What are Best Practices for Filing a Police Complaint?
- Issue No. 1 - Who can file a complaint?
- Issue No. 2 - Decoding Section 2(d) of the CrPC
- Issue No. 3 - Whether the police must conduct a preliminary investigation into the complaint received to ascertain the truthfulness of the accusation?
- Issue No. 4 - Understanding “General Diary,” “FIR Register” and “Case Diary”
- Issue No. 5 - First Information Report
- Issue No. 6 - Counter-Complaints
- Issue No. 7 - Refusal
- Issue No. 8 - Omissions and Their Consequences
The experience of filing a police complaint is both unique and ordinary, as we witness in it an intersection of power, arrogance, prejudice and ignorance. The Criminal Procedure Code (CrPC) of 1973, which governs criminal proceedings, foresees that intersection. Section 154 (3)[i], for example, acknowledges the possibility of the police refusing to formally register a complaint as well as recommends a process of escalation to higher authorities as a solution. The process, therefore, calls for perseverance.
Section 154 (3) reads as follows:
Any person aggrieved by a refusal on the part of an officer in charge of a police station to record the information referred to in subsection (1) may send the substance 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 case himself or direct an investigation to be made by any police officer subordinate to him, in the manner provided by this Code, and such officer shall have all the powers of an officer in charge of the police station in relation to that offence.
The two aspects – seeking to file a complaint and the escalation – as well as perseverance thus become a necessary part of the process.
Filing of a complaint is a highly significant part of legal recourse, as it’s a document that contains a powerhouse of information relating to an offence. It’s the information that harnesses the potential of the CrPC and sets the criminal law in motion either as a First Information Report (FIR) or as a Non-Cognizable Report (NCR).
India’s criminal justice system is governed by three major laws – (1) the Indian Penal Code of 1860, which lists the offences and is called as the substantive law; (2) the CrPC as the law relating to the procedure; and (3) the Indian Evidence Act of 1872, which covers proof, admissibility and rules of evidence.
The word “complaint” is defined in Section 2(d) of the CrPC, but a plain reading of it would not reflect the complexities involved in how it plays out on the ground.
Let’s closely examine those complexities and look at the issues involved in light of relevant judgments to help us learn some best practices in filing complaints.
Issue No. 1 - Who can file a complaint?
Who can file a complaint? Can a person who has no connection to the issue also file a complaint?
Two provisions of the CrPC that are relevant to us are Section 154, which relates to the FIR, and Section 190 relating to cognizance. The words used to describe the person filing a complaint are “information relating to or information received,” as opposed to terms like injured or an aggrieved person. This shows the overt distinction that, in ordinary circumstances, the complaints are only filed at the instance of a person who has suffered a personal harm or injury, as it is his/her right. That is legally called “locus standi.”[ii]
However, in criminal law, the application of locus standi is not limited. It includes that any person who has knowledge about the occurrence or commission of the offence can file a complaint. Courts have approved that locus standi is foreign/alien to criminal law[iii].
So, anyone can file a complaint to set the criminal law in motion, except when there is an express law or act or statute stating the contrary. But as of now, there is no such law[iv]. Also, criminal law follows the principle that an act of commission or omission is an offence not only in relation to the person who suffers harm or injury, but it is considered as an offence against the whole society[v]. Therefore, it makes it the duty of the State to punish the person committing such an act. This also strengthens the idea of making locus standi expansive.
So, here are some important points to remember:
- Anyone can file a complaint;[vi]
- The concept of locus standi – that only an injured or aggrieved person must file a complaint – is not applicable to criminal law;[vii]
- The underlying principle is that a criminal act or omission is not just against an individual but against the whole society[viii]
- The State has a duty to punish the person committing the criminal act or omission[ix].
Issue No. 2 - Decoding Section 2(d) of the CrPC
According to Section 2(d), a “‘complaint’ means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this code, that some person, whether known or unknown, has committed an offence, but does not include a police report. Explanation — A report made by a police officer in a case which discloses, after investigation, the commission of a non-cognizable offence shall be deemed to be a complaint; and the police officer by whom such report is made shall be deemed to be the complainant.”
It does provide a legal overview, but there is a need to decode it if we want to understand the section better. There are dilemmas relating to how a complaint should be given, what should be said for it to become a complaint, how much of information is sufficient, if there is a format to follow, can it be written in a language one knows or can it be narrated to a person/police to write it down, and what precautions must be exercised to ensure that what is reported is not lost in transcription.
So, here’s what should be done:
Orally or in writing
The law permits for a complaint to be given orally or in writing[x].
There is no specific format to be followed to write a complaint[xi].
The complaint must be short, precise and to the point.
