Legal Options.... February 2013.Htm

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Legal options....

Sunday, 3 February 2013

WHEN FALSE FIR IS REGISTERED

WHEN FALSE FIR IS REGISTERED; OR WHEN FALSE FIR ISANTICIPATED TO BE FILED BY ANY PERSON; AND WHERE

PURSUANT TO SAID FALSE FIR, ARREST IS ANTICIPATED – THEN

DEPENDING UPON THE PECULIAR FACTS OF EACH CASE,

FOLLOWING STEPS MAY BE TAKEN

http://commonlaw-sandeep.blogspot.in/2013/10/offences-acts-and-omissions-

evidences.html

(i) A letter 1 may be recorded to the concerned Police station where the false FIR is

filed, with a copy to Superintendent of Police or Commissioner of Police, stating therein

that a false FIR is filed against “me” and advising the Police authority that in case the

Police intends to arrest the Person named in the allegedly false FIR, then they should

scrupulously / strictly follow the due process of law as contained u/ss 157(1),

41(1)(b)(i)(ii), 41(2) r/w section 60-A of CrPC, 1973; and also strictly adhere to the

guidelines framed by SC in the Joginder Kumar case. The said SC guidelines were thus

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issued by all DGP of each State to all the Police stations in the State, on the specific

directions of the Supreme Court in the said Joginder Kumar case in 1994. Rules in

respect of arrest of women are contained in section 46 of CrPC, 1973.

(ii) Obtaining Anticipatory Bail2 from Sessions court or High Court u/s 438 of CrPC,

1973; and it is advisable to seek alternative prayer in the Anticipatory Bail Application (in

case Anticipatory Bail is refused by the Sessions / High Court) that in case the Police

intends to arrest the person/s named in the FIR, the Police shall scrupulously / strictly

follow the due process of law as contained u/ss 157(1), 41(1)(b)(i)(ii), 41(2) r/w section

60-A of CrPC, 1973; and also strictly adhere to the guidelines framed by SC in the

Joginder Kumar case

(iii) In lieu of Application for Anticipatory Bail or where Anticipatory Bail is refused, a

Writ Petition3 in the respective High Court under Article 226 of Constitution of India

may be filed, seeking a Writ of Mandamus, that, in the light of Article 21 of the

Constitution of India, which guarantees that No person shall be deprived of his life and

“personal liberty”, except according to the procedure established by law, and thereby the

HC directing the Police authorities, not to mechanically arrest on mere filing of FIR and

Police to scrupulously follow the due process of law as contained in sections 157(1),

41(1)(b)(i)(ii), 41(2) r/w section 60-A of CrPC, 1973 and strictly adhere to the guidelines

framed by SC in the Joginder Kumar case, in case the Police intends to arrest the

Petitioner (the person named in the FIR).

(iv) An application u/s 156(3)4 or complaint u/s 2005, to Judicial Magistrate /

Metropolitan Magistrate, against those Police officers if they have “knowingly”

registered false FIR / or have falsely arrested / or if are falsely prosecuting the case,

alleging therein your complaint that said Police officer have committed the offence

defined u/ss 218 and 220 or 342 of IPC, 1860, as the case may be. Nevertheless, a

regular FIR 6 can also be lodged against the said Police officers u/s 154.

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(v) An Application u/s 4827 of CrPC, 1973 may be preferred, before respective High

Court, for High Court in the exercise of their inherent powers, to quash the said false

FIR.

(vi) Where, during the pendency of section 482 Application in the High court, if the

charge sheet is filed by the Police before the competent Magistrates court, the

concerned person, may either seek the quashing of charge sheet7, or, may file a

discharge Application8 (in warrant cases only) before the concerned Magistrates court

u/s 239 or 245 of CrPC, 1973. Where the case is committed to Sessions Court, then the

discharge Application can be filed before the Sessions Court u/s 227 of CrPC.

(vii) It is a criminal offence u/s 182 and 211 of IPC, 1860 to knowingly make a false

complaint / accusation and register a false complaint against any person. In such cases

the innocent person cannot register FIR or make complaint to Magistrates court against

those persons who have filed false Complaint.

In such cases, as far as offence u/s 182 is concerned, a complaint9 can be made to the

Police officer to whom false complaint has been made, or complaint may be made to an

authority higher to the concerned Police officer, and the concerned Police officer or the

higher authority, is empowered to file the case in the Magistrates Court against the

person who has made false complaint to the Police.

