PROCEEDURE FOR FILING A CRIMINAL COMPLAINT

Procedure 

The procedure for filing a Report or Complaint and the subsequent trial and other aspects of criminal law in relation to investigation, bail, etc. are enshrined in the Code of Criminal Procedure, 1973 (CrPC). In this note, I shall discuss the procedure for filing of a Criminal Complaint and what steps may be taken by Complainant pursuant to filing of a Complaint.

Most Indian citizens are not aware of their legal rights. This lack of awareness is among the major reasons because of which reporting of criminal activities is not a seamless process in India. The general perception about policemen is also not helpful. However, reporting of crimes that you witness is essenial.

Most Indian citizens are not aware of their legal rights. This lack of awareness is among the major reasons because of which reporting of criminal activities is not a seamless process in India. The general perception about policemen is also not helpful. However, reporting of crimes that you witness is essenial.

India has a poor reputation when it comes to reporting of criminal activity. Several crimes, particularly against women, go unreported. This is for a variety of socio-political reasons, but somewhere among them is also a misunderstanding of legal rights. India, in truth, has all the laws in place and understanding your rights is key to increasing reporting criminal elements in our society.

1. First of all it is important to understand that a criminal offence falls in two categories viz. cognizable offence and non-cognizable offence. The First Schedule of the CrPC provides a list of offences and classifies each offence as either of cognizable or a non-cognizable nature.
2. A cognizable offence, is an offence in which a police officer may arrest an Accused without a warrant.

A non-cognizable offence is an offence in which a police officer has no authority to arrest without a warrant.

3. Reporting an offence of a cognizable nature

 First Information Report (FIR)

In case you are the victim of a cognizable offence, the first step you would take is to approach the police. The police, on receiving information, prepares a written document, known as a First Information Report (FIR). The duty of the police lies in hearing the aggrieved and directing him to the District Magistrate for further action. An FIR can be filed by you if you are the person against whom the crime has been committed or know about an offence that has been committed. There are no charges for filing an an FIR, it being a crucial document that sets the criminal justice system in process.

Whenever an offence has been committed the aggrieved person or any person having knowledge of commission of the offence may approach the police station for recording the said information. In case the offence is of a cognizable nature, it is the duty of the officer in charge of the said police station to reduce the said information in writing in the form prescribed by the State Government. Further, the said officer is also duty bound to read over the contents of the said writing to the Complainant and take the signature of the Complainant.  FIR has to be given to the Complainant forthwith free of cost.

b. It is important to note that in case the Complainant is a woman who has been subjected to an offence of acid attack, sexual offences, etc.

only a woman officer can record her statement and further protective measures have also been laid down.

What can you do if your FIR is not registered?It is illegal to not register an FIR. The remedies available are:

1. You can meet the Superintendent of Police or other higher officers like Deputy Inspector General of Police & Inspector General of Police and bring your complaint to their notice.

2. You can send your complaint in writing and by post to the Superintendent of Police concerned. If the Superintendent of Police is satisfied with your complaint, he shall either investigate the case himself or order an investigation to be made.

3. You can file a private complaint before the court having jurisdiction.

4. You can also make a complaint to the State Human Rights Commission or the National Human Rights Commission if the police does nothing to enforce the law or does it in a biased and corrupt manner.

 Refusal to record information

On many occasions, it has been observed that the police officers are reluctant to take any record of the offence. In such cases, the aggrieved person may send the substance of the information to the Superintendent of Police (SP). If the SP is satisfied that the information discloses commission of a cognizable offence, then he may investigate the case himself of direct a police officer subordinate to him to investigate the case.

What is a zero FIR and when should it be used?

A zero FIR is used for crimes such as murder,rape etc. where immediate investigation is required and time cannot be wasted in reaching the police station under whose jurisdiction the crime falls. The main idea of a Zero FIR is to initiate the investigation or urge the police to take their initial action. Once you have lodged a Zero FIR, make sure that your complaint is not transferred to the appropriate police station in your jurisdiction without any initial action or investigation.A zero FIR is necessary for crimes where immediate action is required,eg in case of murder,rape etc, or when the police station under whose jurisdiction the crime was committed is not easily accessible, eg in case of crimes while travelling.

Jurisdiction of police station

Another reason or an excuse for police officers to not take the information is that the offence has not been committed within the jurisdiction of the police station.

