Following the public uproar after the Delhi gang rape case, and after receipt of the report from the Justice Verma Committee, the President of India has promulgated an Ordinance called THE CRIMINAL LAW (AMENDMENT) ORDINANCE, 2013, for amending the relevant criminal laws for providing stringent provisions to deal with crimes against women. One important amendment made by this Ordinance, that has far-reaching effect on policing and that goes much beyond the issue of crimes against women, has mostly remained unnoticed in the media and elsewhere despite its importance. This important amendment changes the rules of the game with regard to non-registration of offences by police officers. That is why the title of this article reads “Beginning of the end of the non-registration of FIRs“. Before I discuss this new amendment, let me first briefly discuss about the problem of non-registration of FIRs.
[Update: Please also read my subsequent article Non-registration of FIRs – back to square one for further changes in the law on this issue.]
Police stations all over the country are notorious for not registering an FIR (First Information Report) when someone files a complaint about the commission of a cognizable offence. The “burking of crime” is perhaps the most serious grievance that people have against police. Police, all over the country, is incorrigible when it comes to non-registration of FIR on the basis of complaints filed for commission of cognizable offences. This is in spite of the fact that registration of FIR is mandatory whenever any information about commission of a cognizable offence is given to a police station.
Registration of FIR is mandated in Section 154 of the Criminal Procedure Code, 1973, which clearly lays down that:
“Every information relating to the commission of a cognizable 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; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, 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.”
The word used here is “SHALL” which shows the mandatory character of this legal provision. It is pertinent to point out that the “form” referred to in the above legal provision is commonly called “FIR” or “First Information Report”, though there is no such expression used in the law itself.
Thus, this section is unequivocally clear that registration of FIR is a mandatory requirement. There is no “discretion” to refuse registration of a case. However, the general experience has been that on a majority of occasions the police station would simply refuse to register FIR even though the information given would clearly relate to the commission of a cognizable offence. This is, of course, true only when a common man, the aam aadmi, lodges a complaint with a police station. If you happen to be a VIP, or an influential person, or a person who is willing to pay a bribe, or the like, the police station may agree to register the FIR even if the information given does not in fact amount to a cognizable offence, for, the facts can easily be distorted slightly to bring them within the ingredients of a cognizable offence.
A provision similar to the one noticed above in Section 154 of the Criminal Procedure Code, 1973, existed even in the Criminal Procedure Code of 1898 mandating compulsory registration of FIRs (I may point out that the provisions that existed in the previous Criminal Procedure Codes of 1861 and 1872 were slightly different). About 115 years have passed since then. Meanwhile, India became a sovereign democratic state with guaranty of several fundamental rights. We have developed in many sectors. Economy is growing. Literacy levels are increasing. Right to information is regarded as a fundamental right. Citizens’ rights are valued. People are increasingly becoming aware of their rights under the laws. But, the police appears to have not learnt its lessons during these 115 years. It continues to be in the same 19th century mind-frame. Police still believes that in spite of the legal provisions mandating the registration of FIR immediately after lodging of an information described in Section 154 of Criminal Procedure Code, it has the absolute discretion to register or not to register FIR as per its own sweet will. In a country with the “rule of law” being a basic feature of the Constitution, police wants to be a “rule unto itself”, and to not to bother for the mandatory provision of law. Police officers do not want to introspect. In spite of being aware that “burking of crime” is a major problem of policing which is one of the root causes of a poor image of police, the police officers do not want to change. A few rare exceptions notwithstanding.
No amount of judicial intervention has had any effect. There are several decided cases wherein the Supreme Court held that registration of FIR is mandatory under Section 154 of the Criminal Procedure Code. However, nothing has changed on the ground.
For example, in the case of State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335 : AIR 1992 SC 604 : 1992 Cri LJ 527, the Supreme Court held as under:
“At the stage of registration of a crime or a case on the basis of the information disclosing a cognizable offence in compliance with the mandate of Section 154(1) of the Code, the concerned police officer cannot embark upon an enquiry as to whether the information, laid by the informant is reliable and genuine or otherwise and refuse to register a case on the ground that the information is not reliable or credible. On the other hand, the officer in charge of a police station is statutorily obliged to register a case … … .”