Where the offence is alleged to have committed u/s 211 of IPC, but the matter did not

reached the Court of law for trial and proceedings / investigation terminated, then, a

direct Complaint u/s 20010 or Application u/s 156(3)11 of CrPC, 1973, can be made

before the Magistrates court concerned against those persons who have made false

charge of offence.

Where, in pursuance to said false complaint, criminal proceedings before the Magistrates

Court / Sessions Court have been initiated, then, an Application12 u/s 340 read with



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section 195 of CrPC 1973, may be preferred before the said Magistrate / Sessions court,

against those persons, praying therein for Magistrates / Sessions court to refer the said

offence of false accusation to the appropriate / competent Magistrate Court of

jurisdiction. (IPC section 182: False information, with intent to cause public servant to

use his lawful power to the injury of another person. IPC section 211: False charge of

offence made with intent to injure)

However, aforesaid two section 182 and 211 preferably be invoked only after (a) wherethe Police before / after registering FIR, has terminated the investigation on the

ground of falsity of complaint, or (b) where FIR is quashed by the HC, or (c) where if

the trial Court has discharged the Accused or has acquitted the Accused, and no Appeal

is preferred against the acquittal. However, Application invoking sections 182 and/or 211

should be invoked keeping in mind the limitation period provided u/ss 467 to 473 of CrPC,

1973.

(viii) where the Trial Court acquits the person against whom false FIR / Complaint ismade, Compensation may be sought u/s 250 of CrPC, 1973, from that Trial court, against

the persons who have knowingly filed false FIR / complaint.

(ix) A Complaint13 may be made to Commissioner of Police / Superintendent of Police

against the concerned Police Officer of the concerned Police Station,

seeking disciplinary proceedings for "Misconduct" / Malicious prosecution.

http://thepracticeoflawjalan.blogspot.in/2012/11/public-service-jurisprudence.html

(x) A Civil Suit14 for exemplary damages can be filed for the “Malicious prosecution”

against the complainant and / or against the Police officers concerned. (Pls see Article

74 of the Limitation Act, 1963).

(xi) Complaints against police officers of and up to the rank of Deputy Superintendent of

Police, may be made to “Police Complaints Authority”15. The said authority may be

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situated at the Office of the Superintendent of Police of the concerned district or

Commissioner of Police of the concerned metropolitan city. The said authority is

constituted pursuant to Order of the Supreme Court in the famous Prakash Singh’s case,

in the year 2006.

(xii) Complaints against Superintendent of Police or Commissioner of Police may be

made to “Police Complaints Authority”16. The said authority may be situated at the

Office of the Director General of Police of the concerned State. The said authority is


in the year 2006.

Note: In every case where Application u/s 156(3) or Criminal Complaint u/s 200 of

CrPC, 1973, may be preferred, the said Application or Complaint may also be preferred

“Orally”, instead of in writing, before the competent Magistrate Court. [Section 2(d) of

CrPC, 1973]

Related Links

Sr.

No.

Nature of Remedy Link

1 Letter to concerned

Police station

http://legaldraftsjalan.blogspot.in/2015/02/letter-to-

police-stn-to-follow-due.html

2 Anticipatory Bail u/s

438 of CrPC, 1973,

in the Sessions /

High Court

3 Writ Petition

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4 Application u/s

156(3) for the

offences u/ss 218,

220 and 342 of IPC,

1860

5 Criminal Complaint

u/s 200 for the

offences u/ss 218,220 and 342 of IPC,

1860.

6 FIR for the offences

u/ss 218, 220 and

342 of IPC, 1860

7 Application u/s 482

before High Court

8 DischargeApplication u/s 227 /

239 / 245 of CrPC,

1973

9 Complaint before for

the offence


u/s 200 for the

offence u/s 211 of IPC, 1860

11 Application u/s

156(3) for the

offence u/s 211 of

IPC, 1860

12 Application u/s 340

r/w 195 of CrPC,



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1973, for the

offences u/s 182 and

211 of IPC, 1860

13 Complaint before

CP / SP against the

concerned Police

officer for

Misconduct

14 Civil Suit for

Malicious Prosection

15 Complaint before

Police Complaint

Authority against the

concerned Police

officer

16 Complaint before

Police Complaint

Authority against the

CP / SP for their

alleged inaction

Legal Prescriptions (Index)

http://thepracticeoflawjalan.blogspot.in/2012/04/legal-options.html

Sentence of Caution

http://thepracticeoflawjalan.blogspot.in/2012/11/sentence-of-caution.html

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Labels: Legal Options

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WHEN POLICE NEGLECTS TO INVESTIGATING

