Relief Against Failure to File Case in Police Station

Under the provision of law police is always bound to take case after commission of a cognizable offence for free of cost. But reality tells the different. Often people alleged that police is reluctant to take Ezahar/First Information Report (FIR) in police station for various reasons. If the concerned officer of a police station had denied to receive the case then the informant can file complaint case to the judicial magistrate straightly instead of filing the case to police station to get redress. 

However, one can lodge a complaint case to the judicial magistrate court directly in case of happening of a non-cognizable offence also. Non-cognizable offences are those type of offences for which police cannot arrest an accused without warrant and for which police need to take prior permission from magistrate to investigate the matter as well and cognizable offence is the vice versa. If anybody brings an information regarding the commission of a non-cognizable offence to the police station then the duty officer will take the matter as a General Diary (GD) and send the person to the Chief Metropolitan Magistrate/Metropolitan Magistrate/Chief Judicial Magistrate/1^st class Magistrate/Specially empowered Magistrate depending upon the place of occurrence along with the GD. 

Processes to lodge a complaint to the magistrate: The complainant should describe the matter in details to the concerned magistrate to take effective measures against the incident; including i) name and address of the accused, if known; ii) approximate time, date and place of occurrence; iii) enough description about suspect offenders; iv) sequential narration of every activity of the perpetrators v) present condition of the victim, vi) subsequent circumstances; vii) name of the witnesses, if any; viii) any previous linkage, history or threat to commit the offence; ix) types of injury, list of lost properties or other damage; x) reason of delay to file the complaint, if happened, xi) corroborate fact by witness, if possible etc. 

 

Then the magistrate will administer an oath of the complainant and the witness (if any) and subsequently testify them to satisfy himself/herself about the real prospect of occurrence of the incident. At the end, the magistrate will record the matter and take their signatures on it. If it is proved latter that the complaint was fake, frivolous or vexatious then the complainant will be prosecuted by that magistrate. 

Nonetheless, if any applicants file an application by mentioning the above matters in writing on white paper then the application will be granted instantly and there is no other formality to examine him/her to substantiate his/her claimed fact. After taking cognizance of such complaint the court will record it in register and put a complaint registered case number on it. Hence it is also called as Complaint Registered (CR) case.

Oppositely, if the magistrate is not satisfied with the evidences produced before him/her or if the informant is failed to establish prima facie of his/her allegation then the court can dismiss such an application. However, the applicant can file a revision application to the sessions judge court/High Court Division (HCD) within sixty days to get remedy against that decision.

Consequences of taking cognizance: After taking cognizance the concerned magistrate can serve summons to the accused to appear before it to defend the allegations or alternatively it may issue warrant to arrest. If the matter is involved with commission of a cognizable offence then the magistrate can direct the police to take the matter as a FIR. After getting such an order the police will has to record the matter as an Ezahar and initiate other necessary actions immediately. 

On the opposite side, if it is a non-cognizable matter then the magistrate may order the police to investigate about the truthiness of the allegation. In that case the police will have same power as cognizable offence while investigating the matter. After completion of the investigation, police can submit final report due to lack of actuality of the fact.

In that circumstance, after satisfying the fact the informant can file naraji petition against such final report or can apply for further investigation to the court. However, the magistrate himself/herself can inquire to testify the matter or may direct to conduct such judicial inquiry by his/her subordinate officer for further information. In addition, he/she can order local respectful peoples to conduct necessary inquiry to bring out the originality.

Significant points to remember: It should be kept in mind that State will not involve in your complaint registered case at initial stage. State may be involved after getting direction from the court to take the matter as an Ezahar. Hence, the State will neither conduct your case from the beginning nor bear any cost to proceed the case which is normally occurred in a general registered case. 

Furthermore, if the complainant is absent in hearing or failed to establish his/her accusation before the court then the matter will be dismissed instantaneously. However, in that case the complainant can lodge a revision application to reverse the decision before the court of sessions judge or to the HCD. 

Concluding remarks: Hence, do not be worried when police will refuse to take your case, rather law opens alternative door to seek justice in magistrate court. This provision confines police’s sole power and provides relief against their arbitrary act. You are fully entitled to take shelter of this provision in any vulnerable situation. In reality, in our motherland most of the poor, powerless and illiterate litigants are not always be able to supersede the police by taking shelter of magistrate court due to numerous reasons. Hence the State should take proper steps to create more accessible justice system and also aware them about their legal rights. 

Published in the Daily Star's Law & Our Rights page (P. 12) on 12.05.2015.