On plain reading of the provisions and as held by the Apex Court, a police officer is duty bound to register the case on the basis of information disclosing a cognizable offence. If at the time of registration of FIR, it becomes apparent that the crime was committed outside the jurisdiction of the police station, then the officer shall register a ‘Zero’ FIR and ensure that the FIR is transferred to the concerned police station.

It is pertinent to note that refusal on the part of the police officers to record information of a cognizable offence may attract penal action under the Indian Penal Code against such officers.

Investigation

On receipt of information of a cognizable offence, the police has powers to investigate the matter even without the order of the Magistrate. In case the investigation is not being carried out diligently or in a biased manner then appropriate application can be made before the concerned Magistrate.

Reporting an offence of a non-cognizable nature

Incase of information in relation to a non-cognizable, the officer in charge of a police station within the limits of which said offence has been committed shall enter the contents of the said information in a book as prescribed by the State Government and refer the said Complainant to the Magistrate.

It is pertinent to note that the police officers do not have any authority to investigate or take any action in relation to a non- cognizable offence without such order of the relevant Magistrate. Pursuant to the order of the Magistrate directing investigation, the officer shall have the same powers of investigation as he has in case of a cognizable offence. However, he shall not have the power to arrest the Accused without warrant.

In a case where the officers do not file the said information of non- cognizable offence with the Magistrate seeking his permission or order to investigate, the Complainant may send follow up letters to the said police station where the information was given. Further, the Complainant may also file a private complaint before the concerned Magistrate.

Filing a complaint before the Magistrate

Once the Complaint has been filed the officers of the concerned police station carry out the investigation and if an offence is made out a chargesheet is filed in the said case. During the process of investigation, the police officers record statements of relevant witnesses and collect relevant documentary evidences. The role of the person aggrieved by the offence is to visit the police station and given his statement to the police. Further, he may also suggest names of other witnesses who may have vital information in relation to the offence. At the conclusion of the investigation the police officers may file a C-summary report before the Magistrate when they form an opinion that the offence is not made out or the dispute between the parties is civil in nature. When an offence is made out the police officers may file a chargesheet before the Magistrate and the trial will go on. At the stage of trial the Complainant shall be summoned by the Court for recording his evidence.

A Complainant may also directly approach the appropriate Magistrate who has jurisdiction over the said offence. The Magistrate shall examine the Complainant and the witnesses present along with the Complainant on oath. The said statements of the Complainant and the witnesses are reduced in writing and their signatures are taken on the same.

If the Magistrate is of the opinion that an offence is made out, he may issue a process against the Accused. In common parlance this is a notice directing the Accused to keep himself present before the Magistrate.

Insome cases the Magistrate may direct further enquiry in the matter before the process is issued against the Accused.

Role of the Complainant after registering offence

Criminal Complaint: The Plaint

It is a document submitted by the complainant to file a criminal complainant against an accused. In layman’s language, it is simply the written allegations of the complainant and it contains a summary of the facts of the case he seeks to present and the relief he seeks for the same.

If you are filing a plaint, you are the ‘plaintiff’ and the person whom you are filing against, is the ‘defendant’. There are certain regulations set by the ‘Limitation Act,1963’ for filing of plaints.

For instance, there is a time limit within which the plant should be filed, and it differs for different courts.

The Plaint, as per the Act, should be filed within 90 days in High court and within 30 days from the date of the crime that is being appealed against.

The details required to be mentioned in the plaint are:

A.The name of the court

B.The nature of the complaint

C.The name and addresses of both the parties.

All of this is normally typed in English, with double-line spacing.

It is also important to remember that it has to be filed within a certain time limit of the occurrence of the act in question as prescribed by the Limitation Act. A plaint filed after an unreasonable delay will not be entertained in the court of law. It should also contain a verification from the complainant with an assurance that all facts stated in the plaint are correct and true to his knowledge.

As the plaint procedure is simple, and if you have enough proof in hand, you can file them with the help of an expert in no time.

Criminal Complaint: Vakalatnama

This document is submitted by the complainant authorizing an advocate to argue the case on his behalf. Although an individual can file their Vakalatnama, the terms used are highly technical for a layman to understand, and respond in case of queries. Hence, a vakalatnama is a document that gives the advocate (who is appearing on your behalf) the authorization to fight for justice, and handle all court procedures on your behalf.

It contains the terms and conditions of this authorization, and lists out the rights of the advocate. The terms and conditions, mentioned in the Vakalatnama include:

1. The advocate will not be held responsible for any decisions taken by him/her during the course of an investigation, in the best interests of the clients.

