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Tackling Police Oppression: Refusal and Recourse

By Apoorv Pandey February 18, 2015

Power tends to corrupt, and absolute power corrupts absolutely
-By: John Emerich Edward Dalberg-Acton
PART-I

What is the Difference between General Diary and First Information Report?

General diaries (GD) are records which maintain information about all the cases that are brought to the police station. Every working of the police with reference to a reported crime is recorded in the general diary. The Hindi word for general diary is “Roznamcha”. This diary has a wide ambit. It contains a record of all the events taking place within the jurisdiction of the police station. It is important from the perspective of internal reporting. The substance of the FIR viz., the informant, the names of the accused and the eye witness are to be entered into the general diary.[1] However mere non recording of substance of FIR in general diary is not fatal.[2]

General diary has several names. It is often called “Station Diary” or “Daily Diary” in some States. Unlike other records, G.D. does not find place in Code of Criminal Procedure, 1973. However it does find a place under the state Acts. The general diary in respect of information for offences of non-cognizable nature under the provision of Section 155 of the Code of Criminal Procedure is one of the important indices of police performance at Thana/Outpost level.

The Police Act, 1861 obligates police officials to maintain a G.D.[3] Police Manuals are other sources which points towards maintenance of diaries. Section 44 of the Police Act states that the police stations are obligated to record information regarding all the complaints, charges preferred, names of arrested persons, name of complainants, weapons or property recovered among other things.

FIRs are recorded in a separate book/register. It is only the substance (more like summary) that makes it to the general diary. In other words, the two can coexist. Moreover, unlike FIR, general diary does not require signature of the complainant.

One of the most differentiating features of an FIR and general diary is of unique annual number. Since FIR book is allotted a unique annual number, it becomes easy to keep a strict control and track over it. Track of FIRs being filed everyday can be kept easily by simple supervision. Apart from this, FIR has an element of accountability attached to it. The police officers are obligated to send the copy of FIR to the concerned Judicial Magistrate.

Scope of accountability in general diary is however less as it contains a multitude of other details. A copy of the general diary is not sent to the Judicial Magistrate having jurisdiction over the police station, though its copy is sent to a superior police officer. Therefore keeping strict supervision and control over it is not possible. Each and every FIR recorded in the general diary by the police officers might not be looked into by the Magistrate. Keeping a constant vigil on general diary in the police station is not possible owing to enormous amount of other details mentioned therein.

Further, it would not be correct to assert that the general diary necessarily contains information as to offences or accidents. If the State Act or the Manual mandates, it could contain several other transactions also.

For example the general diary may contain-

  1. Details of the arrested persons
  2. Information of accused sent to the Magistrate
  3. Visit of Senior officers
  4. Details of officials sent to maintain peace and tranquility
  5. Departure and arrival of Police staff
  6. Handing over or taking over of charge
  7. Details of law & order duties
  8. Gist of FIR’s filed during the day

Data maintained in the general diary is in chronological order. Both FIR and general diary are filled up simultaneously and it is quite apparent that both of them have each other’s reference number. But the usual practice is to record the complete complaint in the FIR book first and then copy the gist of important points in to the general diary.

However in the absence of FIR, the general diary can play a significant role. Where an entry in the general diary discloses the commission of a cognizable offense, it can be treated as FIR in appropriate cases. [4] The contents of the FIR can only be used to discredit the informant and not to discredit the eye witness on the basis of omissions in G.D entry. In other words, both can be brought before the court as evidence. But both have their limitations.

How is an FIR different from a G.D.?

FIR is the first information report filed with the police regarding commission of an offense. Unlike general diary, it does not disclose the gist of the matter, but the whole incident. It is in the witness dictated format. It will include everything the witness knows about the incident and the connecting circumstances. But mere information received through a phone call by a police officer without any details of the accused or nature of injuries caused to the victim cannot be treated as FIR.[5]

How does a person know whether he has to file a G.D. or an FIR?

It is a very common misconception that the G.D. is maintained with respect to a particular class of offences. However this is not the case. In fact it is advisable for the victim/informant not to get anything entered in the General Diary on his own. Individuals should rather persuade the police officers to lodge a FIR if they have a reason to believe that the case is cognizable. Cognizable offences are those offences where the police official is empowered to arrest without a warrant.[6] Where there is a doubt as to the applicability of the provisions of Section 154 of Cr.P.C. and Section 44 of the Police Act, 1861 it can be safely asserted that Section154 will prevail. In other words where the offense is being capable of being entered both into G.D. and FIR book, the FIR book should be given priority. This reasoning is derived from the “Doctrine of Repugnancy”.[7] Cr.P.C was enacted under Entry 2 of the Concurrent List of the Seventh Schedule and the Police Act, 1861 was enacted under Entry 2 of the State List of the Seventh Schedule to the Constitution. In case of conflict, the subject in the Concurrent List will prevail.

But at the same time it must not be forgotten that the general diary can be used by the police to make entry of non-cognizable offences. Non-cognizable offences are those in which the police officials are obligated to obtain a warrant from the appropriate Magistrate. In the absence of separate diary dealing with registry of cases under Section 155 of the Cr.P.C, it is the only option for the police.

…………………………………………………………………………………………………..

PART-II

The law on GD and FIR as it exists on paper is what is discussed in Part-I. Let’s move into the next aspect of law; i.e. how it plays out in our practical lives.

What should a person do in case of refusal by police to lodge an FIR?

Police atrocities are a common phenomenon in India. This outrageous practice has ravaged criminal justice system not only in small towns but also in metropolitan cities. One of the most common forms of this atrocity is refusal to lodge a FIR on the request of victim/person concerned. The worst form of injustice a victim can face is the refusal to lodge a FIR.

