SC directive on non-registration of FIRs

The following is a guest post from Vijay Nair, one of the Founder-Partners of KNM & Partners, Law Offices who has been in litigation practice for the last 14 years. He may be contacted at vijaynair.advocate [at] gmail [dot] com

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A crtical analysis of Order dated 14.07.2008 of the Supreme Court of India passed in Writ Petition (Criminal) 68 of 2008 titled “Lalita Kumari –versus- Government of Uttar Pradesh and others”.

In its Order dated 14.07.2008, the Supreme Court has, inter-alia, made the following directions:

..............In view of the above, we feel that it is high time to give directions to Governments of all the States and Union Territories besides their Director Generals of Police/Commissioners of Police as the case may be to the effect that if steps are not taken for registration of F.I.Rs immediately and copies thereof are not made over to the complainants, they may move the concerned Magistrates by filing complaint petitions to give direction to the police to register case immediately upon receipt/production of copy of the orders and make over copy of the F.I.Rs to the complainants, within twenty four hours of receipt/production of copy of such orders. It may further give direction to take immediate steps for apprehending the accused persons and recovery of kidnapped/abducted persons and properties which were subject matter of theft or dacoity. In case F.I.Rs are not registered within the aforementioned time, and/or aforementioned steps are not taken by the police, the concerned Magistrate would be justified in initiating contempt proceeding against such delinquent officers and punish them for violation of its orders if no sufficient cause is shown and awarding stringent punishment like sentence of imprisonment against them inasmuch as the Disciplinary Authority would be quite justified in initiating departmental proceeding and suspending them in contemplation of the same.....”

(emphasis supplied)
The Court has further directed that the aforesaid directions be placed on its website so as to educate the general public.

There is a school of thought which delves upon the aforesaid directions issued to say that the Supreme Court has now made it mandatory for every complaint presented to a Police Officer to be registered as a First Information Report, failing which it has been directed in the order that the concerned Police Officer shall be liable to be punished for Contempt of Court by the Magistrates and for Departmental Proceedings. This, according to them would increase instances of registration of frivolous First Information Reports by Police Officers afraid of prospective action against them by the Complainants.

In all my humility, I wish to differ from the aforesaid school of thought.
The Supreme Court has by passing the aforesaid direction, merely set down, in black and white, the existing procedure under Section 156 (3) of the Code of Criminal Procedure, 1973 and has not ventured beyond the existing law.

A plain reading of the direction would reveal that the Supreme Court has set down a step wise procedure: -

(a) if steps are not taken for registration of F.I.Rs immediately and copies thereof are not made over to the complainants, they may move the concerned Magistrates by filing complaint petitions.

(b) The Magistrate may give direction to the police to register case immediately upon receipt/production of copy of the orders and make over copy of the F.I.Rs to the complainants, within twenty four hours of receipt/production of copy of such orders.

(c) In case F.I.Rs are not registered within the aforementioned time, and/or aforementioned steps are not taken by the police, the concerned Magistrate would be justified in initiating contempt proceeding against such delinquent officers; and

(d) punish them for violation of its orders if no sufficient cause is shown and awarding stringent punishment like sentence of imprisonment against them.

(e) The Disciplinary Authority would be quite justified in initiating departmental proceeding and suspending them in contemplation of the same.”

From the above, it may be seen that the directions issued by the Supreme Court above operates in different spheres.

Supreme Court cannot usurp or upstage the power of a Magistrate under Section 156 (3) of the Code of Criminal Procedure, 1973. The Supreme Court and the High Courts have similar powers as under 156 (3) of the Code of Criminal Procedure, 1973 under Article 32 and Article 226 respectively.

The apparent dichotomy of the school of thought mentioned before is evident from the very fact as to how “contempt” is defined under the Contempt of Courts Act, 1971.

By not registering a First Information Report in the first instance, the Police Officer is neither in wilful disobedience to any judgement, decree, direction, order, writ or other process of a court or wilful breach of an undertaking given to a court, nor has the Police officer by publication (whether by words, spoken or written, or by signs, or by visible representation, or otherwise) of any matter or the doing of any other act scandalized or tend to scandalize, or lower or tend to lower the authority of, any court, or prejudiced, or interfered or tend to interfere with the due course of any judicial proceeding , or Interfered or tend to interfere with, or obstruct or tend to obstruct, the administration of justice in any other manner.

Therefore, for initiating contempt, first there has to be a “Judicial Order”, which can come only after the Complainant gets an Order under Section 156 (3) of the Code of Criminal Procedure, 1973 from the concerned Magistrate directing the Police Officer to “register” a First Information Report and the Police Officer is in wilful disobedience of such Order/direction.

Even thereafter as also stated in the directions dated 14.07.2008, the Police Officer is entitled to show-cause and there can be no automatic provision for arrest or imprisonment.

By not registering a First Information Report in the first instance, the Police Officer is merely exercising the power available with him in Section 157 of the Code of Criminal Procedure, 1973.

In M.C. Abraham and Anr. v. State of Maharashtra and Ors.[2003 (2) SCC 649] the Supreme Court has held as under: -

“The principle, therefore, is well settled that it is for the investigating agency to submit a report to the Magistrate after full and complete investigation. The Investigating agency may submit a report finding the allegations substantiated. It is also open to the investigating agency to submit a report finding no material to support the allegations made in the first information report. It is open to the Magistrate concerned to accept the report or to order further enquiry. But what is clear is that the Magistrate cannot direct the investigating agency to submit a report that is in accord with his views. Even in a case where a report is submitted by the investigating agency finding that no case is made out for prosecution, it is open to the Magistrate to disagree with the report and to take cognizance, but what he cannot do is to direct the investigating agency to submit a report to the effect that the allegations have been supported by the material collected during the course of investigation.”

The aforesaid view has been followed consistently by the Supreme Court, ending with Divine Retreat Centre –versus- State of Kerala [2008 (3) SCC 542]

As regards initiation of Departmental Enquiry is concerned, the same has to be initiated strictly in terms of the rules and law governing the employment of the concerned Police Officer.

In my honest opinion, the directions passed on 14.07.2008 would only affect, if at all, unscrupulous Police Officers who refuse to register genuine complaints and cannot in any manner affect those Police Officers who exercise sound discretion available to them under Section 157 and refuse to register a First Information Report on frivolous complaints.