Filing a complaint relating to crime is a first step towards setting legal machinery against culprits. Before starting with filing a criminal complaint, there are some basic questions that stuck in the mind of layman. The first foremost question is that who can initiate the process. In simplest terms, who can file complaint of crime, whether it is necessary is that only victim can file the same. To give answer to this commonly asked question, our Indian Law provides that it is not mandatory that only victim of the crime can file the complaint even any person who knows about the crime can provide information to the police.
There are two options available to the person who wishes to file complaint. The first is to give information to the police and the second is to file complaint before Magistrate. Let’s throw some light on both options available under Indian Law.
What is FIR?
FIR stands for “FIRST INFORMATION REPORT” as name suggest that it is first step towards criminal action which may result into conviction or acquittal of accused person. The police officials investigate the case on the basis of FIR.
As per Section 154 of Code of Criminal Procedure hereinafter called Cr.P.C. any information regarding commission of a cognizable offence can be reported to the police by a witness or victim or a person who has knowledge about the act. That provided information to the police can be recorded as FIR. It can be filed at a nearest police station to the place of crime.
What does mean by complaint?
According to Section 2 (d) of Cr.P.C a complaint is an allegation made to the Magistrate in writing or verbal form which mentioned about the offence committed by a person whether known or unknown. It does not include a police report. It is notable that complaint can be filed for both cognizable as well as non-cognizable offence.
What is difference between cognizable and non-cognizable offence?
Before moving further to the topic, it is important to understand the difference between these two categories of offences. Our Indian legal system divides criminal offences into two categories i.e. cognizable and non-cognizable offences. The difference between two lies in the gravity and punishment provided for the offence. The cognizable offences are serious one for e.g. murder, rape, robbery falls under this category. On the other hand, less serious offences like defamation, cheating, cheque dishonour and bigamy comes under the category of non-cognizable offences.
The other major difference lies with the arrest of accused person. In cognizable offences the police can arrest without warrant, whereas on commission of non-cognizable offence arrest warrant is required to arrest the accused.
How to file a FIR?
An aggrieved person can inform about commission of an offence to the police via call or in person. Even a call on emergency helpline 100 can be treated as information for the purpose of registering a FIR. If such information discloses the commission of cognizable offence then police officer is duty bound to register a FIR. In case of doubt relating to the category of offence whether it is cognizable or non-cognizable offence, then police will initiate preliminary enquiry to determine the category of offence.
What if police refuses to register a FIR?
In that scenario the remedy is available under Section 154 (3) of Cr.P.C. to approach Superintendent of Police. An aggrieved person can approach to the Superintendent of Police of concerned district by filing written representation if officer incharge of concerned police station refuses to register a FIR.
What if both deny for registering a FIR?
The informant can approach Magistrate of concerned jurisdiction if both local police station and Superintendent of Police refuses to register a FIR. Magistrate is empowered under Section 156 (3) of Cr.P.C. to issue direction to the police to investigate the matter on receipt of written representation by the informant. It is marked here that before moving to the Magistrate under Section 156 (3) of Cr.P.C. it is necessary to knock the door of local police station and Superintendent of Police.
Can we move to High Court for registering a FIR?
Our legal system while having affirmative approach in this regard empowered High Courts with inherent powers under Section 482 of Cr.P.C. By invoking these powers an aggrieved person can approach High Court by filing writ petition or direction before concerned High Court of the State to seek direction to register a FIR. This remedy is available in a situation where all the other remedies failed to work.
Procedure of filing a complaint:
A victim may file complaint before Judicial Magistrate about commission of offence. The provisions related to complaint are provided under Section 200 of Cr.P.C. If complaint is not in written form then Magistrate after taking cognizance may examine complainant and witnesses and then reduce the complaint into writing. The complainant and witnesses are required to sign the written complaint in front of such Magistrate.
If complaint is in written form then Magistrate also required to examine the same unless it is filed by any designated public servant while discharging his/her officials duties and if Magistrate forward the case to another Magistrate under Section 192 of Cr.P.C. for any trial or inquiry. Howbeit, two options are available with the Magistrate if he is not satisfied that complaint discloses any offence, first he may dismiss the complaint and second option is that he may order the police for further investigation under Section 202 of Cr.P.C.
Conclusion:
The lack of awareness of criminal procedure might be a reason of growth of crime in any nation. India has bad reputation of non-reporting of crimes because bulks of the Indian Citizens are not aware about their legal rights. There might be socio-political reasons also for not taking actions against the crime. Understanding the legal rights is a key to increase the crime reporting. Our lawmakers bring codified law i.e. Code of Criminal Procedure which provides detailed insight on procedure of filing criminal complaints.
-Kiranpreet Kaur
Associate at Aggarwals & Associates, S.A.S. Nagar, Mohali