THE CASE

WHEN POLICE NEGLECTS TO INVESTIGATING THE CASE

(i) Writ Petition1

under Article 226 of Constitution of India, may be made to therespective High Court, thereby HC directing the Police to make thorough investigation,

or directing the State Govt. to refer the case to an independent agency like CBI or CID

for thorough investigation.

(ii) Where, the Police authorities are being duly furnished of all the evidences against the

accused persons, and yet they are not filing the Police Report u/s 173 of CrPC, 1973, a

Writ Petition2 under Article 226 of Constitution of India, may be preferred before

concerned High Court, for directing the Police to file Police Report.

(iii) An Application u/s 156(3)3 as aforesaid, before the Judicial Magistrate /

Metropolitan Magistrate, for directing the Police to carry out proper investigation and file

Report; or complaint4 u/s 200 before Judicial Magistrate / Metropolitan, for Hon’ble

Magistrate to cause an Inquiry u/s 202 into the case himself or may direct an

Investigation by a particular Police officer as the Magistrate thinks fit.

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(iv) An FIR 5 u/s 154 or Application6 u/s 156(3) or complaint7 u/s 200 of CrPC, 1973,

can be made before Judicial Magistrate / Metropolitan Magistrate against those Police

officers u/s 213, 214, 217, 221 of IPC, 1860, who have deliberately and dishonestly

neglecting to investigate the case.

(v) A Writ Petition8 may be filed in respective High Court for seeking damages /

compensation, if the “inaction” of the Police in investigating the case has resulted in

frustration of “life and liberty” of a person, guaranteed under Article 21 of Constitution

of India.

(vi) A civil suit9 for seeking damages may be filed in the District Court / High court, if

the “inaction” of the Police has directly resulted in manifest loss of any property.

(vii) A Civil Suit10 for exemplary damages can also be filed for the Irregular exercise of

powers / acts and omissions of Public authorities / Public officials, allegedly in the

pretence / pretext / colour of provisions of an enactment. (Pls see Article 72 of the

Limitation Act, 1963)

http://thepracticeoflawjalan.blogspot.in/2012/04/kinds-of-suits-that-can-be-filed-list.html

(viii) A Complaint may be made to Commissioner of Police / Superintendent of Police11

against the concerned Police Officer of the concerned Police Station for dereliction of

duty, seeking disciplinary proceedings for "Misconduct".http://thepracticeoflawjalan.blogspot.in/2012/11/public-service-jurisprudence.html

(ix) Complaints against police officers of and up to the rank of Deputy Superintendent of

Police, may be made to “Police Complaints Authority”12. The said authority may be




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in the year 2006.

(x) Complaints against Superintendent of Police or Commissioner of Police may be made

to “Police Complaints Authority”13. The said authority may be situated at the Office of

the Director General of Police of the concerned State. The said authority is constituted

pursuant to Order of the Supreme Court in the famous Prakash Singh’s case, in the year

2006.

(xi) Section 166A(b)14 now, expressly makes a punishable offence if the public servant

concerned knowingly disobeys, to the prejudice of any person, any other direction of the

law regulating the manner in which he shall conduct such investigation.

Note: In every case where Application u/s 156(3) or Criminal Complaint u/s 200 of

CrPC, 1973, may be preferred, the said Application or Complaint may also be preferred


CrPC, 1973]

Related Links

Sr.

No.


