Private Complaint vs. FIR: Understanding Criminal Procedure in Pakistan

What is First Information Report (FIR):

An FIR is a first information report that a Station House Officer is duty-bound to register under section 154 of CRPC when information regarding the occurrence of a cognizable offense is conveyed to him. It is important to note that SHO is under a legal obligation to register an FIR even if the information is conveyed to him by an aggrieved person or some relative of that aggrieved person. (2004 YLR 1299; PLD 2000 LAH 364).

Moreover, the jurisdiction of the concerned police station is an important factor in registering an FIR. If the cognizable offense has occurred outside the jurisdiction of the relevant police station, then SHO can refuse to register an FIR, In such case, the informant ( the person who approached the police station about the alleged crime) can ask the police helpline about that police station which has jurisdiction over the respective occurrence of offense. But when the alleged offense comes under the jurisdiction of the police station, then Section 154 CRPC and Rule 24.1 of Police Rules, 1934, require the police to write down the information received from the informant regarding the occurrence of a cognizable offense and enter it into the FIR register. If the police show laxity and delay in registering an FIR, then it would create “reasonable doubt” in the judge’s mind regarding the occurrence of the alleged crime, which in turn harms the rights of the victim and aggrieved party.

Legal Remedies In Case Police Refuse to Lodge an FIR:

There are cases where police, on one pretext or another,  deliberately refuse to register an FIR which aggravates the woes of an aggrieved party. However, the law doesn’t leave those people without a remedy and they have the right to approach a Superintendent of Police (SP) to make a complaint. This requirement is very strictly followed in the judicial practice of Pakistan and The National Judicial Policy Making Committee has stated in recent years that petitions under Section 22-A and B of the CrPC will not be accepted if the Super Intendent Police has not been approached first amid the police’s inability to record a FIR. This condition has been subject to smear criticism. Once this stern requirement is met, the aggrieved person can file a petition under sections 22-A and 22-B for the registration of FIR before an ex officio Justice of Peace- who is a session or additional session judge. Once a petition is filed, the detailed facts and circumstances of the case are presented before the session or additional session judge, and if he is satisfied that a cognizable offense has occurred, then he issues a direction to the concerned SHO for the registration of an FIR. In some circumstances, he orders the petitioner to file a private complaint before a magistrate under section 200 of CRPC [2007 PLD SC 539].

In the case of Attiq ur Rehman vs SHO Police Station University Campus, Peshawar, 2020 P Cr LJ PESH 1155, the court noted that:

Also read What you can do if Police don’t register your F.I.R?

“ Neither the provisions of Section 22-A and B of CrPC, nor Article 199 of the Constitution, are meant to provide a shortcut to the interested parties, but are to be invoked when police functionaries are avoiding to perform legal duties.”

The honorable Lahore High Court has repeatedly stated that an ex-officio Justice of the Peace’s only task under Section 22-A(6)(i), CrPC, is to determine whether the information given by an aggrieved party forms a cognizable offense. If, based on the circumstances provided, he or she believes a cognizable offense has been established, the only order he or she can give to the appropriate SHO is to file an FIR without delving into the truth of the information in question. Any other interpretation of the sections in question would contravene the entire system of CrPC, which is not authorized.

Private Complaint, When and Where Is It Filled?

 A private complaint has been defined  under Section 4(1)(h) of CrPC in the following words:

“an allegation made orally or in writing to a Magistrate, with a view to his taking action under CrPC that some person whether known or unknown, has committed an offense, but it does not include the report of a police officer.”

The definition shows that for a valid and legal complaint, it is essential that there must be:

 i. An allegation (oral or written) that some person (known or unknown) has committed an offense,

ii. Made to a Magistrate, and

 iii. With the object that he should take action under the law; but a complaint does not include the report of a police officer.

A private complaint is filed before a magistrate under section 200 of CRPC either orally or in writing, who then takes cognizance of the complaint under section 190(1)(a). After the submission of a complaint, the magistrate conducts a hearing and takes cognizance of the issues.