It is an understood fact that the non-immediate registration of FIR leads to scope for manipulation by the police which affects the right of the victim/complainant to have a complaint immediately investigated upon as soon as the allegations are made known to the police. Further, delay in lodging FIR can also be utilized by the defendant as a ground for countering prosecution.

The FIR is an important formality as it is the threshold where the victim/complainant initiates criminal action against the accused. In other words it sets the process of criminal justice in motion.[8] It is not in the hands of the police to lay down the law. FIR is a public document and even an accused is entitled to a certified copy.[9]

Indian laws provide adequate safeguards against refusal of lodging FIR. It is worth mentioning that the police officials are duty-bound to register FIR in cognizable offences.[10] Whether the information provided falls under Section 154 or not is a question of law and a police officer cannot use his discretion in this matter.[11] Even lack of territorial jurisdiction cannot be taken as a ground to refuse registration of FIR.[12] Where the police is reluctant to lodge a FIR the victim can resort to sending the information to the Superintendent of Police.[13] This information can be communicated by a letter.[14] The Superintendent thereby can cause investigation himself or direct the police officials subordinate to him to investigate the matter.[15] Complainant can also approach the Magistrate to order the police to conduct an investigation into the matter. In fact where the Superintendent of Police fails to take adequate action, concerned person should approach the Magistrate.

If the police show a passive attitude towards the directions of the Magistrate secured by the complainant, then the complainant should act vigilantly. The standard protocol should be to look for other alternatives without wasting time. If the police officer has refused to register a FIR in spite of order of the Magistrate, the complainant should approach the Magistrate with appropriate application. If the investigating officer is not making the investigation, then also the aggrieved person is free to approach the Magistrate seeking necessary direction.[16]

Provisions stipulated under Section 154 are mandatory in nature and the concerned police officer is duty-bound to register the case on the basis of information disclosing cognizable offence.[17] The relevant section obligates the police officer to reduce the information provided by the complainant orally. Further, he is also obligated to read over such information so recorded to the complainant.

Fighting the hard fight

Over time it has been seen that even the chair exercising superiority over the police has fallen into corrupt hands. Influential persons subjugate the law either by bribing or by abusing the powers entrusted on them by virtue of their position. Reluctance of these authorities to hear the plight of the victim/informant is a bolt from the blue. But it is an undeniable fact that even higher authorities can abuse their position. It can easily thrust individuals into a bureaucratic nightmare. But it is advisable to fight tooth and nail against these authorities. Badgering superior authorities is a worthwhile effort as this is one’s best bet for securing justice and burying the head in the sand acts as a provocateur to such authorities. Abuse of power has often been observed even amongst judicial authorities (Magistrates). Classic example could be that of Ravneet Garg’s case where the Chief Judicial Magistrate, (Gurgaon) had been accused of murdering his wife.[18] It has been alleged that the police has shown a non-cooperative attitude in this case. The complainant has gone to the extent of asserting that the police officials were actively involved in this case.

Though it would be prejudicial to comment anything on the abovementioned case at this stage, yet this could be used as a good example where the victim/family members might fail to make use of the three recourses available. That is to say, police being subordinate to Superintendent of Police will not take any action without his assent as it is a critical case. And Superintendent of police being a person acting in close quarters with judicial persons would be reluctant to go against them and thereby abide by their orders. Needless to mention that filing a complaint to the magistrate is out of the question. Situations where the accused involved are ruling the roost are indeed tough nuts to crack.

These are the typical cases where the High Courts and the Supreme Court act as the last resort. These infallible and incorruptible sentinels can render proper help and compel the investigative and subordinate judicial authorities to perform their obligations by issuing the writ of mandamus[19]. Indian Constitution provides necessary safeguards for such situations.[20] Higher judicial authorities holding the reins can successfully crack the whip and knock sense into authorities unwilling to perform their function.

[1] Rakesh Kumar v State 1996 CriLJ 607 (DB) (Del)

[2] Amar Singh v State 1996 CriLJ 3848 (DB) (Del)

[3] See Section 44 of the Police Act, 1861

[4] Superintendent of Police, CBI v Tapan Kr. Singh AIR 2003 SC 4140

[5] Ravishwar Manjhi v State of Jharkhand AIR 2009 SC 1262

[6] See Section 2(c) of Code of Criminal Procedure, 1973

[7] See Article 254 of the Indian Constitution, 1950

[8] Hasib v State of Bihar AIR 1972 SC 283

[9] Shyam Lal v State of U.P. 1998 Cri LJ 2879 (DB) (All)

[10] See Section 154 (1) of Code of Criminal Procedure, 1973

[11] Hem Raj v State of Punjab AIR 2003 SC 4259

[12] Satvinder Kaur v State AIR 1999 SC 396

[13] See Section 154(3) of Code of Criminal Procedure, 1973

[14] Ibid

[15] Supra, Refer note 5

[16] Smt. Reba Dey vs The State Of West Bengal & Ors W.P. No. 1717 (W) of 2011

[17] Ramesh Kumari v State of NCT AIR 2006 SC 1322

[18] See http://www.ndtv.com/gurgaon-news/gurgaons-chief-judicial-magistrate-a-suspect-in-wifes-murder-528944 as visited on 29 January 2015.

[19] Writ of mandamus obligates state organs to do or not to do something. Nonperformance of functions or omissions while obeying to such writ constitutes contempt of court.

[20] See Article 32 and 226 of the Indian Constitution, 1950

TAG: General diary , first information report , judicial magistrate , police atrocity , cognizable offence , police station , FIR , accountability of police , code of criminal procedure , the police act , section 44 of the police act , refusal to register a complaint , station diary , daily diary , unique annual number , difference between GD and FIR


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