1 Writ Petition

praying for

Investigation by

CBI / CID

2 Writ Petition for

directing Police to

file Police Report



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contemplated u/s

173 of CrPC, 1973

3 Application u/s

156(3) for directing

the Police to carry

out proper

Investigation and

file Report4 Criminal Complaint

u/s 200 of CrPC,

1973

5 FIR against those

Police officers u/s

213, 214, 217, 221

of IPC, 1860

6 Application u/s156(3) against

those Police

officers u/s 213,

214, 217, 221 of

IPC, 1860


against those Police

officers u/s 213,214, 217, 221 of

IPC, 1860

8 Writ Petition for

damages

9 Civil Suit for

damages

10 Civil Suit for



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damages for

irregular exercise

of powers by the

concerned Police

officer

11 Complaint before

CP / SP against the

concerned Policeofficer for

dereliction of duty

http://legaldraftsjalan.blogspot.in/2015/02/complaint-

bef-police-comp-auth-cp-sp_98.html

12 Complaint before

Police Complaint

Authority against

the concerned

Police officer

http://legaldraftsjalan.blogspot.in/2015/02/letter-to-cji-

to-take-su-moto-contempt_64.html

http://legaldraftsjalan.blogspot.in/2015/02/letter-to-cj-to-hc-to-take-su-moto.html

13 Complaint before

Police Complaint

Authority against

CP /SP for their

inaction


bef-police-comp-auth-dgp_59.html

14 FIR / Applicationu/s 156(3) /

Criminal Complaint

u/s 200 for the

offence of Section

166A(b) of IPC,

1860

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Sentence of Cautionhttp://thepracticeoflawjalan.blogspot.in/2012/11/sentence-of-caution.html

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WHEN POLICE ILLEGALLY ARREST


First of all it must be stated that powers for effecting arrest are ordinarily conferred

upon Police officers only (except in exceptional cases, arrest may be effected by

Magistrate / Private persons), that is to say, Police officers who have powers to

investigate the case and powers to file the Police Report including Chargesheet u/s 173

of CrPC, 1973.

(i) The procedure for effecting arrest has been set out in section 41B of CrPC, 1973.

The said section is reproduced below.

Section 41B: Procedure of arrest and duties of officer making arrest:

E li ffi hil ki h ll

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Every police officer while making an arrest shall

(a) bear an accurate, visible and clear identification of his name which will facilitate easy

identification;

(b) prepare a memorandum of arrest which shall be

(i) attested by at least one witness, who is a member of the family of the person arrested

or a respectable member of the locality where the arrest is made;

(ii) countersigned by the person arrested; and

(c) inform the person arrested, unless the memorandum is attested by a member of hisfamily, that he has a right to have a relative or a friend named by him to be informed of

his arrest.

(ii) Whenever Police intends to arrests any person, it is also obligatory upon police,

among other things (a) to clearly inform him about the offence he is alleged to have

committed – section 50 of CrPC 1973; (b) the Police are obliged to immediately inform

to any of the friend or relative of the arrested person about the arrest of that person and

the place of his custody – section 50-A (c) if the offence / offences alleged is/aredefined as bailable offences, then, Police must inform the accused person about his right

of immediate release on furnishing of Bail (Surety) (section 50-A) or by executing a

Bond (Section 441 of CrPC, 1973) in lieu of Bail. The Police may also release a person

on deposit of certain sum of money for accused person to arrange for the surety.

(iii) The arrested person or his relative / friend may record a Letter 1 to the concerned

Police station, stating therein about the position of law as regards to restrictions in

powers of arrests, and that the Police officer effecting arrest is not following themandate of law as set out in sections 157(1), 41(1)(b)(i)(ii), 41(2) r/w section 60-A of

CrPC, 1973) and also knowingly disregarding the guidelines framed by SC in the case of

Joginder Kumar versus State of U.P., 1994, for effecting arrests, and thereby advising

the Police to release the arrested person forthwith. Also, it is within the powers of Police

u/s 169 r/w 59 or section 437(2) of CrPC, 1973, to release the person who is arrested, on

the execution of Bail Bond by the said person.

2



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(iv) An oral / written complaint2 may be made before local Magistrates court within

whose jurisdiction the person is arrested, thereby requesting to take immediate

cognizance of the complaint, and alleging that the Police has wrongfully arrested the

person and the Police has thereby committed the offence of (a) contempt of the

Supreme Court in willful disobedience to guidelines framed in respect of effecting arrest;

(b) sections 220 and 342 of IPC, 1860; and praying the Magistrate to issue search

warrant for the arrested person and be produced before him immediately. Section 97 of

CrPC, 1973, empowers the Magistrates court to issue search warrant for personswrongfully confined.

(v) The SC binding guidelines, before making any arrest, is provided in the case of

Joginder Kumar versus State of U.P.1994 (4) SCC 260 : AIR 1994 SC 1349.

