Joginder Singh Toor

“JUSTICE is the first virtue of social institutions, as truth is of systems of thought. A theory however elegant and economical must be rejected or revised if it is untrue; likewise laws and institutions no matter how efficient and well-arranged must be reformed or abolished if they are unjust.” says John Rawls, a jurist who held field of Juris prudence for about two decades. Laws are made either by the legislatures by legislative process or by Judges by precedents. Both are effective and enforceable containing rigours.

The judgment of the Supreme Court of India in Sakiri Vasu Versus State of U.P. may be one such judgment which according to the concept espoused by John Rawls may have to be revised or rejected, may be propounded by an institution, highest in judicial hierarchy; and infallible because of finality but not fallibility in theory.

The judgment says “if a person has grievance that his F.I.R has not been registered by the Police, his first remedy is to approach Superintendent of Police under Section 154(3) Cr.P.C, or other Police Officer referred to in Section 36 Cr.P.C. If despite approaching the Superintendent of Police or the officer referred to in Section 36 Cr.P.C his grievance still persists, then he can approach a Magistrate u/s 156(3) instead of rushing to the High Court by way of writ petition or a petition u/s 482 Cr.P.C. Moreover, he has a further remedy of filing a criminal complaint u/s 200 Cr.P.C. Why then writ petitions or Section 482 Cr.P.C petitions be entertained when there are so many alternative remedies.”

To appreciate, one has to go to the background of the criminal procedure for investigation and bring to justice the culprits. The Code of Criminal Procedure came into being in 1882 prior to which there was no uniform law in India for regulating the procedure to be adopted by the investigating agencies and the Courts. There were, however, separate Acts for Presidency Towns and Provinces. For the first time, a uniform criminal law was introduced in 1882 which was amended from time to time till it’s overall reorientation in 1973 by a revised Code.

The offences, as defined in the Indian Penal Code and other criminal Acts are classified into cognizable and non-cognizable offences. In the case of non-cognizable offence, the police is not supposed to interfere but the complainant is directed to approach the court directly by way of criminal complaint, pursue the case himself, collect his own evidence; produce the same in court at his own and bear the entire burden on himself.

Cognizable offences are graver offences which are, by and large, offences against the State. Some of them have been identified as those which can be compromised or compounded at the instance of the parties, and some, even if compromised the permission of the court has to be taken. Rests are not compoundable even if the parties so wish because the same are offences against the State and the society.

A cognizable offence, if committed, has to be reported to the police and the police is required under section 154 Cr.P.C, if information is given, to reduce to writing and be read over to the informant and to have it signed from him and to enter the same in a book to be kept by such officer in such form as the State Government may prescribe. It is known as F.I.R. (First Information Report).

There was general complaint that police does not record F.I.R, even if reported and if they so record some, some time the version given by the complainant is not truly recorded. Two steps were taken by introducing two more clauses to Section 154. Sub-Clause (2) was added, requiring the police officer to provide the copy of the F.I.R. to the informant free of cost there and then.

The other aspect was taken care of by introducing sub-clause (3) in Section 154 providing that any person aggrieved of refusal by the S.H.O. to record F.I.R., the complainant may send the substances of such information, in writing and by post, to the Superintendent of Police concerned, who if satisfied that such information discloses the commission of a cognizable offence shall either investigate the offence himself or direct an investigation to be made by any police officer subordinate to him in the manner provided by this Court.

The cardinal question remains that in spite of amendment in the law and addition of sub-clause (3) in Section 154 Cr.P.C, the vice of refusal to record F.I.R. still persists, what is the course of action for the aggrieved party.

One is that the complainant can file a criminal complaint, even in the case of cognizable offence, in the court of Judicial Magistrate, secondly, he can file a complaint directly in the court with an application u/s 156(3) with a request that the case be sent to the police for investigation because it discloses a cognizable offence and the Magistrate, after examining complaint may send the same to the police, with a direction to register the case and investigate the matter. Even there is no direction to register the case, the case is sent for investigation, the police has no option but to register a case because the F.I.R. is to precede the investigation. It has been so held by the Hon’ble Supreme Court of India in earlier cases.

Another alternative is to approach the High Court u/s 482 Cr.P.C invoking inherent powers of the High Court, for a direction that the police officers having failed to perform their duty to register F.I.R, even after being informed and even after the Superintendent of Police having been approached in writing, by registered post, the direction for registration of the case be given and the police officer be brought to book. The High Courts have, in number of cases, been issuing directions. Still another remedy exists under the Constitution of India in Article 226, which vest the High Courts to issue prerogative writs in the nature mentioned therein including the writ of mandamus, for issuing directions where the authorities have failed to exercise jurisdiction.

The judgment in Sakiri Vasu’s case mentioned above, tentamounts to shutting the doors of the High Court u/s 482 Cr.P.C and Article 226 of the Constitution of India and directs the parties to approach the Judicial Magistrate by way of complaint either u/s 200 or 156(3) Cr.P.C.

The filing of the complaint, involves the physical presence of the complainant in court on every date of hearing unless exempted and bearing the burden of collecting evidence and producing the same. Even for directions u/s 156(3) the physical presence for presenting the complaint and following the same is necessary. It is a cumbersome procedure. It may be undertaken by the person living in and around the jurisdiction of the Court but it is practically impossible for the person living abroad who faces various offences having been committed with regard to their properties including forgery of documents. Seeking direction from the Court u/s 156(3) or filing complaint u/s 200, by all those who are not able to follow the procedure or pursue the same, just because of the failure of the police to discharge their duties, u/s 154, should not deprive the people of their rights and rather burden them with an obligation which was to be taken care of by the State. The judgment would prove to be a premium to the inefficiency, abuse and arbitrariness by the law administering agencies.

[Joginder Singh Toor, Advocate, Punjab and Haryana High Court, jogindersingh_toor@yahoo.com Mobile 91-98151-33530]

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