2. The advocate will be paid the requisite fees as well as the fees for the court proceedings.

3. The advocate can be disengaged at any time during the proceedings, if the client wishes, and so on.

The basic idea of a Vakalatnama is to engage a lawyer to fight for the case in the court, and to provide him the authorization to do it with the permission of the plaintiff.

The vakalatnama is affixed with the plaint and submitted to the court by the advocate authorized to represent the case.

Although no fees are paid for submission, some courts demand a stamp ‘Advocate Welfare Stamp’ to be pasted on it.

Criminal Complaint: Court Fees

The plaints are required to pay the court fees, as per the rules and regulations set by the Court fees Stamp Act.

The nominal court fee is then paid by the Complainant as required by the Court Fees Stamp Act. The court fees usually amount to a nominal percentage of the value of a claim or the suit being made in the case filed and thus, differs depending upon the case.

The advocate authorized to carry on with the dealings of the case will be able to instruct about the procedures and also the court fees to be paid.

All citizens should get to know about their rights of filing FIRs. At the same time, they must be aware of the steps that they can take if police refuses to register their complaints. In some cases, it is best to file a complaint petition before the judicial magistrate instead of registering an FIR.

ARREST

Criminal prosecution typically begins with an arrest by a police officer. A police officer may arrest a person if (1) the officer observes the person committing a crime; (2) the officer has probable cause to believe that a crime has been committed by that person; or (3) the officer makes the arrest under the authority of a valid arrest warrant. After the arrest, the police books the suspect. When the police complete the booking process, they place the suspect in custody. If the suspect commited a minor offense, the policy may issue a citation to the suspect with instructions to appear in court at a later date.

Bail

If a suspect in police custody is granted bail, the suspect may pay the bail amount in exchange for a release. Release on bail is contingent on the suspect's promise to appear at all scheduled court proceedings. Bail may be granted to a suspect immediately after booking or at a later bail review hearing. Alternatively, a suspect may be released on his "own recognizance." A suspect released on his own recognizance need not post bail, but must promise in writing to appear at all scheduled court appearances. Own recognizance release is granted after the court considers the seriousness of the offense, and the suspect's criminal record, threat to the community and ties to family and employment.

Arraignment

The suspect makes his first court appearance at the arraignment. During arraignment, the judge reads the charges filed against the defendant in the complaint and the defendant chooses to plead "guilty," "not guilty" or "no contest" to those charges. The judge will also review the defendant's bail and set dates for future proceedings.

Preliminary Hearing or Grand Jury Proceedings

The government generally brings criminal charges in one of two ways: by a "bill of information" secured by a preliminary hearing or by grand jury indictment. In the federal system, cases must be brought by indictment. States, however, are free to use either process. Both preliminary hearings and grand juries are used to establish the existence of probable cause. If there is no finding of probable cause, a defendant will not be forced to stand trial.

A preliminary hearing, or preliminary examination, is an adversarial proceeding in which counsel questions witnesses and both parties makes arguments. The judge then makes the ultimate finding of probable cause. The grand jury, on the other hand, hears only from the prosecutor. The grand jury may call their own witnesses and request that further investigations be performed. The grand jury then decides whether sufficient evidence has been presented to indict the defendant.

Pre-Trial Motions

Pre-trial motions are brought by both the prosecution and the defense in order to resolve final issues and establish what evidence and testimony will be admissible at trial.

Trial

At trial, the judge or the jury will either find the defendant guilty or not guilty. The prosecution bears the burden of proof in a criminal trial. Thus, the prosecutor must prove beyond a reasonable doubt that the defendant committed the crimes charged. The defendant has a constitutional right to a jury trial in most criminal matters. A jury or judge makes the final determination of guilt or innocence after listening to opening and closing statements, examination and cross-examination of witnesses and jury instructions. If the jury fails to reach a unanimous verdict, the judge may declare a mistrial, and the case will either be dismissed or a new jury will be chosen. If a judge or jury finds the defendant guilty, the court will sentence the defendant.

Sentencing

During the sentencing phase of a criminal case, the court determines the appropriate punishment for the convicted defendant. In determining a suitable sentence, the court will consider a number of factors, including the nature and severity of the crime, the defendant's criminal history, the defendant's personal circumstances and the degree of remorse felt by the defendant.

Appeal

An individual convicted of a crime may ask that his or her case be reviewed by a higher court. If that court finds an error in the case or the sentence imposed, the court may reverse the conviction or find that the case should be re-tried.