If a complaint is recorded by the police or another individual but is written by somebody else, then it is important to verify the information jotted down before signing it. Section 154 of CrPC mandates that the contents of a complaint, if written by oneself or through another person under one’s direction, must be read over. And if there is a variation or something is not written down properly to one’s subjective satisfaction, then rectification can be sought in a soft tone.
Known or unknown has committed an offence
An offence, here, is the incident or the allegation being made with regard to something that has made someone feel aggrieved and for which criminal action is being sought from the police. At the time of filing of the complaint, it will be considered an allegation. But it’s the heart and soul of the complaint as it determines the next course of action to be taken by the police. The offence committed or the allegation being made and how it is described will become the determining factors in a complaint. So, even the language used plays an extremely important role in a complaint. A good complaint is one which uses a language which is simpler, holistic and gives an accurate account of the way the whole incident has occurred. The way the case is made out and the way the police are supposed to investigate is primarily dependent upon the nature of the offence committed.
The description of the offence/allegation should state all that is known, which could include particulars such as the name, the date, the time and the place of the occurrence and so on[xii].
The statement to describe the offence or the incident should, if possible, be restricted to that particular incident. Unnecessary references to other related things or to some events in the past must consciously be avoided as that may make the complaint less effective – unless that extra information may add value to the complaint. So, caution is needed here.
It is advisable that the incident be narrated truthfully without exaggeration. And if there are any documents to substantiate the claims being made in the complaint, then the same could be annexed with the complaint – although that is not mandatory. It is important to keep in mind that the written complaint is close to the reality which can be subsequently corroborated by credible and independent evidence[xiii].
If one is not sure about the date, the time or the exact location, then expressions such as “about or around or near or close to” may be used to add value to the complaint.
If one has not witnessed the incident but seen only the consequence thereof – for example, bleeding on the head without knowing who assaulted the person – then the description of the consequence and any information about who has committed it or any description of the perpetrators that can be gathered from the victim, is sufficient to give a complaint[xiv].
It is important to ascertain whether the offence/allegation being reported is cognizable or non-cognizable. In Schedule II in the CrPC, a table lists the offences and categorised them as cognizable or non-cognizable.
The presence of mind is required to capture a holistic description of the offence in the complaint which covers all aspects like how it happened, when it happened, who did what, how it hurt, if there was any excruciating pain or bleeding, if any weapon was used or if it was a lot of physical force through hands and legs, if there was a swelling or burn marks, what exact abusive words were used, the description of things broken or damaged, and so on.
Made to a magistrate
The word “complaint” is defined in the context of making a private complaint to the magistrate under Section 200[xv] of the CrPC. However, in essence, it carries with it the understanding that its information relating to an offence is to be bought to the notice of a higher authority. So, a complaint must be addressed to the Station House Officer, or an Inspector, or a Sub-Inspector of Police. In cases of escalation, the complaint gets addressed to the Commissioner of Police, the Superintendent of Police and the Inspector General of Police. When a private complaint is filed, then it is addressed to the magistrate.
Object is requesting to take action
The intent at the time of writing a complaint must be expressly said in the form of a request that action be taken[xvi]. If someone is clear about the desired action to be taken – for example, “please call them and mediate,” or “please call and warn them,” or “please tell them to not disturb,” or “please file an FIR and take suitable action,” or “please register the complaint,” or “just bringing it to your notice.”
Issue No. 3 - Whether the police must conduct a preliminary investigation into the complaint received to ascertain the truthfulness of the accusation?
The response trajectory about what a police officer must do when he/she receives a complaint has been diverse, resulting in confusion and ambiguity. The police will try to identify the information to ascertain if it is relating to a cognizable office or non-cognizable offence. Section 2(c) of CrPC says that cognizable offences are those in which the police can arrest a person without a warrant. And Section 2(l) states that in a non-cognizable offence, the police can arrest a person only after they have obtained permission from the magistrate to arrest.
It is also seen that at the time of the filing of a complaint, police question the genuineness of the complainant or the contents of the complaint. They even go to the extent of defending the merits of the accused. Police could also ask for proof in the name of ascertaining the truthfulness of the complaint. And as a result, there is a delay. Complainants, therefore, often get stressed or disheartened, or conclude that filing a complaint is a major struggle and, in the end, just give up.
So, here are some things to remember:
- If the complaint is relating to an offence which is cognizable, then the police must, without delay, register the complaint and lodge an FIR;[xvii]
- The police should not conduct any preliminary investigation into a complaint to ascertain the genuineness of the complaint;[xviii]
- Section 154 of the CrPC uses the word “shall” and so there is no ambiguity about the role of the police;[xix]
- The police, only after they have registered an FIR, can investigate the offence.[xx]
Issue No. 4 - Understanding “General Diary,” “FIR Register” and “Case Diary”
Another challenge faced by people going to file a complaint is police tell them that they will enter the information/allegation in the General Diary/Station Diary/Daily Diary, and then conduct a preliminary enquiry to decide whether an FIR could be registered. The courts have frowned[xxi] upon this practise and have said that this does not come within the ambit of Section 154 of the CrPC, which does not include the term “diary.”
