Why Knee Jerk Mr. Lawyer, at union Home Minister P. Chidambaram?s circular to all States to file all complaints at police stations should be made into FIRs, after all police officer is not an adjudicating officer!
After all Police officer is an Executive of State to implement law enforcement, as a public servant and not a Judge please!!
By G. Balakrishnan, PhD (Economics Legislations)
(Bombay High Court Mediator, a Counsel at Supreme Court of India)
Let us see Cr. P C 154,156, 157,173,190and IPC sections 182,211.
U/s.190 IPC- Cognizance of offences by Magistrates ? (2) Chief Judicial Magistrate empowers Magistrates of Second class to ?take cognizance under sub.sec(1)?Subject to provisions of Ch XIV, any Magistrate of First class, and any Second Class specially empowered in this behalf u/s/s(2) may take cognizance of any offence:
(a) Upon receiving a complaint which constitute such offence :
(b) Upon a police report on such ?facts?;
(c) Upon information received from any person other than police officer, or upon his own knowledge, that such offence has been committed.
(Union territory of Chandigarh Amendment ? 190A?Cognizance of offences by Executive Magistrate ?
?Cognizance of any specific offence ??vide Punjab Act 22 of 1983(w.e.f 27.6.1983)
Note 1: No of ?false cases? will in fact arise though some lawyers like Mr. Majeed Memon, or Human Rights Activists like Dr. Avisha Kulkarni may feel so? ( as reported in TOI dated 30.12.2009). In fact the provisions are already in place ??any body files ?false case? will get punished under same law. So Mr. P Chidambaram, an eminent Supreme Court lawyer himself is not wrong in issuing the circular to all State Governments to ensure all police stations should accept cognizable complaints as FIR, even if claimed so by a complainant, after all police man, before arresting a person will have to investigate himself and if he finds it is false he can go the magistrate to issue arrest warrant against such a person, on the basis of police report, yes may be a little more work to be performed by police but he cannot avoid by becoming an illegal adjudicator as to decide whether to admit a complaint as FIR or not? That is the job of Magistrate after all Magistrate courts are there in the most places.

So I do not find that kind of knee jerk is not needed at all, when the law is already in place there. One important thing is to be noted is policeman or the State concerned wants to avoid State police?s sacred duty to the citizens.
About 68.67 lakh persons were arrested in 2007. There are about 1.5 crores trials show there are wrong kinds or manipulated FIRs, and delays definitely would be likely on account of indecent kind of adjournments available for many lawyers for asking though law prohibits irrational and delay tactic based adjournments in most of Magistrates and Sessions Courts and some in High Courts for there are confusing kinds of Affidavits filed making the delivery system chocking. Now High courts are trying to use moderating technique of Mediators are being appointed so that fixed kind of commitments as overheads are avoided.
Adhit Shirodkar?s view Home Minister?s circular can?t be implemented without amending the law statute. Another view advanced is an FIR for every complaint would nullify between cognizable and non cognizable offences, after all, this Ld. advocate also should know police officer is not an adjudicator like a judge or if he is why there is a need of Magistrates at all. It is to be remembered the police officer is an executive of government just to implement laws, as a public servant. How a servant of citizens can become an adjudicator. It is an irony English is not properly understood perhaps! There is a difference between ?Master and Servant?.
Citizen is a Master and public servant is a servant of citizen. Legislators are just representatives of citizens functioning in a representative capacity. So Legislators though trying to keep themselves out of public servant definition but the person who draws their salaries and remuneration automatically become public servants is the principle of public servant.
Public prosecutor is not a public servant as he is not drawing his remuneration from tax payer directly, but the public servant is not able to really function without to help of public prosecutor, though he is expected to do the function. His inability is substituted by a mechanism of appointing an advocate as public prosecutor, after all no Advocate member of a Bar Council can become an employee but the Advocate is a power of Attorney holder by means of a ?Vakkalat Nama? of a public servant or state. If an Advocate chooses to become a servant naturally he should surrender his License called ?Sannad? to Bar Council.
In another case law S.D. Soni v/s. St. of Gujarat (1991) Cr. L J 330(SC), ?The Magistrate has no power to take cognizance of an offence on the basis of private complaint that resulted in submission of report u/s 173(Report of Police officer on completion of investigation). Consequent upon reference made under s. 156(3) ?any magistrate empowered u/s190 (cognizance of upon offences by Magistrate) when once he has accepted the police officer report has to close the proceedings).

This is when read it amounts to a fact that it is not mandatory on Magistrate to accept the police officer?s report as a basis for his judgment, it is clear that till Magistrate accepts, is the rider, the Police officer?s report, it is subject to variance by the magistrate.

S.182 ?IPC ? ?false information, with intent to cause a public servant to use his lawful powers to the injury of another person?shall be punished with imprisonment of either description for terms which may extend to 6 months or with fine which may extend to Rs.1000/- or both(substituted by Act 3 of 1895, Sec 1 for the Original section).

Sec.211-IPC ? ?false charge of offence made with intent to injure?if such, criminal procedure be instituted on a ?false charge? of an offense punishable with death (substituted Act 26 of 1955, sec 117 and Schedule for ?Transportation of life? w e f 1.1.1956) or imprisonment for seven years or upwards, shall be punishable with imprisonment of either description for a term which may extend to seven years and shall be liable to fine?.

Sec.154 ? CPC, information in cognizable offence (2) ?A copy of information as recorded under sec 1 shall be given, free of cost, to the informant (3). Any person aggrieved by refusal on the part of officer in charge of police station to record information referred to s/s(1) may send the substance of information in writing and by post, to the Superintendent of Police concerned who if failed that such information discloses the commission of offense shall either investigate the case himself, or direct an investigation to be made by any police officer subordinate to him, in the manner provided by the code and such officer shall have all powers of an officer in charge of police station in relation to the offense .(case law: Manoj v/s. St. of MP (1999(2) Crimes SCC 715: AIR 1999 SC 1403): 1999(3) Crimes329(SC) ? ?FIR requires to contain basic prosecution case?.


Another case law: ?two sheets of Station House diary torn off and another sheet is pasted. Case registered on the version given by accused to Police Sub-Inspector. ?Credence cannot be given to police version that case registered as F I R. (St. Of Kar v/s. K. Yerrappa Reddy, 1999(4) Crimes 171(SC).
Note: This difference is to be activated and Union Home Minister?s circular is already in conformity with existing sections. So there is no power with police officer to adjudicate, as adjudicator is only the Magistrate only. (Ends)