An detailed guide on what to do when someone has a malafide FIR lodged against them
The Judiciary in India has always championed for a fair but strict judicial system where every man has the right to be heard and punishments equal for every person irrespective of their social standing, caste, creed, sex etc. One of the most important components of this robust judicial criminal system is the FIR or the First Information Report. The First Information Report (FIR) is lodged in Criminal cases under Sec 154 of CrPc before the police. The FIR can be lodged only in case of Cognizable Offences defined in Sec 2(c) of CrPc and not for Non-cognizable offences.
In this article we will talk about FIRs and complaints both genuine and maliciously filed and how one can get remedy from the Indian Judiciary in a case where they have an FIR registered against them.
What happens when you are Arrested or Detained?
When you are arrested, you are taken into custody by a law enforcement officer. This means that you are not free to leave the scene. Without being arrested, you can be detained, however, or held for questioning for a short time if a police officer or other person believes you may be involved in a crime. For example, an officer may detain you if you are carrying a knife in a hospital. Whether you are arrested or detained, you do not have to answer any questions except to give your name and address and show some identification if requested.
What Rights Do you have?
Whether you are an adult citizen or non-citizen, you have certain rights if you are arrested.
Before the law enforcement officer questions you, he or she should tell you that:
- You have the right to remain silent.
- You have a right to have a lawyer present while you are questioned.
- If you cannot afford a lawyer, one will be appointed for you by the State.
- These are the rights guaranteed by the Constitution of India.
Once I Am Told My Rights, Can I Be Questioned?
You can be questioned, without a lawyer present, only if you voluntarily give up your rights and if you understand what you are giving up. If you agree to the questioning, then change your mind, questioning must stop as soon as you say that you want a lawyer. You may be required to give certain physical evidence. For example, if you are detained for carrying a sword in a hospital, you will have to give a satisfactory explanation as to why you brought that sword to the hospital. Once you are booked, meaning your arrest is written into official police records and you are photographed, you have a right to make and complete three telephone calls.
When should you consult a Lawyer?
You should contact a lawyer as soon as possible especially if the charge against you is of a serious offence. The lawyer also can advise you or your family or friends on the bail process.
When Is An Arrest Warrant Used?
Usually a warrant is required before you can be taken into custody in your home. But you can be arrested at home without a warrant if fast action is needed to prevent you from escaping, destroying evidence, endangering someone's life or seriously damaging property.
The warrant must be signed by a magistrate or judge, who must have good reason to believe that you, whom the warrant names, committed a crime.
Once an arrest warrant is issued, any law enforcement officer in the state can arrest you - even if the officer does not have a copy of the warrant. Generally, there is no time limit on using a warrant to make an arrest. Resisting an arrest or detention is a crime. If you resist arrest, you can be charged with a misdemeanor or felony in addition to the crime for which you are being arrested. If you resist, an officer can use force to overcome your resistance or prevent your escape. The officer can even use deadly force if it appears you will use force to cause great bodily injury.
When can you be released?
If, during the questioning and before a charge is filed, the police are convinced that you have not committed a crime, they will give you a written release. Your arrest then will be considered a detention and not recorded as an arrest.
What action can one take by a person who has lodged a FIR against him?
An FIR can often be used by a person holding a grudge or vendetta against someone in order to implicate them in false cases. What action can such person then take to protect themselves from such malicious charges which can often destroy their reputations?When an FIR is lodged against a person with malafide intentions to falsely implicate them in a criminal case, then the person can either:
- File an application to quash the frivolous FIR under Section 482 of the CrPc
Under this Section, the various High Courts have been vested with the inherent powers to pass any order which is necessary in order to-Prevent abuse of process of Courts; or to secure ends of justice to the people. If a trial is allowed to proceed; or where the accused would be harassed unnecessarily if the trial is allowed; or when prima facie it appears to Court that the trial would likely to be ended in acquittal, the High Court can exercise its inherent powers to quash the FIR filed against the person.
Any person who feels they have been targeted by a malicious FIR can file an application under Sec 482 of CrPc on the following grounds-
- The Acts or omission on the basis of which the FIR has been lodged does not constitute an offence.
- The offence for which the FIR has been registered against the accused has never happened;
- The FIR contains merely baseless allegations without any reasonable ground to prove an offence against the accused.
Stages of action to escape from a malafide FIR or complaint
- Before the police files the charge sheet– Where an application has been filed by a person under Sec 482 of CrPc for getting the FIR quashed, The High court can quash such false FIR if it goes against the principles of Natural justice and can cause a grave miscarriage of justice to the victim. The court usually reprimands the officer who filed the charge sheet in such instances.
- After the police files the charge sheet – If the charge sheet has been filed on back of a malafide FIR, and the case is assigned to a sessions judge, the accused can file a discharge Application under Section 227 of CrPc, in order to get discharged from the offence charged with on the basis of false FIR against him on the following grounds–
- That the charge sheet contains no prima facie evidence against the accused in respect of the offence with which it is charged.
- The trial cannot be commenced against the accused because the evidence on record is insufficient
- Inadmissible Evidence as per the Indian Evidence Act
- After the trial commences – If the discharge Application under Section 227 of CrPc filed by the accused has been rejected by a Sessions court, and the charge is framed and the trial is commenced then Application under Sec 232 of CrPc can only be made for the Acquittal of the Accused.|
Supreme Court Guidelines on Quashing of an FIR:
- Where the FIR lodged against the accused does not contain any prima facie evidence against the accused in respect of the offence with which it is charged.
- Where the allegation made in the FIR does not disclose any Cognizable Offence against the accused.
