Bar and Bails

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  • What to do if Police Refuse to Register an FIR in India?

    What to do if Police Refuse to Register an FIR in India?

    Table of Contents

    Introduction

    If the police refuse to register an FIR despite a complaint disclosing a cognizable offence, the complainant is not left without a remedy. The Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) provides a procedure for escalating the complaint to senior police authorities and, if necessary, approaching the Magistrate.

    Registration of an FIR sets the criminal investigation process in motion and empowers the police to investigate a cognizable offence in accordance with law. This article explains what an FIR is, when the police are required to register one, and the remedies available when the police refuse to register an FIR.

    What is an FIR ?

    Although FIR (First Information Report) is not explicitly defined under the Cr.P.C or the newly introduced BNSS in general parlance and from Section 175 (erstwhile Section 154 of the Cr.P.C) it can be said that an FIR is the report prepared by the officer in charge of the police station with regard to a cognizable offence. The said information is reduced to writing by such an officer in charge of the police station. FIR is only registered when the allegation reveals commission of a cognizable offence.

    Why is an FIR Important ?

    Registration of an FIR sets the police machinery in motion and is a crucial first peace of information/record. As a rule of thumb, an FIR is registered in cases which are more serious in nature and affect the society at large. Registration of an FIR grants wide powers to the police authorities such as search, seizure, arrest etc. One of the most important effects of registration of an FIR is the possibility of arrest. Oftentimes this fear is actualized in cases in which the accused does not secure anticipatory bail. FIR also serves as an important peace of paper at the time of granting bail to accused, as it is it is the primary document using which the judge examines the gravity and severity of the offence and, in many cases the gravity of the allegations is sufficient to deny bail to the accused.

    Why do Police refuse to register an FIR ?

    Although there might be plenty of reasons depending upon the facts of each case for the police authorities to refuse registration of FIR, below is an illustrative list of  some of the common reasons why police officers refuse registration of FIR.

    • Allegations do not reveal a cognizable offence.

    For an FIR to be registered, it is necessary that the allegations reveal a cognizable offence. If no cognizable offence is revealed by the said allegations, the Police may refuse to register FIR and may in most cases for the satisfaction of the complainant register an NC (Non Cognizable Report) which is registered when the allegations reveal a crime which is “Non-Cognizable” in nature. 

    • Allegations made are of Civil Nature.

    In many cases, in order to influence the opposite party the complainant uses the criminal justice system as a pressure tactic. The offences which are mostly invoked in such cases include 420 (cheating), 406 criminal breach of trust, 468 forgery, etc. The foregoing offences are used to give a criminal tint to a civil wrong. Many courts are cautious and hence in such cases the investigation agencies and their powers are often used to create pressure upon the Accused.

    • Lack of Jurisdiction

    So far as the jurisdiction is concerned, the same has to be evaluated on the basis of the area in which the offence is committed. Under the Cr.P.C (erstwhile BNSS) jurisdiction is defined as the ability of a court to try and offence. When the alleged offence has occurred beyond the territorial jurisdiction of the police station, registration of an FIR may be refused.

    What to do if police refuse to register an FIR ?

    If a complainant still seeks to register and FIR and believes that the offence committed by the alleged accused is cognizable in nature he may proceed to escalate the said matter to the DCP/Superintendent of Police of that particular Zone who may, after considering the allegations either direct the police station to register an FIR or still refuse registration of the said FIR. However, before filing a complaint before a DCP the complainant must first file a written complaint to the said police station and thereafter proceed before the DCP. Having an acknowledgement of the written complaint made to the police station is vital as the same would be important at the subsequent stage where the complaint is to be escalated to the DCP.

    What to do if the Police Station Refuses to Accept the Written Complaint?

    The dispatch department manages the receipt of complaints and information in written form. The sole work of the said department is to manage the receipt of the information thereafter to give acknowledgement on the said information. In many cases even when the Dispatch Department where the written complaint is received and acknowledged; no subsequent action is initiated. On such refusal it is always better to send the written complaint by post to the said police station. The delivery report of such a written complaint via India Post would be vital for proving the delivery of the said complaint. Once the delivery is proved the same is sufficient to prove a formal complaint to the respective police station.

