January 3, 2010

Mandatory registration of FIRs

The proposed move towards tightening of procedural norms by making all complaints given to the officer-in-charge of a police station compulsorily registerable in the First Information Report (FIR) calls for a careful consideration. Seen as one of necessity and not of choice, mandatory registration of all complaints as FIR seeks to dilute the yawning disparity between a cognizable and non-cognizable offence as it results into the registration of FIR even in non-cognisable offences that are less grave in nature.

The key difference between these two offences is that in a cognizable offence the police may arrest without warrant and has a duty under the law to investigate the matter while in a non-cognizable offence police cannot investigate into the matter without permission from the Magistrate. Currently, the police officer has the discretion to refuse the registration of FIR in petty cases without recording any reasons for such refusal. However, in the wake of this proposal the officer-in-charge is bound to register a case on the basis of any information being disclosed to him irrespective of its nature.

That apart, this change in law seeks to over burden the police with unnecessary investigation, (especially in matrimonial complaints where false FIRs are lodged to harass the in-laws) and as a corollary result into ineffective investigation and hinder the existing backlog of cases. Police excess has been one of the oddities of criminal justice delivery system and this proposal purports to legitimize it by opening avenues for misuse of powers of investigation. There have been instances where the police have, during the investigation, made out a cognisabe case out of a non-cognisable one out of bias, personal or pecuniary, or in some cases because of some superior or socio-political interest.

The age-old criminal code in addition to the Police Act of 1861 legitimize police abuse by providing that no proceeding of a police officer shall at any stage be called in question on the ground that the case was one which such officer was not empowered to investigate. Substituting the discretionary power of the Magistrate with that of the officer-in-charge of a police station is bent on creating a fresh wave of trouble that has the competence of setting a trend of deterioration of fair investigation and just trials which together form the essence of the whole criminal justice system.

On a careful examination of the objective and eventual aim of this proposal it emerges unambiguously that the purpose for which it is legislated stands unserved even after its approval. The purpose of registering FIR is to set the criminal law into motion in order to find out through a long process of investigation the nature of crime, the manner in which it was committed and persons involved in the commission of crime. The power to arrest a person on reasonable suspicion for purposes of finding out more corroborative evidence and sometimes leading to discoveries of crime can only be exercised in a cognizable offence.

By making a non cognizable offence investigated by the police without the order of arrest from a Magistrate is struck in the labyrinth of procedural requirements. Currently, an aggrieved victim may walk out of the police station and either write to a superior officer or in the alternative lodge a complaint with the Magistrate having power to try the case who would then direct the officer-in-charge to investigate the case. Despite procedural hiccups, alleged misconduct on part of the officer-in-charge may also be enquired into. In order to deserve proper implementation, the criminal code has to be amended in terms with the proposal to extend the power of arrest in non-cognisable cases. Given the plethora of cases pending trial and the lethargic attitude of police towards investigation, mandatory registration of FIRs is neither feasible nor desired.