Getting the FIR Registered is the Biggest Hurdle
The refusal to register your FIR is such a common malady in India that every Indian knows about it. In fact, it is so enormously difficult that most people think that they have won half the battle in their fight for justice if the FIR is registered. If the accused is arrested, people think that they have got justice. If you have been reading about the investigation of scams, you would have noticed that now the people are satisfied even if the police merely question the powerful or resourceful—they know that nothing more would be done to them by the police.
No one bothers about what happens thereafter. Nobody knows that registering the FIR or arresting the accused is just hogwash. The real mischief, the real exercise of the powers of the police comes into play in the subsequent investigation. It is there that the cops sell their souls to the highest bidder. And that, ladies and gentlemen, is the reason that most of the accused in India go scot-free from the trial.
But, let us first acquaint the readers with the first great hurdle of their encounter with the police.
Usually, they would refuse to register the FIR on point of jurisdiction and you will be made to run from pillar to post. In spite of the judgment in Satvinder Kaur (1999), it is very common for FIRs to be refused on grounds of jurisdiction. That they must register a Zero FIR first and then transfer it to the concerned police station has been made clear a myriad times even in the media, but as you know, the cops are incorrigible.
A hypothetical but harrowing case study
Suppose you are a rape victim. You go the police station and narrate your views. You will generally be met with an utterly unsympathetic attitude, if not outright hostile.
The first point of contact in a police station, the duty officer, often dissuades a woman from registering the complaint of sexual violence. Every Indian knows the reasons given by them—they range from the prestige of her family; problems likely in her marriage if she is unmarried; problems in her marriage if she is married; problems in her job, and so on.
In November 2012, coming down heavily on the attitude of the police towards rape victims and their families, a division bench of the Karnataka High Court headed by Chief Justice Vikramjit Sen had observed, “Until it happens to their families, they can’t understand…I never understand why the police always take the side of villains. Whether it is Haryana or Karnataka, it is the same. No sympathy over the plight of women.”
Sting operations conducted by many news reporters have revealed the disgusting mindset of the policemen across Delhi and the National Capital Region. In a two-week-long investigation, Abhishek Bhalla and G. Vishnu of Tehelka posing as research scholars spoke to more than 30 senior cops in the Delhi-NCR region across Gurgaon, Noida, Ghaziabad and Faridabad. And you can rest assured that the situation is almost exactly the same elsewhere too. Hidden camera interviews completely exposed the insensitivity of the cops about rape victims and rape cases. These policemen blamed women for how they dress, how they behave, the fact that they drink or have relationships; it’s the victim who is at fault, not the rapist, according to these cops.
In these secret recordings, the policemen have blamed the victims for having a “loose character”. They also try to prove that the girl was actually a sex worker and the complaint of rape was made because there was a dispute over the payment. Another general tendency has been to prove that the girl knew the accused and the intercourse was consensual—the complaint of rape was made because the relationship soured or it was found out by the family of the girl.
What does the law say?
In the case of Lalita Kumari (2013), a Constitution Bench of the Supreme Court held that:
i) Registration of FIR is mandatory under Section 154 of the Code if the information discloses the commission of a cognizable offence and no preliminary inquiry is permissible in such a situation.
ii) 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 the cognizable offence is disclosed or not.
iii) If the inquiry discloses the commission of a cognizable offence, the FIR must be registered. In cases where preliminary inquiry ends in closing the complaint, a copy of the entry of such closure must be supplied to the first informant forthwith and not later than one week. It must disclose reasons in brief for closing the complaint and not proceeding further.
iv) The police officer cannot avoid his duty of registering an offence if a cognizable offence is disclosed. Action must be taken against erring officers who do not register the FIR if information received by him discloses a cognizable offence.
v) 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.
vi) As to what type and in which cases preliminary inquiry is to be conducted will depend on the facts and circumstances of each case. The category of cases in which preliminary inquiry may be made are (illustrated) as under:
Matrimonial disputes/ family disputes; Commercial offences; Medical negligence cases; Corruption cases; and cases where there is abnormal delay/laches in initiating criminal prosecution, for example, over 3 months delay in reporting the matter without satisfactorily explaining the reasons for the delay.
vii) While ensuring and protecting the rights of the accused and the complainant, a preliminary inquiry should be made time-bound and in any case, it should not exceed 7 days. The fact of such delay and the causes of it must be reflected in the General Diary entry.
viii) Since the General Diary/Station Diary/Daily Diary is the record of all information received in a police station, we direct that 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 said Diary and the decision to conduct a preliminary inquiry must also be reflected, as mentioned above.
Your options, which are good only in theory
You may write a complaint of his case and the fact of refusal by the police and may send it by post to some senior officer like the SP or the Commissioner, etc. If you quote the law to the senior cops, they might chuck you out and tell you to go to the Supreme Court itself and get it done from there. The cops have very fragile egos; you see—don’t ever touch it. How are you going to raise the money to fight it out in the Supreme Court? And please remember, the senior officers have seldom helped anybody. You might be given a free lecture on the workload of the police and how they must prioritize.
You may send a written complaint in the form of a letter to the concerned judicial magistrate. You may also send an application to the judicial magistrate for taking action under Section 156(3) CrPC. This is often a relatively better option in the sense that you may not be obliged to spend much. However, it will only, at best, get you the case registered. The cops can still commit much mischief in the investigation.
You may file a writ petition in the High Court also, which may even order disciplinary action against the concerned police officer. You can also seek damages/compensation. It is a very costly option as anybody who has ever been to the high court knows it too well.
You may also complain before the State Human Rights Commission of that state or National Human Rights Commission. You may try your luck, but do not harbour much hope from the venture.
Nothing moves the cops
Following the outrage over the Nirbhaya case, in a knee-jerk fashion so characteristic of governance in India, they promulgated the Criminal Law (Amendment) Ordinance, 2013, which subsequently became Act 13 of 2013.
Vide this Act, the new insertion of Section 166A(c) in the IPC provides as follows: 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 (2 of 1974), in relation to a cognizable offence punishable under section 326A, section 326B, section 354, section 354B, section 370, section 370A, section 376, section 376A, 2[section 376AB, section 376B, section 376C, section 376D, section 376DA, section 376DB], 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.
In simple words, it meant that failure to register FIR on receipt of information about any cognisable referred to above will invite punishment.
The question is more than eight years have passed since this. What happened on the ground? To my knowledge, not a single police officer has ever been punished under this. Those who doubt can check for themselves.
In fact, on May 16, 2019, the Ministry of Home Affairs was obliged to issue a letter to all the states regretting, “Even with the provisions in law being in place, certain instances reported recently point to the failure of police in some States/UTs to adhere to these legal provisions. This may not augur well for the delivery of criminal justice in the country, especially in the context of women safety. They were requested to issue instructions and conduct refresher courses to increase awareness.”
Even if they did issue instructions or organized courses, they fell on deaf ears. The Government was merely being polite. Had the cops bothered to comply one bit in six years, the Government of India would not have been obliged to issue such a letter.
Extremely unfortunate, but this is what the Indian police is.
