Registration of FIR: A Dynamic Solution
REGISTRATION OF FIR: A DYNAMIC SOLUTION
By Muhammad Ahmed Saeed, Deputy Prosecutor-General, Punjab
Registration of FIR is the most complicated problem of administration of criminal justice system of Pakistan. Recently, a political party had to make sit in for continuous period of 120 days for registration of FIR, thereafter; it was registered with kind intervention of incumbent Chief of Army Staff^1^. As per the interpretation of section 154, Cr.P.C. the SHO is duty bound to register every information disclosing commission of any cognizable offence in accordance with the prescribed manners but unfortunately ground reality is totally different. It depends upon multiple factors whether a FIR should be registered or not. It is the daily routine of almost all SHOs to violate the mandatory directions of sections 154 and 155 of the Criminal Procedure Code, 1898. Sometimes, police officers have been found guilty of floating the court orders for registration of FIRs as well. So, we have to learn the reasons that why are police officers reluctant to comply with their legal duties.
For registration of a FIR following factors have to be seen by the incumbent police officers. Firstly, who is the complainant? Secondly who is the proposed accused? Thirdly what are the allegations? Last but not least, the face behind the case. For example, a common citizen goes to police station and complains that he was injured by the chief minister. It is impossible to register FIR in this case. On the other hand, a daughter of SP complains that her dog is missing. In this case not only FIR shall be registered but also police officer will make immediate raids for recovery of stolen dog. In some other examples, police officers are hesitant to register case of theft, robbery, dacoity etc only in order to conceal their bad performance. Sometimes, political influence also does matter.
Anyhow, the FIR is the button; which initiates the criminal justice system; No FIR, no investigation, no conviction. Importantly, the FIRs are registered to evaluate the criminal statistics as well. Hence, whenever a complaint is denied to be converted into FIR; it resulted in miscarriage of justice in every such case. It is the legal right of every person who has knowledge of any offence to cause the criminal machinery into motion through FIR. The SHO is operator of this criminal justice system machine. As bad man quarrels with his tools similarly a bad operator causes this machine to be failed by his inefficiency. FIR is the first step toward administration of justice. Upon registration of FIR investigation is started. After complication of investigation a trial starts which results in convictions or acquittal. Simply, rapist, murderer, thief etc. cannot be tried and convicted without registration FIR.
The Legislature is very much clear upon this point. There is no cavil to this proposition that whenever a complaint is received it shall be converted either into FIR. In spite of, this crystal clear command, there are still 47,029 cases pending for registration of FIRs in Lahore High Court waiting for adjudication^2^. The jurisprudence of Criminal Procedure Code, 1898, and Police Rules, 1934, speak loudly that a police officer is not allowed to inquire into or investigate of any offence unless an FIR is not registered^3^. It is usual practice of every police station that whenever a complaint is filed for registration of FIR instead of incorporating it into prescribed register No. 24; the police officers have made an illegal register No. 5B. This complaint is numbered and registered in that register No. 5B which is illegal and unlawful. Presently this job is done by the computer cells/computer operators. After registering it in this illegal register a police officers of operation branch (who are absolutely not entitled to conduct any kind of investigation) is deputed to conduct a preliminary investigation. That officer calls upon parties including complainant and accused. Thereafter, he prepares a report in writing with the opinion for registration or non-registration of FIR. The same report is submitted before SHO, SDPO and DPO through proper channel. After getting concurrent approval of higher officers the FIR is registered or ordered not to be registered. An aggrieved person can file application before complaint redress cell where similar procedure is repeated with similar results. All these forums are not only illegal but also unconstitutional and against the spirit of criminal procedure code because every investigation prior to registration of FIR is illegal. Parties have to suffer the rigors of two concurrent tiers of investigations; one is prior to FIR and second is after registration of FIR.
Unsuccessful applicant starts first round of litigation in shape of application under section 22A/B, Cr.P.C. and knock the door of justice of peace (incumbent additional session judges). Thereafter, second round of litigation starts before the High Court under Article 199 of the Constitution of Pakistan. Almost all judges of higher courts and subordinate courts spend at least their prestigious half an hour on each day in deciding such applications relating to registration and non- registration of FIRs. The judiciary has to suffer an unnecessary burden of work just because of inefficiency of police officers.
On the other hand jurisprudence of registration of FIR is very much clear, the SHO is mandatorily directed to registered FIR first in concerned registered in accordance with section 154 and 155 of Cr.P.C. It does not matter whether the FIR seems to be fake, false or bogus. Even then SHO is directed to register the same in accordance with law. After registering the same SHO has option to make cancellation report under section 157, Cr.P.C. the cancellation report shall be submitted through public prosecutor in the court of concerned magistrate. The magistrate may agree or disagree with such report accordingly after granting opportunity of being heard to concern parties. This order may be challenged in appellate forums. The SHO has no mandate to throttle the throat of an application only with the reason that according to his opinion it is false. The Legal way is that first register and then decide its fate. However, second option for the SHO is to investigate the case and prepare a challan report under section 173, Cr.P.C. Thereafter, a trial proceeding may be commenced and accused may be acquitted or convicted accordingly. This is the real philosophy of the Criminal Procedure Code. All other mode and manner are illegal, irregular and unlawful.
