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Fighting frivolous FIR and its Remedies

April 21, 2022

By Nihit Nagpal and Anuj Jhawar

First Information Report

FIR is the First Information Report given to a police officer in charge by any aggrieved person relating to the commission of any offence. Though FIR as a term is not defined in the Code of Criminal Procedure, 1973 (hereinafter referred to as “CrPC”) but, Section 154 of the CrPC[1] relates to FIR as “information in cognizable cases”.

Registration of FIR

FIR given to a police officer is registered under Section 154 (1) of the CrPC[2] which states that any information relating to the commission of a cognizable offence, if given orally to the police officer, shall be reduced to writing and if given in writing shall be signed by the person giving it.

However, if the officer in charge of a police refuses to record such information, the aggrieved person may approach the Superintendent of Police under Section 154 (3) of the CrPC[3] who, if satisfied that such information relates to commission of a cognizable offence, either investigate the case himself or direct an investigation to be made by any police officer.

Further, if the Superintendent of Police fails to investigate, the aggrieved person may approach the Magistrate under Section 156 (3) of the CrPC[4] who may order a police officer to investigate a cognizable offence.

Quashing of FIR

There have been numerous instances where frivolous FIRs have been filed against persons solely to harass them at the hands of law. However, the Hon’ble High Courts in India under Section 482 of the CrPC[5] can exercise their inherent powers to prevent abuse of the process of law to secure the ends of justice. Although, a petition can be filed under Section 482 of the CrPC for quashing of the FIR, the Hon’ble High Courts can invoke their powers under Article 226 of the Constitution of India[6] if the Hon’ble High Court is convinced that the power of investigation has been malafidely exercised by a police officer, and in such case the Hon’ble High Court can issue a writ of mandamus restraining the police officer from misusing his legal powers, thus quash the FIR.

Difference between Section 482 of the CrPC and Article 226 of the Constitution of India

Section 482 of the CrPC Article 226 of the Constitution of India
An application under Section 482 of the Cr.P.C. in the High Court for quashing the First Information Report can be filed only after the charge-sheet has been filed. A petition under Article 226 of the Constitution alone can be filed in the High Court for quashing the First Information Report before filing of the charge-sheet.

 

Revision in Criminal Case

Section 397 of the CrPC[7] deals with the powers of revision. This provision gives the High Courts or the Sessions Courts jurisdiction to consider the correctness, legality or propriety of any finding inter se an order and as to the regularity of the proceedings of any inferior court. The Supreme Court of India in Prabhu Chawla v. State of Rajasthan[8] clarified that remedy available under Section 397 of CrPC for revision, does not bar the accused to approach the High Court under Section 482 of CrPC for quashing of the FIR.

Guidelines to be followed by Courts while exercising inherent powers to quash the FIR

The Supreme Court of India in State of Haryana v. Bhajan Lal[9] held that the Hon’ble High Court can quash the FIR to protect the accused from malicious prosecution.. The Apex Court issued seven guidelines which should be followed by the Court while exercising its inherent powers to quash the FIR under Section 482 CrPC. Those seven guidelines are as follows:

  1. Where allegations made in the FIR does not prima-facie constitute any offence against the accused.
  2. Where allegations in the FIR do not disclose a cognizable offence against the accused.
  3. Where allegations made in the FIR and the evidence collected in support of the FIR does not disclose the commission of any offence against the accused.
  4. Where allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate.
  5. Where allegations made in the FIR are so absurd and inherently improbable on basis of which no prudent person can reach a just conclusion that there is sufficient ground for proceeding against the accused.
  6. Where there is an express legal bar provided in the CrPC to the institution and continuance of proceedings and where there is a specific provision in the CrPC or the concerned Act, providing redressal for the grievance of the aggrieved party.
  7. Where a criminal proceeding is manifestly attended with mala fide and where proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to harass due to a private and personal grudge.

Conclusion

Thus, a frivolous FIR filed against a person to harass them at the hands of law can be challenged by filing a petition at the Hon’ble High Court under Section 482 of the CrPC read with Article 226 of the Constitution of India and the High Court while following the guidelines as laid down by the Hon’ble Supreme Court of India in State of Haryana v. Bhajan Lal can exercise its inherent powers to quash the FIR to protect the person from malicious prosecution.

Karanveer Singh, Associate at S.S. Rana & Co. has assisted in the research of this article.

[1] 154 of CrPC. Information in cognizable cases.

[2] 154 (1) of CrPC. Information of a cognizable offence, given to an officer in charge of a police station.

[3] 154 (3) of CrPC. Information of a cognizable offence, given to Superintendent of Police.

[4] 156 (3) of CrPC. Magistrate may order Police Officer to investigate a cognizable offence.

[5] 482 of CrPC. Saving of inherent powers of High Court.

[6] 226 of Constitution of India. Power of High Courts to issue certain writs.

[7] 397 of CrPC. Calling for records to exercise powers of revision.

[8] MANU/SC/0979/2016

[9] MANU/SC/0115/1992

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