Registration & Quashing of FIR

Introduction

Legally speaking offences are classified into two broad categories- Cognizable and Non-Cognizable offences. Section 2(n) of the Code of Criminal Procedure (“CrPC”) defines “Offence” to means any act or omission made punishable by any law for the time being in force and includes any act in respect of which a complaint may be made under section 20 of the Cattle-trespass Act, 1871. The process after commission of an offence is registration of complaint before concerned police station who based on nature of offence register a report accordingly and then proceed to investigate, submits the report before appropriate court and then court conducts inquiry and conducts trial based on which the accused is either acquitted or convicted. The article covers three important issues related to- registration and non-registration of FIR and its Quashing.

A. Non-Cognizable Offence

There are many times common man approach lawyer on issues concerning them in which police does not register their First Information Report. Therefore it is important to understand the category of offences as per Criminal Procedure Code (CrPC) in which Police can neither register the FIR nor can investigate or effect arrest without the express permission or directions from the court, which are known as Non-cognizable offences. These mostly include minor offences such as abusing each other, minor scuffles without injuries, intimidation etc. As per CrPC, Police Station is required to record an abstract of such complaint in the General Diary, which is called N.C., and advise the complainant to file the complaint in the concerned court, as police is not empowered to initiate action in such matters without the directions of the court. A copy of the entry made in the General Diary may be provided to the complainant free of cost.

B. Cognizable Offences

The First Information Report is the one, which is entered, in the prescribed book by an officer-in-charge of a police station upon receiving information relating to the commission of a cognizable offence. Information given under sub-section section 154(1) of the Code of Criminal Procedure Code is commonly known as First Information Report (“FIR”) though this term is not used in the Criminal Procedure Code (“CrPC”). FIR is the informant’s version of story so make sure that police officer reads out the same to you. The persons providing such information relating to the commission of a cognizable offence to an officer-in-charge of a police station is not a complainant. He is only an informant and whereas the complainant is the one who files the complaint before any Magistrate which he is entitled to take cognizance of any offence. The complaint need not relate to the commission of a cognizable offence. It could be a cognizable or non-cognizable offence. The complainant is the one who files such complaint of facts constituting offences which may be cognizable or non-cognizable.

Once an FIR has been filed, the police are legally bound to start investigation. The process of investigation includes, but is not limited to, collecting evidence, questioning witnesses, inspecting the crime scene, forensic testing, recording statements and so on. Once the investigation has been concluded the police will record all their findings in a ‘Challan’ or Charge sheet.  If it is deemed that there is enough proof on the charge sheet the case goes to court. On the flipside, after their investigations if the police conclude that there is not enough evidence or proof that a crime has been committed they can close the case after justifying their reasons in court.  If the police decide to close the case, they are bound to inform the person who filed the FIR of their decision. This is first stage when the FIR filed can disclose no case made out and hence no further action required under due process of law.

Online FIR: Now you can also file online complaints. Your complaint shall be referred to the concerned Police Station, where you may be called for further clarification and/or to give statement.

Zero FIR: The main idea of a Zero FIR is to initiate the investigation or urge the police to take their initial action. Once you have lodged a Zero FIR, your complaint would be transferred to the appropriate police station of jurisdiction without any initial action or investigation. Crimes like murder, rape and accidents require immediate action from the concerned police authorities so that they take appropriate samples, eyewitnesses and other circumstantial details. Zero FIR allows the authorities to pen down the initial information irrespective of jurisdiction.

C. Important Things to Know as Informant of FIR

Each State has its own police force under the control of the government of the State except for the Union Territories where it is under the control of Central Government. Beat Constables are the police officers who patrol a specific area. For your information, even a traffic police officer has power to arrest you, if a crime is committed. According to the 1861, Police Act, Police officer is always on duty. The ingredients of FIR registration are as follows:

1. Information to be reduced in writing: Every information relating to the commission of a cognizable[1] 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;
2. Signature of the Informant: The person giving it, whether given in writing or reduced to writing as aforesaid, shall sign every such information 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.
3. Copy to the Informant: A copy of the information as recorded under Sub-Section (1) shall be given forthwith, free of cost, to the informant.
4. Copy of the FIR to accused: Accused cannot demand the copy of FIR from police who is investigating but can get certified copy of the same from Magistrate court.

D. If the informant is women:

If the information is given by the woman against whom an offence under:

Section 326A-Voluntarily causing grievous hurt by use of acid, etc: Whoever causes permanent or partial damage or deformity to, or bums or maims or disfigures or disables, any part or parts of the body of a person or causes grievous hurt by throwing acid on or by administering acid to that person, or by using any other means with the intention of causing or with the knowledge that he is likely to cause such injury or hurt, shall be punished with imprisonment of either description for a term which shall not be less than ten years but which may extend to imprisonment for life, and with fine; Provided that such fine shall be just and reasonable to meet the medical expenses of the treatment of the victim; Provided further that any fine imposed under this section shall be paid to the victim.

Section 326B: Voluntarily causing Grievous Hurt by use of Acid: Whoever throws or attempts to throw acid on any person or attempts to administer acid to any person, or attempts to use any other means, with the intention of causing permanent of partial damage or deformity of burns or maiming or disfigurement or disability or grievous hurt to that person, shall be punished with imprisonment of either description for a term which shall not be less than five years, but which may extent to seven years and also be liable to fine.

Explanation 1– For the purposes of section 326 A and this section, “acid” includes any substance which has acidic or corrosive character or burning nature, that is capable of causing bodily injury leading to scars or disfigurement or temporary or permanent disability.

Explanation 2– For the purposes of section 326 A and this section, permanent or partial damage or deformity shall not be required to be irreversible.’.

Section 354-Assault or criminal force to woman with intent to outrage her modesty: Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty, shall be punished with impris­onment of either description for a term which may extend to two years, or with fine, or with both.

Section 354A: Sexual harassment and punishment for sexual harassment:  A man committing any of the following acts-

• Physical contact and advances involving unwelcome and explicit sexual overtures; or
• A demand or request for sexual favours; or
• Showing pornography against the will of a woman; or
• Making sexually coloured remarks

shall be guilty of the offence of sexual harassment.

2. Any man who commits the offence specified in clause (i) or clause (ii) or clause (iii) of sub-section (1) shall be punished with rigorous imprisonment for a term, which may extend to three years, or with fine, or with both.

3. Any man who commits the offence specified in clause (iv) of sub-section (1) shall be punished with imprisonment of either description for a term, which may extend to one year, or with fine, or with both.

Section 354B of the Indian Penal Code: Assault or use of criminal force to woman with intent to disrobe: Any man who assaults or uses criminal force to any woman or abets such act with the intention of disrobing or compelling her to be naked, shall be punished with imprisonment of either description for a term which shall not be less than three years but which may extend to seven years, and shall also be liable to fine.

Section 354C-Voyeurism: Any man who watches, or captures the image of a woman engaging in a private act in circumstances where she would usually have the expectation of not being observed either by the perpetrator or by any other person at the behest of the perpetrator or disseminates such image shall be punished on first conviction with imprisonment of either description for a term which shall not be less than one year, but which may extend to three years, and shall also be liable to fine, and be punished on a second or subsequent conviction, with imprisonment of either description for a term which shall not be less than three years, but which may extend to seven years, and shall also be liable to fine.

Explanations

1. For the purpose of this section, “private act” includes an act of watching carried out in a place which, in the circumstances, would reasonably be expected to provide privacy and where the victim’s genitals, posterior or breasts are exposed or covered only in underwear; or the victim is using a lavatory; or the victim is doing a sexual act that is not of a kind ordinarily done in public.
2. Where the victim consents to the capture of the images or any act, but not to their dissemination to third persons and where such image or act is disseminated, such dissemination shall be considered an offence under this section.

Section 354D: Stalking: (1) Any man who—

1. follows a woman and contacts, or attempts to contact such woman to foster personal interaction repeatedly despite a clear indication of disinterest by such woman; or
2. monitors the use by a woman of the internet, email or any other form of electronic communication, commits the offence of stalking;

Provided that such conduct shall not amount to stalking if the man who pursued it proves that—

1. It was pursued for the purpose of preventing or detecting crime and the man accused of stalking had been entrusted with the responsibility of prevention and detection of crime by the State; or
2. It was pursued under any law or to comply with any condition or requirement imposed by any person under any law; or
3. In the particular circumstances such conduct was reasonable and justified.

(2) Whoever commits the offence of stalking shall be punished on first conviction with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine; and be punished on a second or subsequent conviction, with imprisonment of either description for a term which may extend to five years, and shall also be liable to fine.

Punishment for rape :Section-376.

1. Whoever, except in the cases provided for in sub-section (2), commits rape, shall be punished with rigorous imprisonment of either description for a term which shall not he less than seven years, but which may extend to imprisonment for life, and shall also be liable to fine.
2. Whoever,—
3. being a police officer, commits rape—
4. within the limits of the police station to which such police officer is appointed; or
5. in the premises of any station house; or

iii.on a woman in such police officer’s custody or in the custody of a police officer subordinate to such police officer; or

1. being a public servant, commits rape on a woman in such public servant’s custody or in the custody of a public servant subordinate to such public servant; or
2. being a member of the armed forces deployed in an area by the Central or a State Government commits rape in such area; or
3. being on the management or on the staff of a jail, remand home or other place of custody established by or under any law for the time being in force or of a women’s or children’s institution, commits rape on any inmate of such jail, remand home, place or institution; or
4. being on the management or on the staff of a hospital, commits rape on a woman in that hospital; or
5. being a relative, guardian or teacher of, or a person in a position of trust or authority towards the woman, commits rape on such woman; or
6. commits rape during communal or sectarian violence; or
7. commits rape on a woman knowing her to be pregnant; or
8. commits rape on a woman when she is under sixteen years of age; or
9. commits rape, on a woman incapable of giving consent; or
10. being in a position of control or dominance over a woman, commits rape on such woman; or
11. commits rape on a woman suffering from mental or physical disability; or
12. while committing rape causes grievous bodily harm or maims or disfigures or endangers the life of a woman; or
13. commits rape repeatedly on the same woman, shall be punished with rigorous imprisonment for a term which shall not be less than ten years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person’s natural life, and shall also be liable to fine.

Explanation.—For the purposes of this sub-section,—

1. “armed forces” means the naval, military and air forces and includes any member of the Armed Forces constituted under any Jaw for the time being in force, including the paramilitary forces and any auxiliary forces that are under the control of the Central Government!, or the State Government;
2. “hospital” means the precincts of the hospital and includes the precincts of any institution for the reception and treatment of persons during convalescence or of persons requiring medical attention or rehabilitation;
3. “police officer” shall have the same meaning as assigned to the expression “police” under the Police Act, 1861;
4. “women’s or children’s institution” means an institution, whether called an orphanage or a home for neglected women or children or a widow’s home or an institution called by any other name, which is established and maintained for the reception and care of women or children.

Punishment for causing death or resulting in persistent vegetative state of victim.: 376A.: Whoever, commits an offence punishable under sub-section (l) or sub¬section (2) of section 376 and in the course of such commission inflicts an injury which causes the death of the woman or causes the woman to be in a persistent vegetative state, shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person’s natural life, or with death.

Sexual intercourse by husband upon his wife during separation: 376B- Whoever has sexual intercourse with his own wife, who is living separately, whether under a decree of separation or otherwise, without her consent, shall be punished with imprisonment of either description for a term which shall not be less than two years but which may extend to seven years, and shall also be liable to fine.

Explanation.—In this section, “sexual intercourse” shall mean any of the acts mentioned in clauses (a) to (d) of section 375.

Sexual intercourse by person in authority. 376C. Whoever, being—

1. in a position of authority or in a 6duciary relationship; or
2. a public servant; or
3. superintendent or manager of a jail, remand home or other place of custody established by or under any law for the time being in force, or a women’s or children’s institution; or
4. on the management of a hospital or being on the staff of a hospital, abuses such position or fidduciary relationship to induce or seduce any woman either in his custody or under his charge or present in the premises to have sexual intercourse with him, such sexual intercourse not amounting to the offence of rape, shall be punished with rigorous imprisonment of either description for a term which shall not be less than 6ve years, but which may extend to ten years, and shall also be liable to fine.

Explanation l.—In this section, “sexual intercourse” shall mean any of the acts mentioned in clauses (a) to (d) of section 375.

Explanation 2. —For the purposes of this section, Explanation I to section 375 shall also be applicable.

Explanation 3.—”Superintendent”, in relation to a jail, remand home or other place of custody or a women’s or children’s institution, includes a person holding any other office in such jail, remand home, place or institution by virtue of which such person can exercise any authority or control over its inmates.

Explanation 4.—The expressions “hospital” and “women’s or children’s institution” shall respectively have the same meaning as in Explanation to sub-section (2) of section 376.

Gang rape: 376D. Where a woman is raped by one or more persons constituting a group or acting in furtherance of a common intention, each of those persons shall be deemed to have committed the offence of rape and shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to life which shall mean imprisonment for the remainder of that person’s natural life, and with fine:

Provided that such fine shall be just and reasonable to meet the medical expenses and rehabilitation of the victim:

Provided further that any fine imposed under this section shall be paid to the victim.

Punishment for repeat offenders: 376E. Whoever has been previously convicted of an offence punishable under section 376 or section 376A or section 3760 and is subsequently convicted of an offence punishable under any of the said sections shall be punished with imprisonment for life which shall mean imprisonment for the remainder of that person’s natural life, or with death.’.

Section 509 in The Indian Penal Code: Word, gesture or act intended to insult the modesty of a woman.—Whoever, intending to insult the modesty of any woman, utters any word, makes any sound or gesture, or exhibits any object, intending that such word or sound shall be heard, or that such gesture or object shall be seen, by such woman, or intrudes upon the privacy of such woman, shall be punished with simple imprisonment for a term which may extend to one year, or with fine, or with both. or is alleged to have been committed or attempted, then such information shall be recorded, by a woman police officer or any woman officer;

E. Right of an Accused to get Copy of an FIR

Accused cannot demand the copy of FIR from police who is investigating but can get certified copy of the same from Magistrate court. The accused is entitled to get a copy of the FIR at an earlier stage as prescribed under Section 207 of the CrPC. An accused who has reasons to suspect that he has been roped in a criminal case and his name may be finding place in a First Information Report can submit an application through his representative/agent/parokar for grant of a certified copy before the concerned police officer or to the Superintendent of Police on payment of such fee which is payable for obtaining such a copy from the court. On such application being made, the copy shall be supplied within twenty-four hours.

Where the police has filed a charge sheet on completion of investigation, clause (ii) of Section 207 of the Cr.P.C. requires the Magistrate concerned to furnish to the accused a copy of the FIR free of cost. Similarly, combined reading of Section 173 (5) and (7) of the CrPC shows that after filing of the charge sheet, the police may also supply copy of the FIR to the accused person along with other papers of the charge sheet. However, the aforesaid provisions of Section 207 and Section 173 of the CrPC are attracted, only after filing of the charge sheet by the police. Therefore, these provisions require supply of the FIR to the accused only after the filing of the charge sheet. There is no specific provision in the CrPC. requiring supply of the FIR to the accused person before the filing of the charge sheet or immediately after registration of the FIR. But, there are certain judgments of various high courts requiring supply of the FIR to the accused on his request on payment of legal fees, after registration of the same and even before filing of the charge sheet.

To begin with, there are several judgments of the High Courts holding that FIR is a “public document” within the meaning of Section 74 of the Evidence Act. Therefore, as required under the provisions of Section 76 of the Evidence Act, certified copy of the FIR has to be given to the accused person on his request on payment of the applicable legal fees by every public officer (such as the officer in charge of the police station) having the custody of such document. The copy of FIR can be obtained by accused under RTI or as certified copy. Various courts have given important precedents in this area.

High Court of Kerala has directed the police to make available the copy of First Information Report to the accused within two days of his application. First bench comprising of Chief Justice Ashok Bhushan and Justice A.M. Shafique also held that the police authorities are obliged to provide for copy of the FIR on an RTI application, unless an appropriate authority decides it is exempted under section 8 of the RTI Act.  In a significant order passed by Bombay high court has ruled that the police should give a person facing a criminal charge a copy of the FIR at the time of arrest, if he asks for it. Under the current provisions of the Criminal Procedure Code (CrPC), only a magistrate can give a copy of the FIR to the accused. Pursuant to a recent judgment of the Orissa High Court, the Crime Branch has come up with circular comprising clear guidelines to be followed for issuance of FIR copy to the applicant within 24 hours of the receipt of the application. The FIRs will also have to be uploaded on the website of the Odisha Police within 24 hours of its registration, except if it is sensitive in nature. Police can, however, refuse to hand over a copy if cases relate to rape, gangrape, and protection of children from sexual offences, juvenile justice and official secrets among others.

F. Quashing of FIR

Setting up of criminal law in motion, where no case is made out, is sufficient ground to seek quashing of the FIR. The same can be prayed under section 482 of the CrPC before appropriate High Courts of India. However, any interference by this Court at the stage of registration of First Information Report itself may amount to interfering with the statutory duty of the police officers to register the FIR and investigate the same in case of a cognizable offence.

The broad scheme of CrPC requires attention to Section 173 of the Code that mandates that every investigation under Chapter XII shall be completed without unnecessary delay and as soon as it is completed, the officer-in-charge of the police station shall forward to a Magistrate empowered to take cognizance of the offence on a police report. Section 190 which forms part of Chapter XIV dealing with the conditions requisite for initiation of proceedings declares that any Magistrate of the First Class, and any Magistrate of the second class specially empowered in this behalf, may take cognizance of any offence upon receiving a complaint of facts which constitute such offence, upon a police report of such facts, upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.

There is no provision in the Code, which would enable any Magistrate, or for that matter any Court to interfere with the jurisdiction of an officer-in-charge of a police station to investigate into a case relating to commission of a cognizable offence. On the other hand, a qualified power is conferred upon a Magistrate to set the investigation in motion whenever there is a failure of duty on the part of the police officer to investigate the case. The power conferred upon the Magistrate is positive in nature. It is obvious that under no circumstances, the process of investigation after registering a first information report relating to commission of a cognizable offence can be interfered with by any Magistrate and for that matter any Court under the Code of Criminal Procedure. The Code clearly demarcates the jurisdiction and power of a police officer to investigate into a cognizable offence and the jurisdiction conferred upon the Courts for taking cognizance of a case.

Precedents on Quashing

• Powers of Court under Section 482 CrPC: The question as to whether this Court in exercise of its jurisdiction Under Section 482 of the Code can quash the FIR itself is integrally and inexorably intertwined with the jurisdiction and power of the police officer to investigate into commission of a cognizable case came up before Andhra Pradesh High Court in–Pearl Beaverages Ltd. And Ors. vs State Of Andhra Pradesh And Anr. 2000 (2) ALD Cri 32, 2000 (3) ALT 585, 2000 CriLJ 5044 where in it was observed that the distinction in law between the powers of the Court to take cognizance of a case and their powers of inquiry and trial on the one hand and the powers of a police officer to investigate into a case relating to commission of a cognizable offence on the other hand are too well recognized. It has been observed by the higher Courts that function of the judiciary and the police are complementary not overlapping. It has been clearly held that the Court’s functions begin when a charge is preferred before it and not until then.

• Complaint or FIR does not disclose Offence: In R.P. Kapur v. State of Punjab (1960 AIR 862) the Supreme Court observed observed that cases may also arise where the allegations in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety, do not constitute the offence alleged; in such cases no question of appreciating evidence arises; it is a matter merely of looking at the complaint or the First Information Report to decide whether the offence alleged is disclosed or not. In such cases it would be legitimate for the High Court to hold that it would be manifestly unjust to allow the process of the criminal Court to be issued against the accused. The Supreme Court having laid down the law refused to quash the proceedings.

In State of U.P. v. R.K. Srivastava (1989 AIR 2222)also the Supreme Court observed: “It is a well settled principle of law 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.“

• No arbitrary power under Section 482 CrPC: In Kurukshetra University v. State of Haryana (AIR 1977 SC 2229) the very same question came up for consideration before the Supreme Court. On appeal by the University to the Supreme Court, it is held that:“It surprises us in the extreme that the* High Court thought that in the exercise of its inherent powers Under Section 482 of the Code of Criminal Procedure, it could quash a First Information Report. The police had not even commenced investigation into the complaint filed by the Warden of the University and no proceeding at all was pending in any Court in pursuance of the F.I.R. It ought to be realized that inherent powers do not confer an arbitrary jurisdiction on the High Court to act according to whim or caprice. That statutory power has to be exercised sparingly, with circumspection and in the rarest of rare cases.”

Bhajan Lal’s Case

The Supreme Court in Bhajan Lal’s case (State of Haryana v. Ch. Bhajan Lal 1992 AIR 604) surveyed the whole law relating to the registration of a crime and its investigation up to the taking cognizance by the Court laid down the principles of law enunciated by the Court in series of decisions relating to the exercise of extraordinary jurisdiction under Article 226 of the Constitution of India or the inherent jurisdiction Under Section 482 of the Code and categories of cases by way of an illustration whether the power can be exercised to quash the proceedings held as follows:

(1) Where the allegations made in the FIR or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.

(2) Where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers Under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155 (2) of the Code.

(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.

(4) Where, the allegations in the F.I.R. do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated Under Section 155(2) of the Code.

(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.

(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously Instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.

Conclusion

FIR sets the investigation into motion and its quashing power vest only with the High Court under section 482 of CrPC which is to be sparingly used and not otherwise as per the settled position of law discussed above. Accused too has right to obtain the copy of FIR except when prohibited by law for grave offences.

[1] Section 2 (c) of The Criminal Procedure Code, 1973 says, that cognizable offenses or cognizable cases are those under which a police officer can arrest without an arrest warrant. Cognizable offenses are those offenses, which are of serious in nature. Example- Murder, Rape, Dowry Death, Kidnapping, Theft, Criminal Breach of Trust, Unnatural Offenses.