So, the police maintain dairies/books and the following explains their relevance:
FIR Book: The FIR book is a register and it consists of 200 pages. Every FIR registered will find a corresponding entry in this book[xxii]. A copy of each FIR is sent to the Judicial Magistrate having jurisdiction. The FIR book has a unique number reference on an annual basis. The reference to this book is found in section 154 of the CrPC[xxiii].
General Diary: The general diary is a register in which police enter the gist of the FIR and the basic facts if an FIR is registered, as mandated in Section 44 of the Police Act of 1861[xxiv]. This diary also carries details pertaining to all the transactions that occur in a police station over a day such as when the officers arrive, when they depart, who took charge and when and when they were relieved, the duties of each officer, and every such detail in a chronological manner. The copy of this diary is sent to the Superior Police Officer. The general diary is also called as a “station diary” or “station house register”[xxv].
Case Diary: As police carry out their investigation, they are required to maintain a diary in which they enter all information relating to the investigation on a day to day basis. It contains all such information such as when he/she received information relating to the offence, at what time the investigation started and when it ended, the different steps taken by the officer, the names of places visited by the officer, names of the people s/he met with and details of the meeting if any statement is recorded, and a statement on how the investigation is going. The said dairy is referenced and neatly paginated and the police are at liberty to use them to aid their memory in court and if they choose to do so. The accused also get the right to summon these entries to challenge them in the court[xxvi].
Issue No. 5 - First Information Report
Based on a complaint given, the police go through the content of the complaint and see if the allegations refer to a cognizable offence. If it is so, they would immediately proceed to register the FIR under Section 154 of CrPC[xxvii]. The FIR cannot be construed as a complaint. The primary objective is to set the law in motion, and the investigation process also starts[xxviii]. However, at the stage of evidence, the court does not consider the FIR as a substantive piece of evidence[xxix]. Though this can be used to corroborate or contradict or even discredit a witness[xxx].
Issue No. 6 - Counter-Complaints
There are occasions when both the parties involved in a fight go to the police station to register a complaint and police sometimes only register one complaint and refuse to lodge the other complaint. The idea of a counter-complaint is that even though the incident upon which the complaint is premised is the same – in terms of the time and the place of occurrence, and even the parties involved – both the parties have an option to give a complaint describing their rival versions of what took place. As per the CrPC, when a complaint is given against an accused and the investigation has commenced, then the same complainant is barred from giving another complaint under Section 162 of CrPC[xxxi]. But if there are rival contentions about the same episode. And in that case, each contention would take the form of a separate FIR allowing simultaneous and parallel investigations to take place[xxxii].
Issue No. 7 - Refusal
This is a possibility that many may have encountered as they attempted to register a complaint and have an FIR registered. Section 154 (3) of the CrPC[xxxiii] recommends a process of escalation to the higher authorities, such as the Superintendent of Police and others who have supervisory jurisdiction over the concerned police station. In some situations, the police may refuse to register the complaint, and in such circumstances, an acknowledgement[xxxiv] should be obtained from the concerned police station that they are in receipt of such information. The same then may be annexed to the complaint as a private complaint under Section 200 of the CrPC, can be made to the magistrate. A direction can be sought from the magistrate to register an FIR or investigate under Section 156(3) of the CrPC. If there is no document to show that an attempt was made by the complainant to register the case at the police station, then there is a high possibility for the magistrate to refuse to give a direction under Section 156 of the CrPC.
Issue No. 8 - Omissions and Their Consequences
There are several challenges before a complainant at the time filing a complaint. There may be times when we forget to mention the facts that matter, fail to mention the names of the people involved in the incident, description of the wound or injury sustained, description of the weapons used and sometimes even fail to mention certain important material details relating to the assault itself. The courts have approached these issues by taking into consideration the physical and mental condition of the complainant and have given certain broad findings as follows:
- The FIR need not be encyclopaedic[xxxv];
- The court will take into consideration the circumstances of the complainant, including his/her physical and mental condition, and exercise caution only to the limited extent of ensuring that there is no false fabrication[xxxvi];
- While appreciating the evidence in cases which involve a crowd of people, the courts have admitted that it is not possible for the witnesses to accurately describe the role played by each person who was part of the unlawful assembly, and have directed that such evidence be dealt with carefully to identify the truthful portions to rely upon[xxxvii];
- In some situations, the details relating to the occurrence of the offence may be missing or not mentioned, but the skeletal framework of facts as narrated can be substantiated by the witnesses in their narration. In that case, the mere omission or non-mentioning of the details will not weaken the case[xxxviii];
- The failure to mention the names of accused person/s who may be responsible for the unlawful act does not raise any doubt on the genuineness of the complaint or the complainant if there is sufficient explanation for the inability to identify the accused[xxxix];
- There is also no need to mention the names of any witnesses in the complaint[xl];
- If the facts, as narrated in the complaint, are found to be reliable, then if the details relating to the assault are omitted, that will not affect the case of the complainant[xli]; and
- The omission of mentioning the name of the weapon used in the assault will also not affect the case[xlii].
