CURBING FRIVOLOUS CRIMINAL LITIGATION: NEED FOR AMENDING Cr.P.C.

It has become a regular feature in our country for busybodies to file #complaints in remote corners of the country against #public figures such as film stars, sports persons, politicians, poets, painters etc., on the ground that they had defamed someone, or hurt the feelings of religious group, or that they had even committed #sedition.  The object of filing these complaints appears to be to only gain publicity in the media and harass the public figure.  It is an abuse of the process of law.

As soon as an #FIR (First Information Report) is registered by the #police, it is given wide publicity both in electronic and print media. This results in heated discussions in the news rooms spreading hate and distrust. Ultimately, most of these complaints are dismissed by the Courts.  The registration of these frivolous FIRs calls for an immediate revamp of the Code of Criminal Procedure.

          The registration of more than 100 identical FIRs against Arnab Goswami in a single day in several Congress ruled States of the country, for allegedly defaming Smt. Sonia Gandhi, expose the utter misuse of the provisions of Code of Criminal Procedure Code (Cr.P.C.) and Indian Penal Code (I.P.C).   

          It is a different matter that Arnab Goswami was able to move the Supreme Court immediately and obtain interim orders to prevent the police from taking any coercive measures against him in all the cases except one, and has since been interrogated for several hours in connection with the said alleged offence. 

Subsequently, an FIR was registered against a #SupremeCourt Advocate Prashant Bhushan in Rajasthan on the basis of a tweet posted by him which some retired Army officer had found offensive.  He too had to hurriedly knock the doors of the Supreme Court and obtain orders from the Supreme Court to prevent the police from arresting him.

Several FIRs have been registered against Rahul Gandhi for his remarks against RSS, and Rahul Gandhi is appearing before the concerned courts as accused.  

In the State of Andhra Pradesh an FIR was filed against the then Union Home Minister for failing to honour his promise to provide Statehood  for Telangana and an FIR for  “ cheating ”  was registered.    

Generally,  all the public figures are  fortunately well connected and have easy access to justice therefore they move the High Court / Supreme Court and get the frivolous FIRs quashed.  But even for the well heeled this is a needless mental harassment besides considerable expenditure and waste of time. The complainant,  looses nothing except going to the Police Station for a day or two  to lodge  the complaint.  These type of frivolous cases, are consuming precious time of the Courts. 

          Now, let us examine how far such cases are at all maintainable.    

 Defamation is defined in Sec. 499 of I.P.C.  as under.

“ Sec. 499 Defamation —  Whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason o believe that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter excepted, to defame that person.

Explanation 1 : It may amount to defamation to impute anything to a deceased person, if the imputation would harm the reputation of that person if living, and is intended to be hurtful to the feeling of his family or other near relatives.

Explanation 2 : It may amount to defamation to make an imputation concerning a company or an association or collection of persons as such.

Explanation 3 : An imputation in the form of an alternative or expressed ironically, may amount to defamation.

Explanation 4 : No imputation is said to harm a person’s reputation, unless that imputation directly or indirectly, in the estimation of others, lowers the moral or intellectual character of that person, or lowers the character of that person in respect of his case or of his calling or lowers the credit of that person, or causes it to be believed that body of that person is in a loathsome state or in a state generally considered as disgraceful.

Section 199 Cr.P.C.  reads as follows:

 S. 199. Prosecution for defamation –

(1).     No court  shall take cognizance of an offence punishable under Chapter XXI of the Indian Penal Code (45 of 1860) except upon a complaint made by some person aggrieved by the offence :

          Provided that where such person is under the age of eighteen years, or is an idiot or a lunatic, or is from sickness or infirmity unable to make a complaint,  or is woman who, according to the local customs and manners, ought not to  be compelled to appear in public, some other person may, with the leave of the Court, make a complaint on his or her behalf.

(2).     Notwithstanding anything contained in this Code, when any offence falling under Chapter XXI of the Indian Penal Code (45 of 1860) is alleged to have been committed against a person who, at the time of such commission ,is the President of India, the Vice-President of India, the Governor of a State, the Administrator of a Union Territory or a Minister of the Union or of a State or of a Union Territory, or any other public servant employed in connection with the affairs of the Union or of a State, in respect of his conduct in the discharge of his public functions, a Court of Session may take cognizance of such offence, without the case being committed to it, upon a complaint in writing made by the Public Prosecutor.

(3).     Every complaint referred to in sub-section (2) shall set forth the facts which constitute the offence alleged, the nature of such offence and  such other particulars as are reasonably sufficient to give notice to the accused of the offence alleged to have been committed by him.

(4).     No complaint under sub-section (2) shall be made by the Public Prosecutor except with the previous sanction, —

          a).      of the State Government, in the case of a person who is or has been the Governor of that State or a Minister of that Government;

          b).      of the State Government, in the case of any other public servant employed in connection with the affairs of the State;

          c).      of the Central Government, in any other case.

