This article deals with a common instance of people getting drunk and ending up quarreling over frivolous matters, resulting with broken jaws and blackened eyeballs. Maybe the other guy landed the first punch or maybe you threw a Hail Mary, whatever maybe the case, you must know the legal recourse when something like this happens to you or someone you care about.
In my first internship experience my mentor dealt with a case of a client (I shall call him Rock) who had gotten himself drunk and in a fight with another man named Kevin (pun most likely intended). Both parties suffered injuries along with damage caused to the property of Kevin.
The next day Kevin got himself medically examined and acquired certificate stating the injuries to be of grievous nature. He then proceeded to file a complaint and register a FIR against the client (Rock). What happened next is an interesting cut to reality.
Filing of an FIR
Upon reaching the local police station Kevin discovered that the police were reluctant to register an FIR and suggested both parties to make amends and seek peace. But this was not the approach Kevin agreed with and hence called his lawyer Vin to assess the situation.
Let’s take a look as what are the possible legal remedies Vin could have suggested to his client Kevin.
What to do when the police refuse to register your FIR?
Option 1: If the police refuse to register any complaint -leaving no possibility of any record of the client visiting the police station and desiring any action, attention or cognizance to their cause-
His advice was to email the complaint to as many state officials of the Department of Police as possible like the DCP, ACP SP. This is deemed as an official record of the perseverance and attempt to put across the information contained in the complaint and the fact that such complaint was refused by the police officials of the respective police station to be registered on official records.
Delay in filing a complaint:
Sometimes a person against whom an offence has been committed decides to file a complaint or FIR in respect such offence, after a long period of time. In such situation police often express their disbelief of the information provided and proceeds to refuse registering a complaint or FIR.
Depending on the seriousness of the offences and how they relate to the penalties, Chapter XXXVI of the Code of Criminal Procedure, which is made up of Sections 467 to 473, establishes specific limitation periods for taking cognizance of various offences respectively. The inclusion of a deadline was justified by the fact that the as time passes and memories fade, witnesses’ evidence becomes less reliable. Consequently, as the data becomes more complex, the likelihood of judgmental errors rises. In addition, the statute of limitations would strain the system to guarantee that the offender is found guilty and punished of the criminal prosecution swiftly, to guarantee prompt justice.
Rules according to the CRPC of the time-limit within which cognizance is allowed-
Section 468 of the Code of Criminal Procedure lays down the period of limitation for taking cognizance of an offence. In accordance with this Section, the statute of limitations is six months for offences that are solely punished by a fine and one year for offences that are punishable by imprisonment for a term not to exceed one year. According to Section 468, the statute of limitations is three years if the offence carries a sentence of imprisonment that is greater than one year but not greater than three years. However, this Section does not specify the statute of limitations for offences carrying a sentence of more than three years in jail. This implies that there is no upper limit to the limitation in connection to offences carrying a three-year or longer sentence. Accordingly, Section 473 of the Code of Criminal Procedure allows the Court to declare an offence to have occurred even after the statute of limitations has run if it determines from the facts and circumstances of the case that the delay was properly justified or that it is necessary to do so for the sake of justice.
In Asst. Customs Collector, Bombay v. L.R. Melwani, AIR (1970) SC 962, 965, the
Supreme Court held that:
“The question of delay in filing a complaint may be a circumstance to be taken into consideration in arriving at the final verdict. But by itself it affords no ground for dismissing the complaint”
There are other options that one can utilize for the purpose of getting the FIR filed.
Option 2: If the police register the complaint but not the FIR, filing an application before the local magistrate under Section 156 Clause (3) of the CRPC for cognizable offences. If the application is accepted thereafter the magistrate may direct the police to register the FIR and to investigate into the matter.
For the application to be taken into consideration the complainant is expected to have sufficient substantiation upon his reasoning when he/she is asked the following questions by the concerned judicial official:
- is the offence cognizable or not
- has any written complainant furnished before the police
Now if the client has got a copy of the complainant he is expected to produce before the court but if there is no acknowledgement given by the police to him of the complaint being registered, before the filing of this application one must get the complaint on record via email, or speed post indicating that a communication was addressed to the concerned police station. Also, the complaint must also be communicated on official basis by any which way stated above requesting for the complaint to be registered on official record by the police.
Option 3: Filing the complaint in the magistrate office for investigation -Section 190 and Section 200 of the CRPC
Section 190 of CrPC- Cognizance of offences by Magistrates.
- Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under sub- section (2), 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.
- The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under sub- section (1) of such offences as are within his competence to inquire into or try.
Section 200 -Examination of complainant.
A Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate: Provided that, when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses-
(a) if a public servant acting or- purporting to act in the discharge of his official duties or a Court has made the complaint; or
(b) if the Magistrate makes over the case for inquiry or trial to another Magistrate under section 192: Provided further that if the Magistrate makes over the case to another Magistrate under section 192 after examining the complainant and the witnesses, the latter Magistrate need not re- examine them.
Approaching the High Court directly under-
- Article 226 Power of High Courts to issue certain writs
- Section 482 of CRPC
- Saving of inherent powers of High Court. Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.
Is approaching the HC an easy tactic of getting my FIR registered by the police?
