[This article refers to the police as an organization and uses the singular pronoun].
It is no secret that the Pakistani police often transgresses its authority while making leisured efforts towards law enforcement and can become a hindrance itself in complying with its mandatory duties, one of which is the registration of a first information report (FIR). Lawyers are approached on a daily basis with countless complaints of aggrieved parties going to the police to get an FIR registered against perpetrators and the police either do not cooperate with them or ask them for a written application, thereby causing delays and letting perpetrators get away. In order to provide a remedy to the general public, the legislature made an attempt to rectify the abhorrently negligent behaviour of the police by amending Sections 22 and 25 of the Code of Criminal Procedure 1898 (CrPC) through the Code of Criminal Procedure (Third Amendment) Ordinance (CXXXI of 2002).
This article aims to inform the general public that the police is under a mandatory duty to register an FIR and remedies are available in case it refuses to do so.
What is an FIR? Is the Police Bound to Register It?
Looking at Section 154 of CrPC, it becomes blatantly obvious that when information regarding the occurrence of a cognizable offence is conveyed to the officer-in-charge of a police station i.e. the Station House Officer (SHO), he or she is under a mandatory duty to register an FIR [PLD 2005 LAH 470]. It is of paramount importance to highlight that the police is duty-bound to do so, irrespective of whether the information is being conveyed by an aggrieved person or someone on behalf of aggrieved persons [2004 YLR 1299; PLD 2000 LAH 364].
An exception under which the police can refuse to register an FIR is when an incident has occurred outside the jurisdiction of a particular police station. In such instances, the informant (person informing the police of an alleged crime) should ask the police directly or call the police helpline regarding the relevant police station having jurisdiction over the place of occurrence and then approach that police station accordingly.
At the relevant police station, Section 154, read with Rule 24.1 of the Police Rules, makes it mandatory for the police to reduce into writing the information received from the informant relating to the occurrence of a cognizable offence and enter the same in the FIR register and the police station diary.
This ought to be done without wasting any time. A delay in having the FIR registered is one of the main grounds which creates “reasonable doubt” in the minds of judges with regard to the occurrence, causing perpetrators to get away scot-free.
Legal Remedies When Police Refuses to Register FIR
If the police, for one reason or the other, refuses or delays the registration of an FIR, the aggrieved party can reduce into writing the incident and hand over a hard copy to the police, but again, a delay in registration can cast doubt during court proceedings. Moreover, defense counsel can argue that the delay was caused due to concoction of facts and the case had been registered with mala fide intent to damage the accused’s reputation.
For these reasons, the aggrieved party should quickly approach the Superintendent of Police (SP) first. The National Judicial (Policy Making) Committee (NJPMC) has asseverated in recent years that petitions under Section 22-A and B of the CrPC are not to be entertained if the SP has not been approached first with regard to the police’s failure to register an FIR. This decision of the NJPMC is horrendously abominable as it gives the executive body of the police, already contravening its duty, more authority to abuse its powers under the guise of redressing grievances. Delays in the registration of an FIR can potentially be caused on purpose, thereby favouring perpetrators. Giving the bully a baseball bat seems ridiculous.
Once this alarmingly god-awful hindrance has been strived for and no FIR has still been registered, the aggrieved person can avail his or her irrefutable statutory right under Section 22-A and B of the CrPC and approach an (ex-officio) Justice of the Peace (JP). (Ex-officio) Justices of the Peace, as laid down in section 25 of CrPC, are Sessions or Additional Sessions Judges.
This legal remedy is availed by filing a petition under Section 22-A and B for the registration of FIR in the Court of Sessions. Once the petition is filed, a date is set for the JP to review the petitioner’s application. From the facts narrated, if a cognizable offence gets made out in the opinion of the (ex-officio) Justice of the Peace, he or she is to issue a direction to the concerned police officer to register the FIR, or, under certain circumstances, direct the petitioner to resort to an alternative remedy of filing a private complaint under Section 200 of CrPC [2007 PLD SC 539].
In Muhammad Tayyab v Justice of the Peace [2017 YLR LAH 766], the accused argued that without a DNA test it would be rather dangerous to book him for a heinous offence punishable with life imprisonment. The High Court’s constitutional jurisdiction under Article 199 of the Constitution of Pakistan was invoked, assailing the validity of the order passed in favour of the aggrieved party, Amna Mai, by the learned (ex-officio) Justice of the Peace. The Lahore High Court (Multan Bench) dismissed Muhammad Tayyab’s constitutional petition and held the following:
“…case should have been registered under S. 154, CrPC when the matter was reported to the police. The Police administration was bound to follow the dictate of law. The Ex-Officio Justice of the Peace had exercised the authority vested in him by ordering the SHO to register a case on an application made by the complainant. Investigation including a DNA test was to follow, the registration of a case and under no circumstances could it precede the registration of case nor could the registration of case be deferred or made contingent upon the positive report of DNA test.”
