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Quest for Justice Initiating Criminal Prosecution

Crime is on the rise and so is the police apathy. The recent Unnao rape incident being the most accurate example of the same. It is because, in the said incident, local police administration refused to take action because the allegations were leveled not against some run of the mill degenerate but an influential legislator wielding invincible clout in the region. Eventually, the authorities acted but only after the incident caught the nation's attention after the death of the father of the victim inside the prison under susceptible circumstances and the victim's failed attempted at self-immolation outside the residence of the head of the province.

Under such circumstances, what strikes the mind of a common citizen is whether the law provides for a remedy if the police administration chooses to turn a blind eye?
The present article is an attempt to answer the aforesaid question and questions of like nature in the minds of common citizens and would also endeavor to educate the readers about the specific provisions of the law on how to set the criminal law in motion should the situation so arise.

Under the Indian penal system, there are two categories of offences: Cognizable and Non-Cognizable Offences. Broadly, Cognizable offences are offences which are serious like theft, extortion, homicide, sexual assault et al., in respect of which police is bound to register an FIR (First Information Report) under Section 154 of the Cr.P.C, and conduct a fair, thorough and impartial investigation in the matter.

Non-Cognizable offences are the offences like defamation, offences related to marriage (like adultery, etc.), misappropriation of movable property, simple mischief et al., in respect of which police is mandated to register a non-cognizable report under Section 155 of the Cr.P.C and initiate investigation only upon the order of a competent Judicial Officer i.e. a Judicial Magistrate.

If the police i.e. the officer in charge of the police station- under the jurisdiction of which a cognizable offence has been committed refuses to register the FIR, then in such a situation Section 154 (3) of the Cr.P.C provides for approaching the senior police officials for the said purpose.

Often, police authorities refuse to lodge FIR on the ground that the offence has been committed outside the limits of their territorial jurisdiction. The said reasoning is without any basis and perverse.

It is the bounden duty of the police to lodge FIR in case information given discloses commission of a cognizable offence and if in case the said offence has been committed outside the limits of its territorial jurisdiction, then they are by law required to register a Zero FIR and besides proceeding to the place of occurrence for investigation they are also obligated under law to extend aid and assistance that may be required in facts and circumstances of a given case.

Later on, the investigation in such a case is to be transferred to the Police Station of competent jurisdiction, but they cannot refuse to register the FIR on any ground much less on the ground of lack of territorial jurisdiction, if the information given discloses the commission of a cognizable offence.

If in case the aforesaid does not yield results, then, in such a scenario, the complainant can file a complaint under Sections 190 read with Section 200 of the Cr.P.C before the Court of competent local Magistrate to prosecute the offender.

Adopting such a course of action gives rise to two situations. In first, the concerned Magistrate on being prima facie satisfied that the allegations leveled disclose the commission of a cognizable offence and/or the matter involves-gathering of evidence which otherwise is not possible without the aid and assistance of the police machinery, may without taking cognizance of the matter as provided under Section 190 (1) (a) read with Section 200 Cr.P.C, direct the registration of the FIR and the subsequent investigation by the police under Section 156 (3) of the Cr.P.C.

After completion of the investigation, Police will submit its final report under Section 173 of the Cr.P.C. If the police, based upon the investigation concludes that there is sufficient evidence to prosecute the accused then it would file a final report in terms of Section 170 of the Cr.P.C together with all the evidence. However, if the police conclude that evidence is slender then, in that case, it will file a closure report in terms of Section 169 of the Cr.P.C.

If the complainant is of the view that the investigating authority has not conducted a fair and/or thorough and/or impartial investigation in the matter, then he/she has the liberty to file a protest petition against the report submitted by the investigating authority. After hearing the complainant/petitioner, if satisfied, the Magistrate may direct further investigation.

Under the second scenario, the Magistrate may straight away take cognizance of the complaint under Section 190 (1)(a) Cr.P.C and proceed in terms of Section 200 Cr.P.C examining the complainant and the evidence produced by him. Under Section 202 Cr.P.C, the Magistrate is also empowered either to inquire about the case himself or direct investigation by a police officer to determine whether there are sufficient grounds for proceeding against the offender. Such powers are to be mandatorily exercised by the Magistrate if in case, the accused/offender stays beyond the limits of his territorial jurisdiction.

If after the inquiry or the investigation as the case may be the Magistrate concludes that there are sufficient grounds available, then he would proceed to issue summons/warrants as the case may be against the accused for facing trial under Section 204 Cr.P.C. If sufficient grounds are not available then the complaint would be dismissed in terms of the Section 203 Cr.P.C.

Such an order of dismissal passed under Section 203 Cr.P.C can be challenged either before the concerned High Court or before the Court of Sessions under Section 397 Cr.P.C.

It is often seen that although the case has been registered by the concerned competent police authorities, however, the investigation conducted is either not fair and/or thorough and/or impartial or that the investigation in the matter has been put on the back burner then in such a scenario, the complainant has been provided with the remedy of approaching the concerned Magistrate under Section 156 (3) of the Cr.P.C, who in turn has been vested with ample powers to direct the proper/further investigation and if considered necessary, also has the power to monitor the investigation.

Written By: Puneet Varshney

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