The High Court of Punjab and Haryana in a case had quoted the of CrPC for the appropriate usage of this remedy. In its observation it stated “if a person has a grievance that his FIR has not been registered by the police station his first remedy is to approach the Superintendent of Police under Section 154(3) CrPC (upon non investigation of a complaint, powers of superior officer to launch probe on a complaint) or other police officer referred to in Section 36 CrPC (powers of a superior officer in police). If despite approaching the superintendent of police or the officer referred to in Section 36 his grievance still persists, then he can approach a magistrate under Section 156(3) CrPC (under which a magistrate can take cognizance of a complaint on failure on the same by police).”
Read article- https://www.hindustantimes.com/cities/chandigarh-news/dont-immediately-rush-to-us-if-fir-not-registered-by-police-hc-101634932244173.html
Option 5: Filing an application before the State Human Rights Commission for infringement of rights.
What should be the course of reply and action when the police station upon investigation or filing of a complaint questions the client of having any proof to substantiate his claims.
Statement made or recorded under Section 161 of the CRPC to the investigating officer is an oral testimony and proof enough for the complaint to be registered and initiate investigation. The claims and allegations made therein are meant to be subjected to corroboration with eyewitness testimonies at the time of the trial. During the trail such claims must stand their ground after cross-examinations to be allowed further developments and progress, but only if they don’t, can they be quashed and rejected for consideration and not at the time when they are made by the complaint before the investigating officer.
Now that the complaint had been recorded and the FIR for the offence had been registered at the police station, Kevin anticipated that the police might be reluctant in acting upon the complaint and cause delay and distress in investigation. He called upon to seek advice and express his concern. In response to such apprehensions, Vin counseled him to calm down and strategize his next moves.
We can learn by way of counseling that instead of waiting upon the police to carry out the investigation, one must assume that the police would be reluctant in their functioning and thereby approach the court of law and the magistrate who has jurisdiction over the concerned police station and file an application for sustained attention toward the case and keep the police involved. This might compel the investigating officer to report the progress made on the case to the judicial officer in the form of status reports and strategy adopted. This would help the case to stay alive and reach favorable conclusions for the complainant.
But let’s not forget which side we are on. Remember we had a client named Rock who beat-up this guy Kevin. Till now we know Kevin managed to file an FIR against our client. What could we, as lawyers, do for Rock let’s find out.
So, Rock knew he had blacked Kevin’s eye and broken his car’s windows. He had an idea that this could lead to a criminal case. Hence, he called us to seek advise as to what he should next. So, the first thing he needed from us was not to get arrested which of course meant was getting a bail before the arrest is made. This essentially is the essence of an anticipatory bail.
What is an anticipatory bail and how do I get one?
Section 438 defines anticipatory bail as-
Direction for grant of bail to person apprehending arrest.
“When any person has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this section; and that Court may, if it thinks fit, direct that in the event of such arrest, he shall be released on bail.”
Read full Section-
Process of applying for an anticipatory bail:
- Discussion of the facts of the case with the client and drafting of an anticipatory bail application based upon the same.
- Verification of the contents of the draft and approval by the client
- Signing of the draft and the affidavits along with the vakalatanama in favor of the lawyer
- Attachment of the court fee and all necessary formalities
- Filing of the bail application in the court complex at the filing counters. (Before pandemic physically filing was done but during and after pandemic filing via emailing is also an option available to lawyers)
- When the matter is listed before the court of sessions judge under Section 408 of the CrPC, the judge then issues a notice to the police station mentioned in the application
- The investigating officer then files a status report and explain why anticipatory should not be granted
- In the next hearing arguments of both parties i.e., IO and the pleader are heard and the judge decides whether or not the bail would be granted. If it is granted the process ends here but if not, the lawyers are may approach higher courts like High Court under Section 438 of CrPC and then Supreme Court through a Special Leave Petition under Article 136 of the COI challenging the impugned order of the High Court.
Why sometimes it is better not to get an anticipatory bail?
Understanding that an anticipatory bail is not the magic cloak for escaping an arrest is imperative. It is a double-edged sword and has its downsides. Once you apply for an anticipatory bail you mark yourself as an accused in the eyes of the police even if you could only be a witness or not even that. The police after the grant of the bail becomes bound to file a chargesheet and proceed against the accused awaiting trial. Hence if you are sure that you are clean and that the police have no reason sufficient enough to have suspicion or bias against you, considering not getting this bail is a good strategy. Having said that if you are considering to get an anticipatory bail it is usually rightly assumed that you are apprehending or anticipating arrest for your actions, you are advised to proceed to get one.
When happens if police refuse to grant bail?
Grounds of refusal could be-
Existence of multiple FIR and cases registered against the accused applicant person
therefore, the argument that the bail application should be denied. Since the bail
jurisprudence is such that the antecedents of a person are looked into so this argument
holds practical merits.
Legal discourse if an anticipatory bail is rejected
- Approaching the High Court under Section 438 of CrPC
- Supreme Court through a Special Leave Petition under Article 136 of the COI challenging the impugned order of the High Court
- Surrendering before the trail court and then again move a bail application
- If it is a sessions triable case – move the application before the sessions court
- If it is a magistrate triable case- move the application first before the magistrate
and then if not succeeded then the sessions court against which the High court and against the Supreme court.
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Article by Simran Bhatt