The Supreme Court further observed as under:
“Be it noted that in Section 154(1) of the Code, the legislature in its collective wisdom has carefully and cautiously used the expression “ information ” without qualifying the same as in Section 41(1)(a) or (g) of the Code wherein the expressions, “ reasonable complaint ” and “credible information ” are used. Evidently, the non-qualification of the word “information” in Section 154(1) unlike in Section 41(1)(a) and (g) of the Code may be for the reason that the police officer should not refuse to record an information relating to the commission of a cognizable offence and to register a case thereon on the ground that he is not satisfied with the reasonableness or credibility of the information. In other words, ‘reasonableness’ or ‘credibility’ of the said information is not a condition precedent for registration of a case.”
And, after comparing the provision existing in Section 154 of the present Criminal Procedure Code of 1973 with the corresponding provisions in earlier Codes (of 1861, 1872 and 1898), the Supreme Court concluded as under:
“It is, therefore, manifestly clear that if any information disclosing a cognizable offence is laid before an officer in charge of a police station satisfying the requirements of Section 154(1) of the Code, the said police officer has no other option except to enter the substance thereof in the prescribed form, that is to say, to register a case on the basis of such information.”
In the case of Ramesh Kumari v. State (NCT of Delhi), (2006) 2 SCC 677 : AIR 2006 SC 1322 : 2006 Cri LJ 1622, referring to the aforesaid decision in the case of Bhajan Lal, the Supreme Court reiterated that a police officer is required to mandatorily register FIR on a complaint of a cognizable offence by a citizen under Section 154 of the Criminal Procedure Code.
Likewise, in the case of Parkash Singh Badal v. State of Punjab, (2007) 1 SCC 1, the Supreme Court observed as under:
“At the stage of registration of a crime or a case on the basis of the information disclosing a cognizable offence in compliance with the mandate of Section 154(1) of the Code, the police officer concerned cannot embark upon an enquiry as to whether the information laid by the informant is reliable and genuine or otherwise and refuse to register a case on the ground that the information is not reliable or credible. On the other hand, the officer in charge of a police station is statutorily obliged to register a case and then to proceed with the investigation if he has reason to suspect the commission of an offence which he is empowered under Section 156 of the Code to investigate, subject to the proviso to Section 157 thereof.”
It was further held in this case that:
“It is, therefore, manifestly clear that if any information disclosing a cognizable offence is laid before an officer in charge of a police station satisfying the requirements of Section 154(1) of the Code, the said police officer has no other option except to enter the substance thereof in the prescribed form, that is to say, to register a case on the basis of such information.”
Similarly, in the case of Supdt. of Police, CBI v. Tapan Kumar Singh, (2003) 6 SCC 175 : AIR 2003 SC 4140 : 2003 Cri LJ 2322, the Supreme Court held that where the information furnished provides a reason to suspect the commission of an offence, which the police officer concerned is empowered under Section 156 of the Code to investigate, he has no option but to record the information and proceed to investigate the case either himself or depute any other competent officer to conduct the investigation.
In the case of Lallan Chaudhary v. State of Bihar, (2006) 12 SCC 229, the Supreme Court again held that the provision of Section 154 is mandatory and that the police officer concerned is duty-bound to register the case on receiving information disclosing cognizable offence and also that genuineness or credibility of the information is not a condition precedent for registration of a case which can only be considered after registration of the case.
Thus, the mandate of law is very clear. Registration of an FIR is mandatory if the information given to the police discloses the commission of a cognizable offence. Of course, in certain exceptional cases, where there is a doubt whether or not the information so given discloses a cognizable offence, it may perhaps be permissible to conduct a preliminary enquiry first instead of registering the FIR at the first instance [for example, see: Shashikant v. CBI, (2007) 1 SCC 630; also see: P. Sirajuddin v. State of Madras, (1970) 1 SCC 595: AIR 1971 SC 520 : 1971 Cri LJ 523.]; but, even in such cases FIR needs to be registered the moment commission of a cognizable offence is made out in such enquiry. However, wherever the commission of a cognizable offence is disclosed from the facts disclosed in the information given to the police, registration of FIR is mandatory. This should be the rule in almost all cases, barring a few rarest of rare cases.