(5).     No Court of Session shall take cognizance of an offence under sub-section (2) unless the complaint is made within six months from the date on which the offence is alleged to have been committed.

(6).     Nothing  in this section shall affect the right of the person against whom the offence is alleged to have been committed, to make a complaint in respect of that offence before a Magistrate having jurisdiction or the power of such Magistrate to take cognizance  of the offence upon such complaint.

          A Complaint is defined in Section 2(d) of Cr.PC as under:

          “complaint” means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report.

          The procedure for initiating defamation proceedings is that it should be initiated only by the person actually defamed, by giving a sworn statement under Section 200 of Cr.P.C. before the competent Court. 

          Thus it is clear that the Police as such have no right to register any FIR against any person for the alleged offence of defamation.  Even though the law in this aspect is absolutely clear, many Station House Officers all over country have been registering FIRs for defamation filed by busy bodies.  Departmental action should be initiated against the Station House Officer for registering FIRs for the offences of defamation.

In Tamil Nadu 23 defamation complaints were filed in various places against Cinema actress Khushboo for her alleged remarks on pre-marital sex. The complaints were filed against her under Sections 499 and 500 of I.P.C. alleging that her remarks constituted defamation.  The Supreme Court in the year 2010 quashed all the complaints filed against her.

           The procedure of registration of FIRs is contained in Sec. 154 of Cr.P.C. which reads as follows:

Sec. 154.  Information in cognizable cases –

1).      Every information relating to the commission of a cognizable offence, if given orally to an officer in charge of a police station, shall be reduced to writing by  him or under his direction, and be read over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf.

2).      A copy of the information as recorded under sub-section (1) shall be given forthwith, free of cost, to the informant.

3).      Any person aggrieved by a refusal on the part of an officer in charge of a police station to record the information referred to in sub-section (1) may send the substance of such information, in writing and by post, to the Superintendent of Police concerned who, if satisfied that such information discloses the commission of a cognizable offence, 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 this Code, and such officer shall have all the powers of an officer in charge of a police station in relation to that offence.

          As per the present provisions of the Cr.P.C. there is no time limit for the completion of an investigation and therefore, technically speaking, a Station House Officer can keep an FIR pending for several years and summon the so called accused for questioning over a prolonged period of time. The Cr.P.C. in its present form requires radical changes to prevent the harassment of citizens by the police. 

As of today, a Magistrate does not have any control over the investigation and the Court comes into the picture only after the Charge Sheet / final report is filed u/s 173 of Cr.P.C.  Till such time the Court is expected not to interfere in the investigation.  Only after the Charge Sheet is filed the Court can order a further investigation u/s 173(8) Cr.P.C.  except this, the powers of the Court are curtailed up to the filing of the Charge Sheet. 

The Supreme Court of India in M/s. Pepsi Foods Limited and Another Vs. Special Judicial Magistrate and Others held as under:

“It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. Magistrate has to carefully scrutinise the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused.”

          If the Magistrate is expected not to be a silent spectator at the time of the recording of preliminary evidence, it follows that he should also not to be a silent spectator when frivolous F.I.R.s are being registered by the police.

It is time to arm Magistrates / Trial Courts the power to put an end to frivolous and non serious litigation.  This can be done by amending Sec. 203 of Cr.P.C. which reads as follows:

203.   Dismissal of complaint – If, after  considering the statements on oath (if any) of the complainant and of the witnesses and the result of the inquiry or investigation ( if any )  under Section 202, the Magistrate is of opinion  that there is no sufficient ground for proceeding, he shall dismiss the complaint, and in every such case he shall briefly record his reasons for so doing.

          The following amendment may be made to Sec. 203 of Cr.P.C.

Sec. 203 (i):

Notwithstanding anything contained in this Code, it shall be the duty of every Magistrate to examine all the First Information Reports  registered by the Station House Officers under his jurisdiction once in a week.  If the Magistrate is of the opinion that any FIR has been registered with the object of harassing the accused, or for  publicity purposes or other oblique motive or that the complainant has  no specific grievance against the accused, he shall forthwith call upon the complainant to give his sworn statement within a period of 15 days and shall either dismiss the complaint, or take cognizance of the same, without undue delay.  If the Magistrate finds that the complaint has been coming without any reasonable cause he can impose fine up to Rs.5,00,000/-. 

          Necessary amendments have to be brought to Section 250 of Cr.P.C. As per Sec. 250 (2) of Cr.P.C., a Magistrate can direct compensation of an amount by way of a fine which he has empowered to impose against a person who institutes a complaint without a reasonable cause.  The maximum fine that can be imposed by a Magistrate is Rs.5,000/-.  This was fixed in the year 1973.  Our law makers have not bothered to enhance this fine amount even after almost 50 years.  The value of the rupee has fallen down considerably over the last five decades and what was Rs.5000/- (Rupees five thousand) in 1973 would at least be Rs.5,00,000/- (Rupees five lakhs) by today’s standards.  Therefore the fine limit of Magistrates have to be increased drastically.   

