:

The Criminal Law Amendment Act, 2013 has brought some relevant changes in section 154 with regard to registration of FIR in relation to crimes against women. The first proviso to section 154 (1) provides that where any information is given by a woman against whom an offence of acid attack, sexual harassment or rape is alleged to have been committed or attempted, then such information shall be recorded by a woman police officer or any other woman officer.

In cases, where the said woman is temporarily or permanently mentally or physically disabled, the second proviso obligates the police officer to record such information at her residence or at a convenient place of her choice. The proviso requires presence of interpreter or a special educator at the time of recording. Clause (b) of the second proviso mandates videography of the recording of such information. Lastly, clause (c) of the second proviso requires the police officer to get the statement of the person recorded by a Judicial Magistrate under Clause (a) of Sub-section (5A) of Section 164 as soon as possible.

3.1.10 Special Rules of mandatory reporting for select offences:

The number of crimes against women and children has always been shown less than their actual number in the Crime Record statistics. The reason for this is twofold. First, less number of reporting of these crimes and second, reluctance on the part of the authorities to record these crimes. To overcome these situations, following provisions are introduced in respective enactments:

Section 166A(c) confers a positive obligation on a police officer and lays down that if a police officer fails to record any information given to him under Section 154(1) of the Code in relation to offences of acid attack, sexual harassment or rape, he shall be punished with rigorous imprisonment for a term which shall not be less than six months but may extend to two years and shall also be liable to fine.

The intention of the legislature in putting forth section 166A(c) by the Criminal Law (Amendment) Act, 2013 is to tighten the already existing provisions to provide enhanced safeguards to women.

Section 20 of the Protection of Children against Sexual Offences Act, 2012 (POCSO) express an obligation upon media personnel, staffs of hotels, lodges, hospitals, clubs,studios or photographic facilities to report a case to the Special Juvenile Police Unit (SJPU)/local police.

Non-reporting of commission of an offence falling under sections 19(1) or 20 will invite criminal sanction of imprisonment up to one year and fine under section 21 of the Act. Such criminal sanction can also be invoked against the authorities who fail to record such offence under section 19(2).

3.2 Implications of registration of F.I.R.

Registration of FIR brings the crime within the criminal justice system to which judicial authorities have power to be appraised of by the police officer. By virtue of section  157  of  the  Code,  immediately  after  registration  of  FIR  the  Investigating officer is required to send forthwith a copy of the FIR to the Magistrate empowered to take cognizance of the offence. As laid down in H.N. Rishbud v. State of Delhi19, the recording of information triggers investigation by a police officer under section 156(1) without the order of the Magistrate which consists of following steps:

(1) Proceeding to the spot,

(2) Ascertainment of the facts and circumstances of the case,

(3) Discovery and arrest of the suspected offender,

(4) Collection of evidence relating to the commission of the offence which may consist of 

(a) the examination of various persons (including the accused) and the reduction of their statements into writing, if the officer thinks fit,

(b) the search of places of seizure of things considered necessary for the investigation and to be produced at the trial, and

(5) Formation of the opinion as to whether on the material collected there is a case to place the accused before a Magistrate for trial and if so taking the necessary steps for the same by the filing of a charge-sheet under section 173.

3.2.1 Consequences of Giving Information:

Registration of FIR under section 154 of the Code enables the police machinery to investigate the crime. Section 157 of the Code lays down procedure for such investigation and requires that as soon as the FIR is registered it must reach to the Magistrate without undue delay. The object of such provision is to make judiciary apprise of the registration of the FIR. It also prevents any kind of manipulation or fabrication in the process of investigation. A bare reading of section 157 suggests that FIR is not an indispensable requisite for the investigation of a crime. The police officer may also proceed to investigate a crime if he has reason to suspect the commission of an offence. At the same time, police is not liable to launch an investigation in every FIR which is mandatorily registered on receiving information relating to commission of a cognizable offence. But if it appears to the officer in charge of a police station that there is no sufficient ground for conducting investigation, he can foreclose the investigation. It is evident from the language of section 157(1) of the Code which states that a police officer can start investigation when he has a ‘reason to suspect the commission of an offence’.

3.2.2 Implications where police declines to investigate:

Where the officer in charge of a police station has decided not to proceed with the investigation, he is required to state reasons in his report for doing so. The officer in charge of a police station is duty bound to inform the informant about his decision. Under section 159 the Magistrate is empowered to take necessary steps after receiving the report of a police officer under section 157. He may;

• direct an investigation, or
• if he thinks fit, may depute any Magistrate subordinate to him to hold a preliminary inquiry into, or
• otherwise to dispose of the case.