In other words,
“…neither the provisions of Section 22-A and B of CrPC, nor Article 199 of the Constitution, are meant to provide a shortcut to the interested parties, but are to be invoked when police functionaries are avoiding to perform legal duties.”
[2020 P Cr LJ PESH 1155].
The honourable Lahore High Court has stated time and again that the only obligation which can be exercised by an ex-officio Justice of the Peace under Section 22-A(6)(i), CrPC is to examine whether the information disclosed by an aggrieved party constitutes a cognizable offence. If, in his or her opinion, based on the facts narrated, a cognizable offence has been made out, then the only direction he or she can give is to the concerned SHO to register an FIR without going into the veracity of the information in question. Offering any other interpretation to the provisions in question will violate the entire scheme of CrPC, which cannot be permitted.
The ex-officio Justice of the Peace is not supposed to act in a mechanical manner and order the registration of an FIR in every single case. Even otherwise, the petitioner has an alternative remedy to file a direct complaint under s.200, CrPC [2016 MLD KAR 792]. As mentioned above, the ex-officio Justice of the Peace can, in certain circumstances, direct the aggrieved party to approach the appropriate forum to register a private complaint under s.200, CrPC for the redressal of his or her grievances, in accordance with the law, which is an equally efficacious remedy under the law [2018 P Cr LJ LAH 54; 201 P Cr LJ KAR 846].
What is a Private Complaint? When and Where is it To Be Filed?
A private complaint has been described under Section 4(1)(h) of CrPC in the following words:
“…an allegation made orally or in writing to a Magistrate, with a view to his taking action under CrPC that some person whether known or unknown, has committed an offence, but it does not include the report of a police officer.”
A private complaint is to be filed before a magistrate who can take cognizance of an offence upon receiving a complaint, as provided under Section 190(1)(a) of CrPC. Therefore, when a magistrate receives a private complaint under Section 200 of CrPC, he or she can take cognizance of the same, provided that he or she must examine upon oath the complainant and witnesses if any, as well as the substance of the complaint.
This means that the facts narrated must be composed within a written document, which must be signed by both the magistrate himself or herself and the complainant, in order for the magistrate to take cognizance of the same under Section 190 of CrPC.
The examination upon oath is mandatory for the magistrate where a complaint has been made orally. If a private complaint has been made in writing, the magistrate is no longer bound to examine the same. Section 200(a) of CrPC provides that if a complaint is made in writing, the magistrate can transfer it to another magistrate under Section 192 of CrPC, or send the complaint to the Court of Sessions without any examination. Subsection (c) of Section 200 CrPC further provides that where the original magistrate (before whom a private complaint was filed) has already examined the private complaint and transferred the same to a new magistrate under Section 192, the new magistrate is not required to re-examine the complaint.
When a private complaint is received by a magistrate, the relevant statutory provision under which he or she can take cognizance is Section 190, however, further proceedings regarding the private complaint must be undertaken under Sections 200-204 of CrPC, as well as Section 205 of the same Code if required.
Once cognizance has been taken by the magistrate, he or she has the prerogative, as stipulated under Section 202(1) of CrPC, to postpone the proceedings to either inquire into the circumstances of the case himself or herself, or direct an investigation to be carried out by the police or any Justice of the Peace as the magistrate deems fit for the purpose of ascertaining the veracity of the complaint.
Subsection (3) of the same section further provides that the person chosen by the magistrate to inquire into the circumstances of the case has the same powers as the officer-in-charge of a police station. The only difference is that an officer-in-charge can arrest without warrant whereas the person designated for the purpose by a magistrate cannot, unless the magistrate appoints himself or herself to verify the veracity of the complaint.
Subsequently, in the wake of the inference of an inquiry, the magistrate can dismiss a private complaint under Section 203 of CrPC if, in his or her opinion, there are no grounds to proceed further with the complaint.
Conversely, following the deductions made during an investigation, if, in the court’s opinion, there exist reasonable grounds to proceed further with the complaint, the magistrate must ‘issue process’ (i.e. either issue a summons or warrant) under Section 204 CrPC.
Subsection (1) of the same section prescribes that where sufficient grounds for the ‘issue of process’ exist and the case falls within Schedule 2 of the same Code, the court must issue summons first.
If, under Schedule 2, the case is a ‘warrant’ case and not a summons case, the court can issue either a warrant or a summons for securing the attendance of the accused.
The views expressed in this article are those of the author and do not necessarily represent the views of CourtingTheLaw.com or any organization with which he might be associated.