- Where the Allegations made in the FIR and the evidence collected by the police on the basis of such evidence does not disclose commission of any offence that constitutes a case against the accused.
- Where the offence disclosed in the FIR is a non-cognizable offence in such a case, the police cannot start the investigation without the order of the Magistrate u/s 155(2) of CrPC.
- Where the Allegations made in the FIR are unbelievable, absurd that there is no ground to initiate the proceedings against the person.
- Where the FIR has been lodged maliciously or proceedings are instituted wrongly, in order to falsely implicate a person in a false case to satisfy his personal grudge.
Other alternatives against false complaints and FIRs
A writ petition under Article 226 of the Constitution of India can be filed by a person who feels a false FIR has been filed against them. If the High Court finds out that great injustice has been done by such an FIR to such a person, it can order to quash it. The High Court can issue writs of-
- Mandamus - Writ of Mandamus can be issued against a police officer who has lodged such a false FIR directing him to perform his duty in a lawful manner;
- Prohibition– The Writ of Prohibition can be issued to the Subordinate Court which is conducting the trial of a person which is based on false FIR lodged against such Accused, in order to Stop such criminal proceedings.
Punishment for People filing false FIRs and complaints
Any person who files a false FIR against someone can be held guilty under Sec tion 182 & 211 of the IPC.This however is possible only when the accused had applied for quashing of an FIR in the High Court and the High Court had indeed quashed the FIR, thereby discharging the accused person.
- Section 182 of IPC allows the aggrieved person to file a complaint with the police officer with whom such FIR has been lodged or to his senior police officer, who is empowered to file a case against such police officer. The Punishment for filing fake FIRs is an imprisonment period which may extend to 6 months or/with fine which may extend to 1000 rupees
Can a police officer be held liable for deliberately filing an FIR against an individual?
There have been various instances in news over the last few years where a person has been harassed and tortured by the police by deliberately or negligently lodging false FIR against the person. In such an instance, the Accused person can file an application under section 156(3) or a Complaint under section 200 of the CrPc against such police officer for his/her malafide actions. The police officer filing such a false FIR can be held guilty under Section 167, Section 218, Section 218 or Section 220 of the IPC
Section 167 of IPC – Public servant framing an incorrect document with intent to cause injury
When a police officer has a duty to prepare a document and he prepares that document in such a manner with the intention of causing injury to any person then he is liable under Sec 167 of IPC. The punishment for this offence is imprisonment which may extend to three years, or fine or both.Sec 218 - when a Police Officer frames an Incorrect Record with the Intention of saving a person from punishment
When any public servant has a duty to prepare any document and he prepares that document in such a manner with the intention-
? To cause injury to any person; or
? To protect any person from legal punishment; or
? To save any property from forfeiture under any law
The punishment for this offence is imprisonment which may extend to three years, or fine or bothSection 220- Commitment for trial or confinement by person having authority who knows that he is acting contrary to law
Any person by misusing his legal authority, wrongfully commits any persons for trial or wrongfully confines such person would come within Sec 220 of IPC and would be punished with imprisonment which may extend to seven years, or with fine, or with both.
Defamation when a false FIR is filed against a person
Often, fake FIRs and complaints cause great harm to the reputation of a person. Media trials, societal barbs totally negate the innocent until proven guilty principle. Therefore, where the victim has suffered significant harm to his reputation in society or psychological harassment they may file a complaint of defamation against the person who lodged false FIR against him under Section 499 of the IPC. Any person found guilty of such defamation can be imprisoned upto 2 years with a fine or both.
Remedies against a genuine FIR filed against an individualAnticipatory Bail:
So far we have seen the remedies available to a person who feels a malafide FIR has been filed against them. But what happens when a person knows an FIR is going to be filed against them?
Section 438 of the CrPc defines Anticipatory Bail. A person can apply for Anticipatory bail only when it is a case of a cognizable and non-bailable offence. If an FIR has been lodged against a person in order to implicate him in a false case, he again has the option to apply for the Anticipatory Bail under Sec 438 of CrPC. The Person can apply to the High Court or Court of Sessions for the grant of Anticipatory Bail. The Court can grant the Anticipatory bail taking into consideration following factors-
What happens when Anticipatory Bail is Rejected –
- Nature and gravity of the offence with which the accused is charged;
- Whether the accused had undergone any previous conviction
- Where the accusation has been made with the intent of causing injury or implicating a person in a false case.
The High Court or Court of the session may grant Anticipatory bail or may reject it. Where the Anticipatory bail has been rejected by the High Court or Court of Session, the police is free to arrest the accused.What happens when Anticipatory Bail is given –
The High Court or Court of Session may grant the Anticipatory bail on the basis of these following conditions being fulfilled by the accused
- The Applicant should make himself present for interrogation by a police officer whenever required
- The Applicant shall not make a threat, promise to any person in order to prevent him from disclosing any facts to the court or any police officer
- Restrictions on leaving the country without the court’s permissions
A fair judicial system is built in a way that while it guarantees justice and fairness to people who have been wronged, it also must have important safeguards to ensure that it is not misused to harm the reputation of another individual who is innocent. Today, the number of cases has increased considerably where false or frivolous FIRs are filed by a person in order to wrongly implicate some person in a false case or to take revenge. Generally, such false FIRs are filed in cases of Dowry, Rape, Cruelty against women, Financial frauds etc. Thankfully, our current legal system has adequate safeguards to protect the sanctity of law, judicial procedure but also the reputation of an individual who may get entangled with malafide complaints and FIRs.
#tags: FIR, Section154, cognizableoffence, noncognizableoffence, Writs, Quashing, FakeFIRs