In the case of Arjun Marik v. State of Bihar20 the Supreme Court has highlighted the purpose and object of sending FIR promptly to Magistrate. The Court observed that

“A combined reading of Sections 157 and 159 of the Code spells out the purpose and object of such requirement. It has the dual purpose, (i) to avoid the possibility of improvement in the prosecution story and

introduction of any distorted version by deliberations and consultation and (ii) to enable the Magistrate concerned to have a watch on the progress of the investigation.”

Procedure for reporting non-cognizable cases:

Non-cognizable offences are more in nature of private criminal wrongs. Therefore, investigation into such cases is not the responsibility of the police unless otherwise ordered by the Magistrate.21 Section 155 requires the police officer to enter the substance of the information relating to commission of a non-cognizable offence in a book kept for this purpose and refer the informant to the Magistrate. Where a Magistrate orders investigation the police officer 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. 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.

Reporting of crime through Complaint mode:

The second out of the two courses for invoking criminal justice process is by filing a complaint before a Magistrate. Complaint can be filed by any private person or by Government officials as required under various legislations like Minimum Wages Act, Contract Labour Regulation & Abolition Act, Child Labour Laws and Environment Laws etc. However, in some legislation the complaint mode is the only and mandatory course of reporting a crime. As in case of FIR the information must disclose commission of a cognizable offence, in case of complaint it is not so. Any individual may file a complaint before a Magistrate irrespective of whether the information is relating to cognizable or non-cognizable offence.22

5.1 Elemental requirement of filing a complaint

The Code of Criminal Procedure confers wide powers on Magistrate to take cognizance of an offence. Under section 190 of the Code the Magistrate may take cognizance in following cases:

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.

The power of the Magistrate to take cognizance of an offence under section 190 is independent from the duty of a police officer to record information under section 154. Therefore, any aggrieved person can directly approach the Illaka Magistrate and file the complaint under section 200 read with section 190(1)(a).

5.2 Courses open to a Magistrate after receiving complaint:

Upon receiving complaint, the Magistrate may take any of the following two courses. He may

i) either direct police to investigate as per section 156(3), or

ii) take cognizance of the offence under section 190(1)(a).

5.3 ‘Cognizance’ when taken?

‘Cognizance’ in terms of the Code means ‘to take notice judicially’. Therefore, it is the point when the Magistrate first takes judicial notice of an offence. Where a Magistrate orders the investigation by the police based on a complaint filed before him and proceeds with the case on the basis of the report submitted by the police, a question arises whether the Magistrate had taken cognizance of the offence on the complaint before sending it for investigation or whether the case was sent to the police without taking ‘cognizance’ and cognizance was taken only on the report submitted by the police. Whether the Magistrate has taken ‘cognizance’ of the offence in a complaint case under section 190 depends upon the steps taken afterwards. Where he is satisfied with the substance of the complaint and takes steps under section 200/202/204, he must be held to have taken the cognizance of the offence mentioned in the complaint. On the other hand, if the Magistrate orders an investigation under section 156(3), he cannot be said to have taken cognizance of the offence. It is a pre-cognizance step.23

What the Magistrate takes cognizance of is the ‘offence’ and not the offender. Once the Magistrate takes cognizance of an offence, he acquires jurisdiction to proceed even against those offenders whose names were not known to the complainant at the time of filing the complaint or those who had not been named by the police in their report under section 173.

5.3.1 Cognizance upon complaint:

In Tula Ram v. Kishore Singh24 the Supreme Court stated that where the Magistrate takes cognizance of the offence under section 190(1)(a), he may have following options:

(i) He shall examine upon oath the complainant and the witnesses present and record the evidence of the complainant or his witnesses as per section 200.

If he is satisfied that there are sufficient grounds for proceeding, he can straightaway issue process to the accused as per section 204

(iii) Conversely, if he finds from the evidence led by the complainant or his witnesses that there is no sufficient ground for proceeding, he shall dismiss the complaint under section 203.

(iv) The Magistrate can postpone the issue of process and direct an enquiry by himself or by any other person or an investigation by the police under section 202 to ascertain whether or not there is prima facie evidence to justify the issue of process.