    Importance of Filing a written complaint

    A written complaint on which the acknowledgment (receipt) of the police station is obtained goes a long way in proving the fact that the complainant has exhausted his alternative remedies and has no other option but to escalate the matter. A common objection raised by the Magistrates Court at the time of filing a 175(3) of the BNSS (erstwhile section 156 (3) of the Cr.P.C) complaint, is whether the complainant has previously approached the police station and the superintendent of police. An acknowledged copy of the written complaint goes a long way in proving the foregoing fact and is an important exhibit in an application under Section 175(3) of BNSS.

    Landmark Judgments

    Lalita Kumari v. Government of Uttar Pradesh, (2014) 2 SCC 1

    As per this landmark judgment the Supreme Court has repeatedly reiterated that where the information clearly discloses a cognizable offence, registration of an FIR is ordinarily mandatory. The Court has recognized limited circumstances where a preliminary inquiry may be permissible.

    Mrs. Priyanka Srivastava & Others v. State of U.P. SC. 2015 

    In the said case the Apex court while expressing its concern towards the large number of frivolous applications for registration of FIR, had laid down that every application under the said section has to be supported by an affidavit duly sworn by the Applicant. The foregoing procedure was laid down by the supreme court to clamp down upon the growing number of frivolous applications under section 156 (3).

    Dilawar Singh v. State of Delhi 2007 12 SCC Cri. 330 

    In the said judgment the Apex court has stated that the magistrate can order investigation under the said section, while doing so he need not examine the complainant on oath because at this stage he is not taking cognizance of the said offence.

    Conclusion

    Registration of an FIR is crucial for setting the wheels of criminal justice in motion. When the police refuse to register and FIR, the investigation is never set in motion, and therefore all subsequent procedures, like investigation, Trial, conviction is never manifested. It also has serious consequences for the alleged offender, and as such, there are chances that the said process may be abused by complainants in order to settle their personal scores. However cases such as Mrs. Priyanka Srivastava & Others Vs. State of U.P. SC. 2015 have introduced checks and balances which ensure that the investigation agencies are not needlessly taken for a ride by parties. As complainant, it is very important to exhaust all prior remedies available to the complainant, and while doing so, create a paper trail disclosing essential ingredients of the offence, which is crucial for sustaining an application filed under section 175(3) of the BNSS.

  • Comprehensive guide to bail in India.

    Table of Contents

    What is bail?

    Although bail is not defined under the Cr.p.c law lexicon defines Bail as “security for appearance of the accused person on giving which he is released pending trial and investigation”. Black law’s dictionary defines as “to procure the release of a person from legal custody, by undertaking that he shall appear at the time and place designated and submit himself to the jurisdiction and judgement of the court” 

    In other words Bail is the conditional release of a person during the pendency of his trial upon satisfaction of certain conditions imposed upon him by the court granting bail. India follows an acquisitorial process of justice whereby a person accused of an offence is innocent until proven guilty, hence it is only after the trial is concluded, that the person is said to be a convicted for his crimes and undergoes the punishment prescribed under the law. Hence the main purpose of bail is to prevent the pretrial punishment of the Accused. Bail also aims at securing the presence of the accused before the court by imposing necessary conditions on him. 

    Bail is one of the most crucial steps of a criminal justice system as it ensures that the accused who is yet to be proven guilty is not kept behind bars indefinitely or till the time the trial concludes, as the time lost behind bars cannot be brought back. Furthermore the continued detention has a negative effect not only on him but also the members of his family.What also needs to be understood is that when a person who is an accused in a serious crime is released on bail, it may lead to serious consequences as such a person may tamŚper with the evidence, pressure witnesses or abscond from the clutches of law. Hence the court while granting bail entails balancing the liberties of the accused with the interest of the society and the victim.

    What are bailable and non bailable offences?

    Bailable offences under BNSS, 2023 defines bailable offences as offences which is made bailable in the first schedule, or which is made bailable by by any other law; and non-bailable offence means any other offence. Hence from the foregoing definition it is clear that no qualitative distinction has been made between the two kinds of offence. However it can safely be stated that serious offences are considered Non Bailable in nature whereas all other offences are Bailable.

    In Bailable offences the Accused who has been arrested and detained without a warrant has rights to be released on bail upon him furnishing sufficient bonds to the court.

    Contrary to what the name suggest, in Non Bailable offences there is no carte blanche embargo on the courts power to  grant bail to such an accused; his release is subject to the discretion of the court concerned.

    What are the different kinds of bails?