(vi) The relative / friend of the arrested person may file a Writ Petition of Habeas

Corpus3 before respective High Court for the alleged illegal arrest and seek immediate

release of the person illegally arrested.

(vii) Any person who is arrested must be produced before the nearest Judicial

Magistrates court within 24 hours of his arrest (Section 57 of CrPC, 1973). When the

arrested person is produced before the Judicial Magistrates, the arrested person or his

relative / friend may present a simple Bail Application4, before concerned Magistrates

Court and inform the Magistrate, among other things, that the said arrest is patently

illegal, for being effected without following the due process of law and in wilful disregard

/ defiance of guidelines framed by SC in the case of Joginder Kumar versus State of

U.P., 1994, and may pray for immediate release, on Bail on furnishing of Surety5 or

execution of Personal Release Bond; and where court insists for surety, then, some

reasonable time may be sought for furnishing of surety and release may be sought on

depositing of reasonable amount of cash in lieu of furnishing surety thereof.

(viii) Where it is alleged that Police has inflicted violence, beaten / tortured the accused

person in the Police custody than the same must be informed to the Magistrate before



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person in the Police custody, than the same must be informed to the Magistrate before

whom the accused is produced and Magistrate should be requested to register offence

u/s 330, 331 of the IPC and section 29 of the Indian Police Act 1861 against the

respective Police officer for causing violence / beating / torture; and also requesting the

said Magistrate Court to make a reference to the High Court concerned that the said

Police officer must be hauled up for Contempt of the Court, i.e. Contempt of the SC

strictest guidelines given in DK Basu Vs State Of West Bengal case5.

Section 330 and 331 of IPC provide for punishment for voluntarily causing hurt and

section 29 of Indian Police Act 1861 provides for imprisonment for offences including

unwarranted personal violence to any person in his custody.

In the light of section 176 of CrPC 1973, Magistrate is bound to investigate every death

in Custody. Even it is mandatory for police to inform State Human Rights Commission or

National Human Rights Commission about every custodial death.

Failure to implement strictest of guidelines on law of arrests and on Tortures as laid

down by the SC in DK BasuVs State of West Bengal will render any Policeman to be

hauled for Contempt of Court in any High Court of the Country.

(ix) Where the Bail is refused by the Magistrate, thereby committing the accused to

either Police custody or to Judicial custody (Jail), then, immediately, a fresh Bail

Application6 may be filed before Sessions Court or before High Court u/s 439 of CrPC.

(x) However, where the arrested person is not produced before the Magistrates court

within 24 hours of his arrest, then such confinement becomes illegal beyond 24 hours,

and, an oral / written Application7 may be made u/s 97 of CrPC, before any magistrate

court and requesting / praying the Magistrate to issue search warrant for the said person

unlawfully confined, or Writ of Habeas Corpus may be preferred before the concerned

High Court.



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(xi) If one cannot go to High Court for Writ Petition of Habeas Corpus, then, one can

(a) personally approach or make an Application to State Human Rights Commission, (b)

National Human Rights Commission8; (iii) make an Application to the Registry of the

Supreme Court9; (iv) to respective High Court10, stating therein about the said illegal

arrest effected, in willful disregard of the directions given by the SC in Joginder Kumar

case, seeking their intervention for the release; followed by an RTI Application11 to the

aforesaid four authorities, on steps taken by them in pursuance to said RTI Application.

Life and Liberty clause under RTI may be invoked to obtain information within 48 hours.

(xii) Writ of Mandamus12 may be preferred before respective High court seeking

exemplary Damages / Compensation from respective State Government, but only after

the High Court in the Writ of Habeas Corpus, or the concerned Magistrates Court had

released the accused, and recorded in its / his Order that the said arrests was illegal, or

the concerned Human Rights Commission comes to the conclusion that the said arrest

was illegal.

(xiii) A Contempt Petition (Civil)13 before respective High court can be filed alleging

therein that the Police illegally arrested the Petitioner in willful disobedience / defiance to

SC guidelines framed in aforesaid Joginder Kumar case.

(xiv) A Letter Petition may be recorded to the Chief Justice of the concerned High

Court

10

/ Chief Justice of India, Supreme Court

9

, requesting them to take Su MotoCognizance of the alleged contempt of the Court, and the copy of said letter may be sent

to the concerned Police officer. RTI application11 may be made to the said concerned

High Court / Supreme Court, to know if the said Court has taken Su Moto cognizance of

the said Letter Petition.