5.3.2 Procedure when cognizance is taken on Complaint:

If the Magistrate is satisfied that there are sufficient grounds for proceeding, he shall take following steps:

(a) Must examine on oath the complainant and witnesses present;

(b) Substance of such examination shall be reduced to writing;

(c) It shall be signed by the complainant and the witnesses;

(d) It shall also be signed by the Magistrate.

The object of such examination of the complainant and witnesses is to ascertain as to whether any prima facie case is made out in the complaint and there are sufficient grounds for proceeding further. If the Magistrate taking cognizance of an offence considers that there is sufficient ground for proceeding, he shall issue process to the accused under section 204. Where such examination of the complainant and witnesses and/or inquiry or investigation under section 202 does not disclose sufficient ground to proceed further, the Magistrate shall dismiss the complaint and briefly record his reasons for so doing as per section 203.

5.3.3 Exceptions to the requirement of examination under section 200:

There are some exceptions to the general rule of examination of complainant under section 200. The foremost exception is provided in section 200 itself. Proviso to section   200  relaxes   the  rule   of   examination   of  complainant   in   following   two situations:

(a) Where a complaint is made by a court or a public servant in the discharge of his official duties.

(b) Where the Magistrate makes over the case for inquiry/trial to another Magistrate under section 192. But if the Magistrate making over the case has already examined the complainant and witnesses, the latter Magistrate need not re-examine them.Where the Magistrate takes cognizance on the basis of the police report submitted after investigation under section 156(3) he is not required to examine the complainant.

5.4 Conversion of a complaint case to a FIR case:

Instead of taking cognizance under section 190(1)(a), the Magistrate may simply order investigation by the police under section 156(3). Where he decides to do so, he is required to record reasons for his decision. Generally, where a complaint discloses a cognizable offence the Magistrate sends the complaint to the police under section 156(3) for thorough investigation. The police will then investigate and submit a report under section 173(2) of the Code. On receiving the police report the Magistrate may take any of the following steps:

(i) He may take cognizance of the offence under section 190(1)(b) and issue process. If he decides to take cognizance, it would be deemed to have been taken on the police report under section 190(1)(b) and not on the original complaint.

(ii) Where after completion of the investigation, the police sends an adverse report under section 173(2), the Magistrate may take any of the following steps:

(a) If he agrees with the Police report that there is no sufficient ground for proceeding further, he may drop the proceeding and dismiss the complaint.

(b) He may not agree with the police report and may take cognizance of the offence on the basis of the original complaint, under section 190(1)(a) of the Code and proceed to examine the complainant under section 200.

(c) He may reject the police report and direct an enquiry under section 202 of the Code and after such enquiry take action under section 203.

Therefore, the power of the Magistrate to take cognizance of the offence under section 190(1)(b) is independent and regardless the view expressed by the police in their report whether an offence has been made out or not.

This view was reaffirmed by the Supreme Court in the case of Vasanti Dubey v. State of M.P.25 where the Court held that even if no case was made out in the police report, the Magistrate could ignore the same and could take cognizance on applying his mind independently to the case. In doing so, he has two options;

(i) reject the police report and direct an enquiry under section 202 of the Code and after such enquiry take action under section 203;

(ii) he can take cognizance of the offence on the basis of the original complaint, under section 190(1)(a) of the Code at once if he disagrees with the police report.

6. Summary:

To sum up the discussion, it can be said that the Code stipulates two channels for invoking criminal justice machinery, one by registration of FIR to the police and another by filing complaint before the Magistrate. It was also noticed that both these mechanisms are separate and can be used independently by the aggrieved person. 

As far as FIR is concerned the Supreme Court in Lalita Kumari case rejected the line of authorities that favoured giving discretion to the Police to conduct a preliminary enquiry before the registration of an FIR. Therefore, now in all cases where the information discloses commission of cognizable offence the police officer is bound to register the FIR with some exceptions where the police is allowed to conduct preliminary inquiry.

It is seen that the registration of FIR and investigation are executive functions, but at the same time the Code, to ensure that such powers are not exercised arbitrarily, incorporated scrutiny by court at various stages. In cases where the police officer declines to investigate, the Magistrate may take a different stand. Similarly the Magistrate is not bound to accept the closure report filed by the police in any given case. The aggrieved person may also register his grievance to the Magistrate by invoking section 200. This power of Magistrate is independent of and separate from the duty of police to register a case. Lastly, the special reporting procedure and the 25(2012) 2 SCC 731 insertion of section 166A(c) in the IPC will surely bring more crimes to the national crime record data.