An important point to remember is that the complaint needs to be truthful and must be reliable for a court, and any omissions, if sufficiently explained, will not weaken the complaint.
[i] The Code of Criminal Procedure, 1973 hereinafter referred to as CrPC
[ii] (Ratanlal v. Prahlad Jat and Ors 2017)
[iii] (Manohar Lal v. Vinesh Anand and Ors 2001)
[iv] Prahlad Jat, supra note 1, at 3
[v] Id. at 3
[vi] (A.R. Antulay v. Ramdas Sriniwas Nayak and Anr 1984)
[vii] Vinesh Anand, supra note 2
[viii] Prahlad Jat, supra note 1, at 3
[ix] Id at 7
[x] (Bhimappa v. Laxman 1970)
[xi] Id at 6
[xii] (State of Orissa v. Dillip Kumar Chand 1987)
[xiii] (Rameshwar v. State of Rajasthan 1951)
[xiv] (Animareddy Venkata Ramana and Ors. v. Public Prosecutor, H.C. of A.P. 2008)
[xv] “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.
[xvii] (Lalita Kumari v. Government of U.P and Ors 2013)
[xviii] Id at 9
[xix] Id at 9
[xx] Id at 9
[xxi] Id at 9
[xxii] (Madhu Bala v. Suresh Kumar 1997)
[xxiii] “(1) Every information relating to the commission of a cognizable offense, 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”
[xxiv] “44. Police-officers to keep dairy. – It shall be the duty of every officer in charge of a police-station to keep a general diary in such form as shall, from time to time, be prescribed by the State Government and to record therein all complaints and charged preferred, the names of the complainants, the offences charged against them, the weapons or property that shall have been taken from their possession or otherwise, and the names of the witnesses who shall have been examined. The Magistrate of the district shall be at liberty to call for any inspect of such diary”.
[xxv] Dhirajlal, infra at 476
[xxvi] “Section 172. Diary of proceedings in investigation.
- Every police officer making an investigation under this Chapter shall day by day enter his proceedings in the investigation in a diary, setting forth the time at which the information reached him, the time at which he began and closed his investigation, the place or places visited by him, and a statement of the circumstances ascertained through his investigation.
- Any Criminal Court may send for the police diaries of a case under inquiry or trial in such Court, and may use such diaries, not as evidence in the case, but to aid it in such inquiry or trial.
- Neither the accused nor his agents shall be entitled to call for such diaries, nor shall he or they be entitled to see them merely because they are referred to by the Court; but, if they are used by the police officer who made them to refresh his memory, or if the Court uses them for the purpose of contradicting such police officer, the provisions of section 161 or section 145, as the case may be, of the Indian Evidence Act, 1872 (1 of 1872 ), shall apply.
[xxvii] Code of Criminal Procedure, supra at 14
[xxviii] (Dhirajlal 2012)
[xxix] (Baldev Singh v. State of Punjab 1990)
[xxx] (Nankhu Singh v. State of Bihar 1972)
[xxxi] (Upkar Singh vs Ved Prakash & Ors 2004)
[xxxii] (Kari Choudhary vs. Mst. Sita Devi & Ors. 2002)
[xxxiii] “(3). Any person aggrieved by a refusal on the part of an officer in charge of a police station to record the information referred to in sub-section (1) may send the substance 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 case himself or direct an investigation to be made by any police officer subordinate to him, in the manner provided by this Code, and such officer shall have all the powers of an officer in charge of the police station in relation to that offence.”
[xxxiv] (Priyanka Srivastava and Ors. vs. State of U.P. and Ors 2015)
[xxxv] (Animareddy Venkata Ramana and Ors. v. Public Prosecutor, H.C. of A.P. 2008)
[xxxvi] Id at 5
[xxxvii] (Masalti v. State of U.P 1964)
[xxxviii] (Ram Gopal v. State of Rajasthan 1998)
[xxxix] (Gaura Venkata Reddy v. State of A.P 2003)
[xl] (Bhagwan Singh v. State of M.P. 2003)
[xli] (Kovvuri Surya Bhaskara Reddy v. State of A.P, 1998)
[xlii] (State of U.P v. Ballabh Das 1985)