          If this is done many frivolous cases will be dismissed at the threshold stage itself and Magistrates should be empowered to impose heavy fines on the frivolous and mischievous complainants.As frivolous cases will be get dismissed within a period of one month at the Trial Court stage itself and there would be no need for the persons named as accused to approach the High Court or Supreme Court seeking the quashing of frivolous FIRs and obtain orders against their probable arrest / harassment by the police. This will also reduce the burden on the High Courts and Supreme Court, where thousands of “quash” petitions are pending in various High Courts seeking the quashing of frivolous F.I.R.s.

          The second category of cases which attract wide publicity in the media are the cases filed by hypersensitive citizens to take offence to certain utterances by some public figures etc.  These cases are registered u/s 153-A of I.P.C. reads as follows:

153-A:         Promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony.

(1) Whoever —

a).      by words, either spoken or written, or any signs or by visible representations or otherwise, promotes or attempts to promote, on grounds, of religion, race, place of birth, residence, language, caste or community or any other ground whatsoever, disharmony or feelings of enmity, hatred or ill-will between different religious, racial, language or regional groups or castes or communities, or

b).      commits any act which is prejudicial to the maintenance of harmony between different religious, racial, language or regional groups or castes or communities, and which disturbs or is likely to disturb the public tranquility, or

c).      organizes any exercise, movement, drill or other similar activity intending that the participants in such activity shall  use or be trained to use criminal force or violence or knowing it to be likely that the participants in such activity  will use or be trained to use criminal force or violence, or participates in such activity intending to use or be trained to use criminal force or violence or knowing it to be likely that the participants in such activity will use or be trained to use criminal force or violence, against any religious, racial, language or regional group or caste or community and such activity, for any reason whatsoever causes or is likely to cause fear or alarm or a feeling of insecurity amongst members of such religious, racial, language  or regional group or caste or community.

          This is another provision of law which is much misused.   FIRs are registered indiscriminately and public figures and citizens hounded by the police on the basis of the said F.I.Rs.  The curious aspect of law, is that, no prosecution can be initiated for this offence without the sanction of the Central Government or State Government.  This is contained in Section 196 (1) of Cr.P.C., which reads as follows:

          196. Prosecution for offences against the State and for criminal conspiracy to commit such offence.

(1) No Court shall take cognizance of-

(a) any offence punishable under Chapter VI or under section 153A, of Indian Penal Code, or 2 Section 295 A or sub section (1) of section 505] of the Indian Penal Code (45 of 1860 ) or

(b) a criminal conspiracy to commit such offence, or

(c) any such abetment, as is described in section 108A of the Indian Penal Code (45 of 1860 ), except with the previous sanction of the Central Government or of the State Government.

          If no court can take cognizance of offence without the previous sanction of the State or Central Government, it is pointless to allow private citizens and busy bodies to file these complaints against their political rivals or public figures or even ordinary citizens.

It is time to amend the process of registering an FIR.  The law has it stands today is that the Station House Officer is bound to register an FIR in respect of any information given to him, however, farfetched/exaggerated the grievance may be.  It is time to amend Section 154 of Cr.P.C. to prevent private citizens and busy bodies from lodging such complains before the police in respect of offence under Section 153 (A) of I.P.C., as anyhow no prosecution can be lodged without the sanction of the Central Government or State Government.  Therefore, any citizen having any grievance regarding the commission of any offence under Section 153 (A) should be directed to first to bring the same to the notice of the Union Home Secretary or Principal Secretary, Home Department of the State Government.  If the Central or State Government does not act upon the same, then the citizen may move the High Court by way of a Writ of Mandamus but not Station House Officer directly.  Most of these cases never pursued after the initial burst of publicity.  Those who lodge these complaints before the police, forget about them as soon as their political purpose or arm twisting is achieved. 

          The third category of cases which attract media publicity are the so called cases regarding Sedition.  In respect of Sedition under Section 124-A of IPC the National Crime Records Bureau shows that the number of convictions under Section 124-A of I.P.C. over the last few years is abysmally low.  Only two persons were convicted in the year 2018 and only one person is convicted in the year 2016.   (Source: National Crime Records Bureau).   For prosecuting a complaint under Section 124-A of I.P.C., also sanction by the Central or State Government is required, as in the case of offences under Section 153-A of IPC.  For this offence also, citizens should first be directed to approach the Union Home Secretary or Principal Secretary, Home Department of the State Government.  If the Central or State Government does not act upon the same, then the citizen may move the High Court by way of a Writ of Mandamus but not Station House Officer directly.

          Unless this is done, the precious time of the police will be wasted in registering publicity oriented FIRs and the investigation of actual crimes would be severely impeded.  It is time for the Law Ministry to bring about extensive changes in the Cr.P.C. to weed out frivolous litigations at the threshold stage itself.

Adv. Prabhakar Sripada

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