How to initiate a Criminal Case: Know all about it - iPleaders (2024)

This article has been written by Adv. Sarthak P. Shetty, practicing at the Sessions Court and High Court at Mumbai. It talks about the procedure involved in initiation of a Criminal Case.

The procedure for filing a Report or Complaint and the subsequent trial and other aspects of criminal law in relation to investigation, bail, etc. are enshrined in the Code of Criminal Procedure, 1973 (CrPC). In this note, I shall discuss the procedure for filing of a Criminal Complaint and what steps may be taken by Complainant pursuant to filing of a Complaint.

1. First of all it is important to understand that a criminal offence falls in two categories viz. cognizable offence and non-cognizable offence. The First Schedule of the CrPC provides a list of offences and classifies each offence as either of cognizable or a non-cognizable nature.
2. A cognizable offence, is an offence in which a police officer may arrest an Accused without a warrant.

A non-cognizable offence is an offence in which a police officer has no authority to arrest without a warrant.

3. Reporting an offence of a cognizable nature

a. First Information Report (FIR)

Whenever an offence has been committed the aggrieved person or any person having knowledge of commission of the offence may approach the police station for recording the said information. In case the offence is of a cognizable nature, it is the duty of the officer in charge of the said police station to reduce the said information in writing in the form prescribed by the State Government. Further, the said officer is also duty bound to read over the contents of the said writing to the Complainant and take the signature of the Complainant. The said writing taken down by the police officer in the prescribed format is called a First Information Report (FIR). A copy of the said FIR has to be given to the Complainant forthwith free of cost.

b. It is important to note that in case the Complainant is a woman who has been subjected to an offence of acid attack, sexual offences, etc.

only a woman officer can record her statement and further protective measures have also been laid down.

c. Refusal to record information

On many occasions, it has been observed that the police officers are reluctant to take any record of the offence. In such cases, the aggrieved person may send the substance of the information to the Superintendent of Police (SP). If the SP is satisfied that the information discloses commission of a cognizable offence, then he may investigate the case himself of direct a police officer subordinate to him to investigate the case.

d. Jurisdiction of police station

Another reason or an excuse for police officers to not take the information is that the offence has not been committed within the jurisdiction of the police station.

On plain reading of the provisions and as held by the Apex Court, a police officer is duty bound to register the case on the basis of information disclosing a cognizable offence. If at the time of registration of FIR, it becomes apparent that the crime was committed outside the jurisdiction of the police station, then the officer shall register a ‘Zero’ FIR and ensure that the FIR is transferred to the concerned police station.

It is pertinent to note that refusal on the part of the police officers to record information of a cognizable offence may attract penal action under the Indian Penal Code against such officers.

e.Investigation

On receipt of information of a cognizable offence, the police has powers to investigate the matter even without the order of the Magistrate. In case the investigation is not being carried out diligently or in a biased manner then appropriate application can be made before the concerned Magistrate.

4. Reporting an offence of a non-cognizable nature

1. In case of information in relation to a non-cognizable, the officer in charge of a police station within the limits of which said offence has been committed shall enter the contents of the said information in a book as prescribed by the State Government and refer the said Complainant to the Magistrate.
2. It is pertinent to note that the police officers do not have any authority to investigate or take any action in relation to a non- cognizable offence without such order of the relevant Magistrate. Pursuant to the order of the Magistrate directing investigation, the officer shall have the same powers of investigation as he has in case of a cognizable offence. However, he shall not have the power to arrest the Accused without warrant.
3. In a case where the officers do not file the said information of non- cognizable offence with the Magistrate seeking his permission or order to investigate, the Complainant may send follow up letters to the said police station where the information was given. Further, the Complainant may also file a private complaint before the concerned Magistrate.

5. Filing a complaint before the Magistrate

1. A Complainant may also directly approach the appropriate Magistrate who has jurisdiction over the said offence. The Magistrate shall examine the Complainant and the witnesses present along with the Complainant on oath. The said statements of the Complainant and the witnesses are reduced in writing and their signatures are taken on the same.
2. If the Magistrate is of the opinion that an offence is made out, he may issue a process against the Accused. In common parlance this is a notice directing the Accused to keep himself present before the Magistrate.
3. In some cases the Magistrate may direct further enquiry in the matter before the process is issued against the Accused.

6. Role of the Complainant after registering offence

Once the Complaint has been filed the officers of the concerned police station carry out the investigation and if an offence is made out a chargesheet is filed in the said case. During the process of investigation, the police officers record statements of relevant witnesses and collect relevant documentary evidences. The role of the person aggrieved by the offence is to visit the police station and given his statement to the police. Further, he may also suggest names of other witnesses who may have vital information in relation to the offence. At the conclusion of the investigation the police officers may file a C-summary report before the Magistrate when they form an opinion that the offence is not made out or the dispute between the parties is civil in nature. When an offence is made out the police officers may file a chargesheet before the Magistrate and the trial will go on. At the stage of trial the Complainant shall be summoned by the Court for recording his evidence.

LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join: