Wednesday, August 13, 2008

SC directive on non-registration of FIRs

The following is a guest post from Vijay Nair, one of the Founder-Partners of KNM & Partners, Law Offices who has been in litigation practice for the last 14 years. He may be contacted at vijaynair.advocate [at] gmail [dot] com

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A crtical analysis of Order dated 14.07.2008 of the Supreme Court of India passed in Writ Petition (Criminal) 68 of 2008 titled “Lalita Kumari –versus- Government of Uttar Pradesh and others”.

In its Order dated 14.07.2008, the Supreme Court has, inter-alia, made the following directions:

..............In view of the above, we feel that it is high time to give directions to Governments of all the States and Union Territories besides their Director Generals of Police/Commissioners of Police as the case may be to the effect that if steps are not taken for registration of F.I.Rs immediately and copies thereof are not made over to the complainants, they may move the concerned Magistrates by filing complaint petitions to give direction to the police to register case immediately upon receipt/production of copy of the orders and make over copy of the F.I.Rs to the complainants, within twenty four hours of receipt/production of copy of such orders. It may further give direction to take immediate steps for apprehending the accused persons and recovery of kidnapped/abducted persons and properties which were subject matter of theft or dacoity. In case F.I.Rs are not registered within the aforementioned time, and/or aforementioned steps are not taken by the police, the concerned Magistrate would be justified in initiating contempt proceeding against such delinquent officers and punish them for violation of its orders if no sufficient cause is shown and awarding stringent punishment like sentence of imprisonment against them inasmuch as the Disciplinary Authority would be quite justified in initiating departmental proceeding and suspending them in contemplation of the same.....”

(emphasis supplied)
The Court has further directed that the aforesaid directions be placed on its website so as to educate the general public.

There is a school of thought which delves upon the aforesaid directions issued to say that the Supreme Court has now made it mandatory for every complaint presented to a Police Officer to be registered as a First Information Report, failing which it has been directed in the order that the concerned Police Officer shall be liable to be punished for Contempt of Court by the Magistrates and for Departmental Proceedings. This, according to them would increase instances of registration of frivolous First Information Reports by Police Officers afraid of prospective action against them by the Complainants.

In all my humility, I wish to differ from the aforesaid school of thought.
The Supreme Court has by passing the aforesaid direction, merely set down, in black and white, the existing procedure under Section 156 (3) of the Code of Criminal Procedure, 1973 and has not ventured beyond the existing law.

A plain reading of the direction would reveal that the Supreme Court has set down a step wise procedure: -

(a) if steps are not taken for registration of F.I.Rs immediately and copies thereof are not made over to the complainants, they may move the concerned Magistrates by filing complaint petitions.

(b) The Magistrate may give direction to the police to register case immediately upon receipt/production of copy of the orders and make over copy of the F.I.Rs to the complainants, within twenty four hours of receipt/production of copy of such orders.

(c) In case F.I.Rs are not registered within the aforementioned time, and/or aforementioned steps are not taken by the police, the concerned Magistrate would be justified in initiating contempt proceeding against such delinquent officers; and

(d) punish them for violation of its orders if no sufficient cause is shown and awarding stringent punishment like sentence of imprisonment against them.

(e) The Disciplinary Authority would be quite justified in initiating departmental proceeding and suspending them in contemplation of the same.”

From the above, it may be seen that the directions issued by the Supreme Court above operates in different spheres.

Supreme Court cannot usurp or upstage the power of a Magistrate under Section 156 (3) of the Code of Criminal Procedure, 1973. The Supreme Court and the High Courts have similar powers as under 156 (3) of the Code of Criminal Procedure, 1973 under Article 32 and Article 226 respectively.

The apparent dichotomy of the school of thought mentioned before is evident from the very fact as to how “contempt” is defined under the Contempt of Courts Act, 1971.

By not registering a First Information Report in the first instance, the Police Officer is neither in wilful disobedience to any judgement, decree, direction, order, writ or other process of a court or wilful breach of an undertaking given to a court, nor has the Police officer by publication (whether by words, spoken or written, or by signs, or by visible representation, or otherwise) of any matter or the doing of any other act scandalized or tend to scandalize, or lower or tend to lower the authority of, any court, or prejudiced, or interfered or tend to interfere with the due course of any judicial proceeding , or Interfered or tend to interfere with, or obstruct or tend to obstruct, the administration of justice in any other manner.

Therefore, for initiating contempt, first there has to be a “Judicial Order”, which can come only after the Complainant gets an Order under Section 156 (3) of the Code of Criminal Procedure, 1973 from the concerned Magistrate directing the Police Officer to “register” a First Information Report and the Police Officer is in wilful disobedience of such Order/direction.

Even thereafter as also stated in the directions dated 14.07.2008, the Police Officer is entitled to show-cause and there can be no automatic provision for arrest or imprisonment.

By not registering a First Information Report in the first instance, the Police Officer is merely exercising the power available with him in Section 157 of the Code of Criminal Procedure, 1973.

