WHY SHOULD ONE NOT MOVE TO THE HIGH COURT FOR THE REGISTRATION OF THE FIR IF THE SAME WAS REFUSED BY THE POLICE?

Introduction

Is it feasible to move directly to the High Court for the registration of an FIR if the police refuse to do the same? One would think, “Yes, that’s conceivable.” Section 482 of the Code of Criminal Procedure and Article 226 of the Indian Constitution provide for the filing of a writ petition before the competent High Court. The course, however, is not as straightforward as it appears. Should one, even if it is possible, move directly to the High Court for FIR registration? Section 482 of CrPC specifies that the High Court’s inherent powers are preserved. Nothing in this code should be construed to impede or hinder the high court’s inherent authority to issue decisions required to carry out any action brought under this code, to prevent exploitation of any court’s process, or to otherwise accomplish justice’s aims.

The High Court’s use of power under Section 482 is guided by two goals:

• Preventing abuse of the legal system;
• Ensure that justice is served.

Article 226 of India’s constitution

It states that the High Courts have the authority to issue certain writs. Powers are extraordinary and inherent, and they cannot be used when the CrPC contains specific powers for dealing with a situation.

When one can avail of Section 482

Petitioner sought a direction under Section 482 to register an FIR that was not maintainable since he had exhausted his remedies under Sections 154 (1), 154 (3), and 156 (3) of the criminal procedure code, i.e.

• The petitioner goes to the police station with his information under Section 154(1).
• If you’re not satisfied, register a complaint under Section 154(3) of the Criminal Procedure Code with the Superintendent of Police and the Deputy Commissioner of Police.
• If not satisfied, he went to a magistrate’s court for a command to the police station to record the FIR and do an investigation according to Section 156 (3) of the code of criminal procedure.

Supreme Court decisions

We regularly witness people flooding to a high court to file a writ petition or a petition under Section 482 CrPC if they have an issue that their FIR has not been registered with the police station and/or a thorough investigation is not being conducted by the police, as the Supreme Court of India declares in paragraph 25 of Sarkiri Vasu versus the State of U.P. and others. We genuinely think the high court should not incentivize this practice, so the orderly turned down to intervene in this case and consigned the petitioner to his substitute remedy of first going to the concerned police officer according to Section 154 (3) and Section 36 of the CrPC, and if that fails, then go to the concerned magistrate according to Section 156(3) of the CrPC.

If a person has a complaint that his or her FIR has not been registered by the police station, he or she should first contact the superintendent of police under Section 154 (3) of the CrPC or some other police officer listed in Section 36 of CrPC. He also has the option of approaching a magistrate and filing a complaint under Section 156(3) of the CrPC instead of rushing to the high court via writ petition and a petition under Section 482 of the CrPC if his problems persist despite addressing the superintendent of police or the person referred to in Section 36 of the CrPC. Moreover, why should a writ petition under Section 482 be entertained when he additionally has the option of filing a criminal complaint under Section 200 of the Criminal Procedure Code?

This decision, in this case, was followed in the case of Sudhir Bhaskarrao Tambe v. Hemant Yashwant Dhage, where it was held that even if the High Court directs the police officer to register the F.I.R. and conduct an investigation, the respondent may challenge this decision in the Supreme Court of India. The Madras High Court asked the police to register an F.I.R. against the appellant Mr. M. Subramaniam based on the complaint to investigate and submit a report in the case of M. Subramanium & anr vs S. Janaki & anr in the Supreme Court citation-criminal appeal no 102 of 2011. The Supreme Court threw down the order ordering the registration of F.I.R. in accordance with Section 482, as well as the order directing the registration of F.I.R. in accordance with Section 482, based on the judgment in Sarkiri Vasu versus the State of U.P. and others.

The following requirements must be met before advancing to the High Court

These prerequisites must be met before proceeding to the High Court:

• When a magistrate refuses to grant a judgment according to Section 156(3) of the Criminal Procedure Code,
• It isn’t registered, despite a magistrate’s decision under Section 156(3).
• If police officers fail to finish the preliminary investigation within six weeks, as required by the Supreme Court in Lalita Kumari vs. State of Uttar Pradesh,
• If police officers close the case after the preliminary investigation,
• When the remedy provided under Section 156(3) is proved to be insufficiently effectual,

In exceptional circumstances, the remedy provided by section 156(3) may be avoided

There could be extremely unusual instances where the remedy under section 156(3) may be avoided if the case is demonstrated to be:

1. One of the rarest cases, 
2. A surprising and heinous offense
3. Extreme official indifference and apathy
4. The requirement to respond to the judicial consciousness
5. The presence of an unfavorable environment

This notion of an alternative remedy has always been handed down by the Supreme Court as a rule of convenience rather than a rule of law.

One should also avoid going straight to the High court

• The high court may refuse to intervene, and the petitioner is likely to be relegated to his alternative first according to Section 154(3) and then according to Section 156(3) of the Criminal Procedure Code.
• Subsequently, if a judge of the High Court directs the F.I.R. to be registered on the one hand and the other hand, the opposite party may file a petition for the quashing of the F.I.R.
• The F.I.R. may be quashed by the High Court.

Conclusion

One should not hurry to move to the High Court with a writ petition according to Article 226 of the Indian Constitution or an application according to Section 482 of the Code of Criminal Procedure in the case of non-registration of FIR; instead, use the alternative remedy offered by Section 156(3) of the Code of Criminal Procedure. Only after all the remedies have been exhausted, should one decide to move to the high court in the case of non-registration of FIR by the police.

Author(s) Name: Jay Kumar Gupta (NMIMS School of Law, Bengaluru)