(xv) An FIR 14 to Police, or complaint before Magistrates Court u/s 156(3)15 or u/s

20016 of CrPC 1973 ma be preferred against the concerned Police officer ho ha e



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20016 of CrPC, 1973, may be preferred against the concerned Police officer who have

illegally arrested and has thereby have committed the offence defined u/ss 220 and 342

of IPC 1860.

(xvi) A Civil Suit17 for exemplary damages can be filed for the Irregular exercise of

powers / acts and omissions of Public authorities / Public officials, allegedly in the

pretence / pretext / colour of provisions of an enactment. (Pls see Article 72 of the

Limitation Act, 1963).

http://thepracticeoflawjalan.blogspot.in/2012/04/kinds-of-suits-that-can-be-filed-list.html

(xvii) A Complaint18 may be made to Commissioner of Police / Superintendent of Police

against the concerned Police Officer of the concerned Police Station,

seeking disciplinary proceedings for "Misconduct".

http://thepracticeoflawjalan.blogspot.in/2012/11/public-service-jurisprudence.html

(xviii) Arrests during Public protests – Ordinarily, all the detainees are released on their

execution of Personal Release (PR) Bond in the Police station. No money is required to

be deposited while executing the saidPR Bond.

(xix) Police Raids at Parties: There could be indiscriminate / mindless arrests by Police

during such raids at parties. However, the procedure for arrests remains the same as

stated hereinbefore. The persons present at such “Party” should enforce the concerned

Police officer to adhere to laws of the land before effecting any arrest or detention.

(xx) Complaints against police officers of and up to the rank of Deputy Superintendent

of Police, may be made to “Police Complaints Authority”19. The said authority may be




in the year 2006.

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(xxi) Complaints against Superintendent of Police or Commissioner of Police may be

made to “Police Complaints Authority”20. The said authority may be situated at the

Office of the Director General of Police of the concerned State. The said authority is


in the year 2006.

Note: In every case where Application u/s 156(3) or Criminal Complaint u/s 200 of CrPC, 1973, may be preferred, the said Application or Complaint may also be preferred


CrPC, 1973]

Related Links

Sr.

No.


1 Letter to concerned

Police station about

the factum of illegal

arrest being carried

out


police-that-arrest-is-illegal.html

2 Complaint toMagistrate, for him

to duly exercise his

powers u/s 97 of

CrPC, 1973

http://legaldraftsjalan.blogspot.in/2015/02/complaint-to- judicial-magistrate-us-97.html

3 Writ Petition for

Habeas Corpus

4 Bail Application

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20/23


pp

before Magistrates

Court u/s 439 of

CrPC, 1973

5 Surety Application

6 Bail Application

before Sessions /

High Court7 Complaint before

Magistrates Court

8 Complaint before

State / National

Human Rights

Commission


nhrc-shrc-about-illegal-arrest.html

9 Letter Complaint to

Chief Justice of theHigh Court

http://legaldraftsjalan.blogspot.in/2015/02/letter-to-cj-

of-hc-to-take-su-moto_28.html

10 Letter Complaint to

Chief Justice of

India of the

Supreme Court

http://legaldraftsjalan.blogspot.in/2015/02/letter-to-cji-

to-take-su-moto-contempt_53.html

11 RTI Application

before HC / SC to

know action takenon representation

made to them

12 Writ Petition for

damages for illegal

arrest

13 Contempt Petition

(Civil Contempt)

14 FIR for the

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14 FIR for the

offences u/ss 220

and 342 of IPC,

1860

15 Application u/s

156(3) for the

offences u/ss 220

and 342 of IPC,1860


u/s 200 for the

offences u/ss 220

and 342 of IPC,

1860

17 Civil Suit for

damages for illegalarrest

18 Complaint before

CP / SP for alleged

Misconduct of the

concerned Police

officer


against-police-officer.html

19 Complaint before

Police ComplaintAuthority against

the concerned

Police officer


bef-police-comp-auth-cp-sp_23.html

20 Complaint before

Police Complaint

Authority against

the CP / SP for


bef-police-comp-auth-dgp_76.html

their failure to take

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22/23


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