In M.C. Abraham and Anr. v. State of Maharashtra and Ors.[2003 (2) SCC 649] the Supreme Court has held as under: -

“The principle, therefore, is well settled that it is for the investigating agency to submit a report to the Magistrate after full and complete investigation. The Investigating agency may submit a report finding the allegations substantiated. It is also open to the investigating agency to submit a report finding no material to support the allegations made in the first information report. It is open to the Magistrate concerned to accept the report or to order further enquiry. But what is clear is that the Magistrate cannot direct the investigating agency to submit a report that is in accord with his views. Even in a case where a report is submitted by the investigating agency finding that no case is made out for prosecution, it is open to the Magistrate to disagree with the report and to take cognizance, but what he cannot do is to direct the investigating agency to submit a report to the effect that the allegations have been supported by the material collected during the course of investigation.”

The aforesaid view has been followed consistently by the Supreme Court, ending with Divine Retreat Centre –versus- State of Kerala [2008 (3) SCC 542]

As regards initiation of Departmental Enquiry is concerned, the same has to be initiated strictly in terms of the rules and law governing the employment of the concerned Police Officer.

In my honest opinion, the directions passed on 14.07.2008 would only affect, if at all, unscrupulous Police Officers who refuse to register genuine complaints and cannot in any manner affect those Police Officers who exercise sound discretion available to them under Section 157 and refuse to register a First Information Report on frivolous complaints.

7 comments:

Perakath said...

The problem of course being that low-level police officers in the very large majority may rightly be described as unscrupulous, wouldn't you say? At least in the estimation of the layman.

Mihir said...

There has been a later order on 8th August. The Supreme Court expressed its position more strongly, saying:

“... the Chief Judicial Magistrate/Chief Metropolitan Magistrate, as the case may be, shall take action in a case of inaction upon filing of complaint petition and give direction to institute the case within the time directed in the said order failing which the Chief Judicial Magistrate/Chief Metropolitan Magistrate, as the case may be, shall not only initiate action against the delinquent police officer but punish them suitably by sending them to jail, in case the cause shown is found to be unsatisfactory. Apart from this, the Chief Judicial Magistrate/Chief Metropolitan Magistrate, as the case may be, shall report the matter to the disciplinary authority at once by fax as well upon receipt of which the disciplinary authority shall suspend the concerned police officer immediately in contemplation of departmental proceedings."

Essentially re-iterating the earlier order, but arguably, in much stronger and mandatory language. The 'would' of the earlier order has become 'should'.

Mihir said...

More specifically, the earlier order stated that the Magistrate 'would be justified'. The language in the later order uses words such as 'Magistrate should' and 'Magistrate shall' Arguably, this might make the criticisms levied against the earlier order even more potent.

Vijay Nair said...

Dear Mihir,

I was concious of the later order when I wrote the analysis. I left the issue open. The moot question that remains to be answered is whether Supreme Court is bypassing Section 156 (3) and Section 157 of Cr. P.C. and if yes, the impact thereof.

Arjun said...

Dear Vijay Nair,
Sec. 157 (2)(b)clearly mentions,
such officer shall also forthwith notify to the informant, if any, in such manner as
may be prescribed by the Provincial Government the fact that he will not investigate the
case or cause it to be investigated.

I wonder how many times the investigating officer follows this procedure.(Infact it is unheard in rural India)

Arjun said...

Dear Mr. Vijay Nair,
In Sandeep Shukla Vs. State of Maharashtra 2009,
The Bombay High Court has stated,
The expression “shall” appearing in Section 154 of the Code of Criminal Procedure is mandatory. This Section places an ‘absolute duty’ on the part of the ‘officer in charge of a police station’

It also states.
As the law does not specifically prohibit conducting of a limited preliminary inquiry, pre-registration of FIR in exceptional and rare cases by the officer in charge of a police station, he may penultimately thus enter into a preliminary inquiry in relation to information supplied of commission of a cognizable offense but only and only upon making due entry in the Daily Diary / Station Dairy / Roznamachar instantaneously with reasons as well as the need for adopting such course of action. Such inquiry should be completed expeditiously and in any case not later than two days.

BUT ALAS WE NEVER FIND INVESTIGATING OFFICERS FOLLOWING SUCH PROCEDURES.
It is pity that 63 years after independence the VICTIM has to approach HC & SC for mere filing of FIR,Leave aside justice. JUSTICE STILL REMAINS AN ILLUSION

Miriam said...

Dear Vijay Nair,
I would like to differ from your statement...
"By not registering a First Information Report in the first instance, the Police Officer is merely exercising the power available with him in Section 157 of the Code of Criminal Procedure, 1973."

Since section 157 describes a scenario where the police has discretion not to further investigate. This section hence does not talk about not registering an FIR. Section 154 clearly starts out with "every information" hence depriving the police of any discretionary powers to register an FIR or not