    Anticipatory Bail

    Anticipatory bail is bail granted to an accused who is apprehending arrest in connection with a non bailable offence. Arrest is a significant adverse step taken by the authorities against the accused. Arrest of an accused not only has serious implications upon the livelihood, reputation and goodwill of the accused person and his family. Anticipatory bail serves as a protective remedy intended to safeguard the liberty of an individual against unnecessary arrest. Such a remedy is commonly sought when a person becomes aware that a non-bailable offence has been registered against him.  

    Regular Bail

    Regular Bail is granted to an accused after his arrest and detention. It enables an accused to be released from custody upon him complying with the conditions imposed by the court. The process of trial is a lengthy one and may take years to come to an end, hence in such a situation granting bail to the accused prevents pre-trial incarceration. There are various factors which the court considers while granting regular bail and the gravity of the offence is only one of those factors. 

    Default Bail

    Default bail is granted to an accused when the investigation with regards to offences alleged against him is not complete within a stipulated time period. The time period stipulated with regards to offences In offences involving imprisonment for 3 years the investigation has to be completed within 60 days whereas in offenses punishable with imprisonment for a period more than 7 years the investigation has to be completed within 90 days. Failure on part of the investigation agencies to complete the investigation within stipulated time give the Accused a right to be released on default bail.

    Interim Bail

    Interim Bail is a kind of temporary bail granted to the accused on humanitarian consideration. It is not a complete release from custody. Interim bail is granted in cases where the accused has to attend some personal function like the funeral, wedding etc. 

    Transit Bail

    Transit Bail is a bail granted to a person who apprehend arrest at the hands of police of another state. After obtaining the said bail the accused person can freely travel to the state where the said offence against him is registered.

    How to obtain a Bail?

    Before the question of obtaining bail is considered one has to analyse the sections under which the allegations against him are made. Thereafter based upon the circumstances of the accused the accused may opt for one of the following courses.

    1. If the offence alleged against him is bailable in nature he may obtain bail by furnishing security to the police or to the court. 
    2. If the person is accused of a non-bailable offence and anticipates imminent arrest he may, in order to avoid arrest, approach the competent court seeking anticipatory bail. 
    3. If the said accused is arrested by the police with or without a warrant in connection with a non bailable offence the accused may file a regular bail application before the concerned court. 
    4. If a non-bailable offence is registered against the accused in another State or district and the accused apprehends arrest while travelling to the concerned jurisdiction, he may approach the court having jurisdiction over him seeking transit bail or transit anticipatory bail. 

    (Note: The remedies discussed above are illustrative in nature and the maintainability of a particular remedy depends upon the facts of each case).

    What are the Conditions normally imposed by the Court?

    The court in most cases imposes a combination of conditions, with the aim of ensuring the presence of the Applicant/Accused before the court. Some of the conditions are as follow.

    1. Furnishing of cash security.
    2. Furnishing of one of more Solvent sureties of a particular amount.
    3. Personal Recognizance bond.
    4. Travel restriction (including surrender of passport).
    5. Regular attendance at the police station on a day designated by the court.
    6. Condition restricting any direct or indirect influence upon the victim or witness.
    7. Condition restricting any attempts to tamper evidence.

    The foregoing list is not an exhaustive one, the court may impose additional conditions while considering the facts of each case individually.

    What happens when the conditions imposed in the bail order are violated?

    Violation of the conditions imposed by the court would warrant cancellation of the bail along with forfeiture of the cash security. Violation of the conditions imposed results in the curtailment of the liberties granted by the court in the bail order. Hence if an Accused wants to avail of a free life while awaiting trial he must comply with every single condition imposed by the court on him. An application for cancellation of bail can be made by the victim through a private lawyer or through the public prosecutor.

    Can the bail conditions be relaxed ?

    Yes, The Applicant/ Accused can make an application for relaxation of the conditions. The usual procedure involves making an application praying for the relaxation of the bail condition imposed by the court. The said application is determined by the court after considering the arguments of the Accused and the prosecution. 

    Conclusion

    Bail serves an important role in prevneting the pre-trial incarceration of person accused of an offence. However getting one is easier said than done. Large back logs in criminal courts including the High court does really help in getting a speedy bail. Many criminal court also take a superifical approach when it comes to granting bail to indivuduals in serious offences. In India where majority of the prisoners are under trial prisoners bail is very important so as to ensure that these indivduals do not suffer more than they ought to.