Law in Motion: FIRs- Miscellaneous
Police cannot take back an FIR - it can be done only in the courts. The complainant/victim may appear in the court and express the intention to compound the offence, either to the judge or to the lawyer of opposing party or to the court officials.
Withdrawal of FIR:
Once an FIR has been registered i.e., the PS, the O/C has given it a GDE number and an FIR number (and filled up IIF Form-1), neither the complainant nor the police station nor any supervisory officer of police can cancel the FIR.
The only courses of action are (i) getting it quashed by High Court or (ii) the police filing a final report to the magistrate that either no crime was committed or made out or no evidence could be gathered for the crime. The judge/magistrate will carry out an appraisal of the police report or petitioner’s petition on merits and take appropriate decision on cancellation/non-cancellation of FIR.
If the case is at the stage of trial in court, the accused can seek discharge from the culpability (on merits of the individual case) or if the complainant is not joining the prosecution proceedings despite all efforts by courts or prosecution.
Therefore from a common man’s point of view, any promises by the policeman/investigation officer (IO) or counsel about the FIR being closed or the FIR being withdrawn should be viewed with suspicion. Only the magistrate can close the matter. Of course, the IO can, genuinely tell you if there is no evidence or lack of sufficient evidence. In a worst case scenario, the IO may also take a bribe to weaken the case or suppress the evidence or facts to shield the accused. However, such acts are crimes by themselves and sought to be avoided.
Compromise of Cases:
Police cannot take back an FIR - it can be done only in the courts. The complainant/victim may appear in the court and express the intention to compound the offence (compounding - समझौता in hindi), either to the judge or to the lawyer of opposing party or to the court officials. This is also loosely called ‘compromise’.
In crimes, it is the State which takes over the role of prosecutor from the victim to ensure that the offenders are brought to book. Therefore, withdrawal from prosecution by way of compromise, is a fairly limited option in serious criminal cases – at least not without the intervention of the State or he magistrate.
There is a separate provision in the CrPC for compounding of offences. Suffice here to say that for offences which are compoundable – the compounding can be done either (a) by (usually) the victim or (b) by the victim /person effected with the permission of the court/magistrate in whose court the offence is pending for trial.
The victim/complainant/effected person can give in writing or orally to the magistrate/judge for compounding the case. Then the case will then be considered closed at your request.
Usually, police has no role in these matters but police does intervene a lot to get matters compromised. This alternative dispute-resolution mechanism exists and may probably need to be encouraged too, given the slow speed of the criminal justice system but then the police could increasingly assume the judicial role which may not always be prudent.
Besides compounding, the CrPC also provides (Chapter XXIA) for Plea-Bargaining in certain cases and lays down detailed procedure. As a thumb rule, plea-bargaining is not applicable to serious crimes where punishment imposed can be more than 7 years.
Lok-Adalats are another alternative dispute resolution mechanism where the victim/complainant can resolve cases quickly.
Do I pay money to Police for Compromise:
No payment by way of fees or penalty or fine or services rendered has to be paid to any policeman or the police station or any police officer for effecting a compromise or facilitating a compromise or assisting in compromise if a case.
It is illegal and could be either considered as a bribe (he may be weakening the case by overlooking evidence to help someone) or extortion by the police (if the police officer is forcing the payment to be made).
The parties may, settle for a monetary compromise but it is (usually) directly between the parties. Sometimes, the court may intervene to facilitate a compromise e.g. in marital disputes of accident cases. But usually the police a have a very limited role.
How do I check whether an FIR has been closed or is open without going to the police station?
If you know there is FIR against you, try to get in touch with IO.
Depending on which State you are in, the FIR status could be available online. One could simply go to that PS or the District/State Police website (if one exists) where FIR was lodged and check the status. If the police have completed the investigation and a final report has been filed with a magistrate (charge-sheet or untraced), you may even be able to access the closure report as well.
The other more circuitous method is by filing an RTI application with police or with the Court. However, if your name figures as a witness or accused, you will sooner or later get a summons from the court – usually served by a policeman – although now courts have also allowed summons and warrants to be served by email or whatsapp etc too.
What can I do when the police don't arrest the accused already booked in FIR?
There is a misconception, a wrong impression or assumption by ordinary people that once the FIR is registered against a person(s) the accused charged in the FIR must be arrested. Please DO NOT pressurise police to arrest.
In fact this is the single most abused reasons for abuse of powers by police. In most cases, now, it is the public or media or even the political influence or extraneous factors which may be the reasons to force police to effect arrests – of suspects or accused person during the process of investigation.
There can be many reasons for not arresting the accused immediately or never -
- That the allegations i.e. the complaint is false;
- There is inadequate evidence in support of involvement;
- Arrest is mainly for following purposes:
- To interrogate the arrested accused for re-construction of the crime and collect relevant evidence by recovery of incriminating articles like weapon of crime, property etc.
- To prevent the accused/suspect from tampering with evidence or interfering in investigation;
- To ensure that the accused/suspect does not flee or if he is a ‘flight risk’- during investigation;
- That the accused/suspect attends court proceedings regularly;
- To prevent the accused from further indulging in criminal acts – especially if the accused is a hardened criminal or accused of extremely serious crimes.
If the accused or suspect can prove or satisfy the court that he does not fall in any of the categories as above (3(a) to 3(e)), he can either not be arrested or be granted bail.
Arrest is usually the discretion of the IO. So long as the accused co-operates in the investigation, the IO may not need to arrest the accused person.
At the end of investigation, the IO will take the accused or ask him to remain present before the Court. Thus, the mere lodging of an FIR does not mean that an arrest would be the immediate or natural fall-out.
Pressure to Arrest:
Just because there is a power, just because there is a discretion, it does not mean that it should be exercised. Police officials are trained professionals and are expected to act professionally. Even the power to arrest should be exercised judiciously – only where necessary.
As per data available with NCRB, a large number of persons in Indian jails are Under Trial Prisoners (UTPs) – persons who have been arrested but are still awaiting a pronouncement of a conviction or acquittal. Most such UTPs are in jails at the instance of the police and investigation agencies.
The UTPs in the jails can also be divided into various categories:
[A] During Investigation Stage – Before 60/90/180 days -
- Arrested Suspects – for investigation and interrogation;
- Arrested Accused – against whom substantial evidence exists – statements of witnesses or forensic or material evidence;
- Arrested Accused/Suspects – who have been granted bail but are not able to satisfy pre-bail conditions imposed by way restrictions or sureties or bail amounts or other conditions;
[B] After Completion of Investigation – after 60/90/180 days -
- Arrested Accused – If investigation is completed and police files final report (charge-sheet) within the stipulated period, the accused could remain in the jail for an extended period;
- Arrested Accused – After filing of charge sheet, the accused has been denied bail by courts – he could be in jail till he gets bail.
Statistics reveal that an overwhelming number of UTPs in jails await completion of trials. While there is a pressure on police to complete investigation in a time-bound manner – 60/90/180 days (at least to ensure that the accused stays on in judicial custody for a prolonged period), there is very little commensurate pressure on the courts/magistrates and prosecution to complete trials in a time-bound manner.
This leads to a false impression that arrest (or unfortunately torture) by the police – whether for investigation (police remand) or pending trial (whether as un-charge-sheeted accused or otherwise) is the punishment which is actually meted out to the criminals. This brings additional pressure on police to effect arrests- irrespective of whether a final determination of guilt takes place, or when it takes place.