It is pertinent to mention that certain directions were issued recently by the Supreme Court in the case of Lalita Kumari v. Govt. of U.P., (2008) 7 SCC 164, for compulsory registration of FIRs with a specific threat of contempt of court for failing to do so [also see: Lalita Kumari v. Govt. of U.P., (2011) 11 SCC 331]. This matter was then referred to a larger Bench vide the decision reported in Lalita Kumari v. Govt. of U.P., (2008) 14 SCC 337. Thereafter, a 3-Judge Bench of the Supreme Court heard this matter, and vide decision reported in Lalita Kumari v. State of U.P., (2012) 4 SCC 1, this 3-Judge Bench of the Supreme Court has now referred this matter to be heard by a Constitution Bench of at least 5 Judges. At present, a Constitution Bench of the Supreme Court is yet to hear this issue.
The Game-changer – the new Amendment:
With this background, let me now come back to the amendment that has been made in the latest CRIMINAL LAW (AMENDMENT) ORDINANCE, 2013, that can become a game-changer on the issue of non-registration of FIRs, as I mentioned in the very beginning of this article.
Well, vide Section 3 of the CRIMINAL LAW (AMENDMENT) ORDINANCE, 2013, a new Section 166A has been inserted in the Indian Penal Code, clause (c) of which lays down as under:
“166A. Whoever, being a public servant,––… …… …(c) fails to record any information given to him under sub-section (1) of section 154 of the Code of Criminal Procedure, 1973 and in particular in relation to cognizable offence punishable under section 354, section 354A, section 354B, section 354C, sub-section (2) of section 354D, section 376, section 376A, section 376B, section 376C, section 376D or section 376E,shall be punished with imprisonment for a term which may extend to one year or with fine or with both.”.
On the face of it, this new provision appears to be applicable only for certain offences against women. However, a closer look will reveal that this provision makes punishable the failure to record “any information” given to a public servant under Section 154(1), which relates to registration of FIRs. Of course, it goes on further to mention “and in particular” for certain offences against women. However, the fact remains that this new provision is applicable to “any” non-registration of FIR under Section 154 of Criminal Procedure Code.
So, how this amendment is going to be a game-changer for “burking of crime”? Well, if a police officer fails to register FIR on the basis of an information given to him under Section 154 of the Criminal Procedure Code that discloses commission of a cognizable offence, that police officer himself commits an offence under Section 166A(c) of the IPC!!! Such a police officer can be punished for a term which may extend to one year or with fine or with both.
Section 18 of the aforesaid Ordinance amends the Schedule to the Criminal Procedure Code, 1973, and this newly-created offence under Section 166A has been made non-cognizable and bailable. Thus, one may have to file a private complaint under Section 166A of IPC with the court of the Judicial Magistrate if a police officer does not register FIR even if the information given to him under Section 154 discloses commission of a cognizable offence. So, this may be a bit lengthy procedure and one has to wait and see for some time as to how this provision is used in real life to stop the malpractice of non-registration of FIRs by police. Only the time will tell how successful this new amendment is going to be for dealing with the problem of “burking of crime”. However, a beginning has been made. That is why I have called it only the “Beginning of the end of the non-registration of FIRs”. The fear of punishment of one year imprisonment to the police officer himself, who fails to register the FIR, may perhaps send a strong message to the police. So far, this newly created offence under Section 166A of IPC has gone unnoticed, at least with regard to its application to the wider area of burking of crime for all offences (and not merely for offences against women). My impression is that the police officers are also unaware of the wider application of this new provision to the non-registration of FIRs for “any” cognizable offence, in general, and not merely for offences against women.
So, next time, if you find that officer in charge of a police station (i.e., SHO, or Station House Officer) does not register an FIR on your complaint even though it discloses a cognizable offence, go straight to the court of the Judicial Magistrate and lodge a complaint under Section 166A of IPC against that police officer himself!!!
may I share a shorter, edited version of this post on my own blog? (http://priyavksingh.blogspot.in/)
may I share a shorter, edited version of this post on my own blog? (http://priyavksingh.blogspot.in/)