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How to File a Criminal Complaint in India

Reporting the commission of a crime is the foremost step in setting the criminal law in motion. The general public has an impression that the process of reporting an offence and setting the law in motion is kafkaesque. Though, it is true that the statutory provisions on reporting crimes is filled with jargons, the procedure in essence is direct and straightforward.

The fundamental question that arises on the subject of reporting crimes is, who can report about commission of a crime and to whom?
As per the procedural laws in India, it is not necessary that only the person who is victimized by the crime needs to report the same. Any person can pass on the information to the law enforcement agency. With respect to the question to whom, the information can be given both to the police as well as the jurisdictional Judicial Magistrate.

A person who wishes to report commission of an offence has two options. Either to give information to the police or to file a complaint to the magistrate. While the former method proceeds with investigation by police and trial thereof, the latter involves prosecution by private persons.

Difference between Complaint and Information

Information - As per Section 154 CrPC, any information regarding commission of a cognizable offence can be reported to the Police by a witness or victim or a person who has knowledge about the act. The said information will be recorded as FIR.

Complaint - Whereas, As per Section 2(d) of CrPC, a complaint is an allegation made to the Magistrate in writing or verbal form which mentioned about the offence committed by a person whether known or unknown and does not include a police report.

Difference
Though in common parlance, verbal information given to a police official is named as complaint, as per CrPC, it will still be treated as information and not complaint.

FIR can be registered only for cognizable offence whereas a complaint can be filed for both cognizable as well as non-cognizable offence.

FIR is lodged at a police station nearer to the crime place based on oral or verbal information while a complaint is made to the Magistrate in writing or verbally.

In case of FIR, the police will proceed to investigate the offence and upon completion of investigation the final report will be filed to the magistrate. From thereon, the trial will be conducted by the state. The original informant will be de-facto complainant and will be arrayed as witness. The State will remain de-jure complainant

Whereas in a case of Private Complaint, the private person who filed the complainant will prosecute the accused person.

Procedure for Registration of FIR:

Information to the local Police station:

As stated earlier, the information can be oral as well as verbal.

The person who is affected or witnessed the commission of a crime, can inform the police by making a phone call to the police station or by going in person.

Even a call made to the emergency helpline 100 can be treated as Information for the purpose of registering a FIR.

The police officer who is receiving the said information has a duty to register the FIR, if the information makes out a cognizable offence. The Code of Criminal Procedure classifies the offences as cognizable and non cognziable. The classification is based on the gravity of each offence and the punishment provided therein. Generally, serious offences like murder, rape, robbery are cognizable offences. Whereas offences like defamation, bigamy, Cheque dishonour are non cognizable offences.

If it is doubtful whether the allegations made in the information makes out a cognizable offence, The police officer will issue a CSR, which is nothing but an acknowledgment of receipt of the compliant and proceed to conduct Preliminary enquiry

As decide in Lalita Kumari's case, the preliminary enquiry is only for the purpose of determining whether the allegations make out a cognizable offence. It is not for the purpose of testing the veracity of the information. The police officer cannot avoid his duty of registering offence if a cognisable offence is disclosed. Action must be taken against erring officers who do not register the FIR if information received by him discloses a cognisable offence.

In lalita Kumari's case the court provided a detailed list of cases wherein Preliminary enquiry may be conducted. The list included matrimonial or family disputes, medical negligence cases, commercial offences, corruption cases and cases where a delay occurred in initiating a criminal case.

It also ordered that a preliminary inquiry must be initiated within 7 days in any case, which was later increased in March 2014 to 15 days in normal cases and 6 weeks in exceptional cases.
Information to the Superior officer.

If the officer incharge of a police station refuses to register FIR, the informant can approach the Superintendent of Police of the concerned District under section 154(3) CrPC.

Magistrate order for Registration of FIR:

If both the local police station and the superior officer refuses to register a FIR, the informant can approach the Magistrate under Section 156(3) CrPC seeking direction to the police to investigate.

As per the mandate of Priyanka Srivatsva's case, the complaint u/s 156(3) CrPC should be made in the form of an affidavit.

As per Priyanka Srivatsva's case, it is also mandatory to exhaust the above said procedure of approaching the local police station and superior officer before approaching the magistrate u/s 156(3) CrPC.

The filed application must have some substance. Registering an FIR should be ordered only upon finding serious allegations or commission of a cognizable offence requiring investigation.

High Court direction for Registration of FIR

If the learned magistrate passes an order refusing to direct investigation to the police officers or if there is inaction on the part of the part of the police, the aggrieved persons can file a Writ Petition or a Petition for direction u/s 482 CrPC, before the concerned High Court and seek a direction for registration of FIR.

Complaint to Judicial Magistrate:

A victim or the person who has knowledge about the commission of a crime can file a complaint under Section 200 in the Code Of Criminal Procedure, 1973.

The Magistrate who takes the cognisance of an offence upon complaint examines the complainant and the witness, if any, upon oath. The complaint then gets reduced to writing and signed by the complainant and the witnesses along with the Magistrate.

However, when the complainant makes the complaint in writing, the Magistrate does not need to examine the complainant and the witness in cases:
  1. if the complainant is a public servant in discharge of his official duties (incase of NDPS Act, PMLA, RBI Act etc)
  2. if the Magistrate puts the case for any inquiry or trial to another Magistrate under Section 192

Inquiry/ Investigation:
If it is doubtful for the learned Magistrate, whether there is sufficient grounds for proceeding, the Learned Magistrate may inquire by himself or order an investigation to be made by police or any other person.

The inquiry or investigation is only for the purpose of deciding whether there is sufficient grounds for proceeding.

Issuance of Process
If the magistrate is satisfied with or without the inquiry/investigation that there is sufficient ground to proceed, the magistrate will issue summons to the accused and proceed with inquiry and trial.

If the magistrate refuses to issue a process and dismisses the complaint, the aggrieved person can approach the Sessions Court by filing a revision petition.

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