 He must also have to examine upon oath both the complainant and the witnesses, along with the substance of the complaint. For the magistrate to take cognizance under Section 190 of the CrPC, the facts must be in a written document signed by both the magistrate and the complainant. However, the examination upon oath is only necessary where the private complaint has been orally filled. If a private complaint is filed in writing, the magistrate is no longer required to examine it. Section 200(a) of the CrPC states that if a complaint is made in writing, the magistrate may transfer it to another magistrate under Section 192 of the CrPC or transmit the complaint to the Court of Sessions without examination. Subsection (c) of Section 200 CrPC further states that if the original magistrate (before whom the private complaint was filed) has already examined the private complaint and transferred the same to a new magistrate under Section 192, the new magistrate is not required to re-examine the complaint. Main objective of Section 200, Cr.P.C. dealing with examination of the complainant was to protect the public from false, frivolous and vexatious complaints filed against them in Criminal Courts

The other statutory provisions under which further proceedings are to be conducted are sections 201-205.

Initiation of Inquiry By Magistrate:

To determine the veracity of the complaint, the magistrate has the authority under section 202(1) of CrPC to either initiate an inquiry about the relevant facts of the case or to direct police or justice of the peace to investigate the matter. Moreover, section 202(3) further provides that the person chosen by the magistrate to inquire into the circumstances of the case has the same powers as the officer-in-charge of a police station. The only difference is that an officer-in-charge can arrest without a warrant whereas the person designated for the purpose by a magistrate cannot, unless the magistrate appoints himself or herself to verify the veracity of the complaint. Following the conclusion of an inquiry, the magistrate may reject a private complaint under Section 203 of the CrPC if he believes there are no grounds to move further with the complaint.

Conversely, if after the conclusion of the investigation, the court believes that there are sufficient grounds to proceed with the complaint, the magistrate must ‘issue process’ (i.e., issue a summons or warrant) under Section 204 CrPC. Subsection (1) of the same provision states that if the case falls under Schedule 2 of CrPC, the court must first issue a summon.

If, under Schedule 2, the matter is a ‘warrant’ case rather than a summons case, the court may issue either a warrant or a summons to compel the accused to appear in court.

Right of Bail Under CrPC:

The main purpose of bail is to ensure the accused person’s reappearance in subsequent proceedings and at the same time, protect his personal freedom and liberty so that his legal rights are not violated. Under section 4(b) of  CrPC, offenses are bifurcated into bailable and nonbailable categories. In nonbailable offenses, bail is at the discretion of the court and cannot be claimed as a matter of right, whereas in bailable offenses, the accused possesses an inherent right to obtain bail. The bail-in bailable offenses is granted under section 496 of CrPC when an accused is arrested without a warrant and must be released on bail against a surety. Jurisprudence of Pakistani courts demonstrates that neither the court nor the police has the power to deny bail in such offenses as its the indispensable right of the accused. [PLD 1995 SC 35].

To the contrary, bail in non-bailable offenses is granted under section 497 of CrPC and depends on the court’s discretion. Moreover, a delay in the conclusion of the trial which is not attributable to the accused can turn a non-bailable offense into a bailable one.[2007 YLR 2079]

Bail in FIR Cases:

The process of obtaining bail in cases of FIR registration is difficult compared to private complaint cases. In FIR cases,

1. Firstly the accused or their lawyer files a bail application before the relevant court (e.g., Sessions Court or High Court).
2. The court may order the submission of surety bonds and set conditions before granting bail.
3. In non-bailable offenses, the court considers factors like the gravity of the offense, the likelihood of the accused absconding, and whether the accused is a habitual offender before granting or rejecting bail.

Bail Procedure in Private Complaints:

1. Bail in these cases is generally more straightforward because the accused is not usually arrested immediately. Instead, they may be required to submit surety bonds at the outset.
2. The court can issue summons or warrants for appearance. Upon appearance, the accused submits surety bonds for bail if needed.
3. Role of Surety Bonds:
   1. Submitting surety bonds is enough to secure bail in private complaint cases. The bonds act as a guarantee of the accused’s future appearances before the court.

Conclusion:

To sum up the discussion, one can say that a First Information Report is the information registered by the Station House Officer of the concerned police station under whom jurisdiction the alleged crime had occurred. On the other hand, a private complaint is a judicial remedy under section 200 CrPc regarding the prima facie failure of police to register an FIR and seek justice from the court.