One of the biggest back drops of the non-registration of FIR is that the false, frivolous and fake complainants remain unpunished. Such applicants can be punished under section 182, P.P.C. only if proper FIR had been registered and numbered and it is lawfully found to be incorrect in accordance with sections 157(2), 169 or 173 of Cr.P.C. So such tricky person abuses the process of law and run away without being punished. Second disadvantage of non-registration of FIR is missing of criminal statistics of accused and relevant statements. Late registration of FIR is another big problem. As the quotation exists, "justice delayed justice denied" similar factum prevails, "Delayed FIR is no FIR". The evidence also vanishes with the lapse of time in cases in which FIR is registered with considerable delay. The accused gets favour from the judiciary in cases where FIR is not timely registered. Inefficiency of the police has to pay by the complainant.
Another plethora box of the Criminal Procedure Code, 1898 is that there are two parallel systems for initiion of criminal justice system. On is through FIR under sections 154 and 155, Cr.P.C. and other is through private complaint under section 200,Cr.P.C. On the top of it there is also difference between registration of FIR for cognizable cases and non-cognizble cases in accordance with section 154 and 155 Cr.P.C. respectively. These two parallel sections and two conflicting sections make the situation bitterer. So there are too many avenues to find a proper way. Now, therefore, it is the right time to unify all these three provisions i.e. 154, 155 & 200, Cr.P.C. into one single consolidated system for initiation criminal justice system. Before we present our proposed scheme of law it would be more appropriate to reproduce the above sections here for better understanding.
|FIR COGNIZABLE||FIR NON-COGNIZABLE||PRIVATE COMPLAINT|
|154. Information in cognizale cases. Every information relating to the commission of a cognizable offence. 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 Provincial Government may prescribe in this behalf.||155. Information in non-cognizable cases (1) When information is given to an officer in-charge of a police-station of the commission within the limits of such station of a non-cognizable offence, he shall enter in a book to be kept as aforesaid the substance of such information and refer the informant to the Magistrate. (2) Investigation into non-cognizable cases. No police-officer shall investigate a non-cognizable case without the order of a Magistrate of first or second class having power to try such case [or send the same for trial to the Court of Session]. (3) Any police-officer receiving such order may exercise the same powers in respect of the investigation (except the power to arrest without warrant) as an officer in-charge of a police station may exercise in a cognizable case.||200. Examination of complainant. A Magistrate taking cognizance of an offence on complaint shall at once examine the complainant upon oath, and the substance of the examination shall be reduced to writing and shall be signed by the complainant, and also by the Magistrate: Provided as follows: (a) when the complaint is made in writing nothing herein contained shall be deemed to require a Magistrate to examine the complaint before transferring the case under section 192 [or sending it to the Court of Session]. (aa) when the complaint is made in writing nothing herein contained shall be deemed to require the examination of a complainant in any case in which the complainant has been made by a Court or by a public servant acting or purporting to act in the discharge of his official duties|
Three different avenues for initiation of criminal justice system are too confusing and inconsistent with each. The intent of legislature was to provide a variety of remedies but presently these three provisions of law are being abused. It had made the system obscure, perplex and complicate. All these three different systems may be amalgamated into one provision in following manner. In my humble opinion, all complaints for registration of FIR must be filed directly before the concerned judicial magistrate who shall properly number the complaint, enter into a proper register and thereafter he may order for inquiry or investigation accordingly through a judicial order in writing. Moreover, there should not be any discrimination between cognizable and non-cognizable. Police should arrest the accused who have been caught red handed or through hot pursuit. In all other cases, arrests shall be made through warrants properly issued by the Magistrates, except red handed arrests and hot pursuit arrests. This tool may helpful for reducing the illegal arrest and habeas corpus petitions. An aggrieved person may challenge the impugned order at higher forums if he is not satisfied from such order. A police officer receiving such applications shall also file the same immediately before the concerned magistrate who shall take action. The Sections 154 and 155, Cr.P.C. should be omitted from the code and a proper provision for registration of privte complaint may be drafted under section 200, Cr.P.C. with due consultation of all stakeholders. Through this amendment, all the conflicting systems may be unified in harmonious way. It will also diminish the huge pending litigation for registration of FIRs/ habeas petitions. In this regard 24/7 petitions receiving box may be prepared and managed accordingly.
Apart from the above solution which is most viable we have also following modes to deal with the problem. Now we come towards the solution of this problem, desperate problems have desperate remedies. We have to think out of box for solving this itching problem. A few of suggestions are as follows.
(1) Non-registration of FIR must be declared as a penal offense having severe punishments for delinquent police officers. A new chapter must be legislated and inserted in the Pakistan Penal Code.
(2) The Judicial Magistrate is fully empowered under section 156(3) Cr.P.C. to order the officer in-charge of a police station to conduct proper investigation. All the magistrates should vigorously use this power to curtail the problem of non-registration of FIR.
(3) In section 154 Cr.P.C. the word SHO may kindly be substituted with the word magistrate. The Magistrates shall be given mandate to register a computerized FIR with immediate effect and to order for investigation or inquiry accordingly.
(4) The applications received by the Existing Computer Cells may be given the status of FIR through delegated legislation or notification.
(5) Computerized software for online registration may also be installed. It is already working with little bit modifications in shapes of 8787. It should be given legal status.
(6) FIR registration booths may be constructed in police station with inbuilt camera installations. Any person may go there and record his audio/video which may be converted into FIRs accordingly.
As we sum up the above discussion, the all and end of this article is that all applications first inquire into or investigate of then they shall be cancelled or charge sheeted. A premature death of a complaint may result injustice. "Injustice anywhere can cause and disturb the justice everywhere". (Montesquieu)