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{Balu manikantan} SUBRAMANYAM (Practising Advocate)     23 July 2021

Remedy to complainant if police file only petty case

What is the remedy available to the complainant if the police file a petty case instead of filing FIR with serious sections of law.

Can the complainant file a private complaint or revision or a writ in the High Court to get the FIR booked with proper sections.



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 3 Replies

Shubham Bhardwaj (Advocate)     23 July 2021

Dear Mr Subramanyam, 

What I could understand from your query is that an FIR has been filed by the police on "Mr X" complaint to police. But the police has registered FIR under non-serious sections. You want the police to add  serious provisions in the said FIR.

In such scenario you may do the following:-

1. If the charge sheet has not been filed and the case is still at investigation stage, you may first give a written application to the Investigation officer and inform him about the facts which had led you to believe that serious provisions should be added. If the investigating officer does not do anything within5-6 days, you may file Application u/s 156(3) Cr PC for re-investigation. In the said application you have to submit the facts and evidence which warrant inclusion of serious provisions.  If the court is satisfied, the court will order re-investigation and to file appropriate charge sheet. 

2. If the charge sheet has already been filed then file application directly to the trial court stating the facts warranting inclusion of serious charge along with evidence. The trial court has power to alter charge as per Section 216 Cr PC. 

Regards 

Shubham Bhardwaj (Advocate)

District & Session Court, Chandigarh

Punjab & Haryana High Court, at Chandigarh 

 

Disclaimer:- Opinion is only for guidance.  

{Balu manikantan} SUBRAMANYAM (Practising Advocate)     24 July 2021

Respected Shubham Bhardwaj (Advocate)  I thank you very much for the response.

Police I have received my complaint and directly e-filed petty case charge sheet without an FIR. In Hyderabad for small offences like nuisance Eppadi case chargesheet is filed without any FIR under the the city police act.

Usually when a person is chargesheeted under the city police act he will be letter of with a small fine and rarely he will be sentenced to jail for a maximum period of 30 days.

So I thought to get an advice from the learnt members when I have filed a complaint which entails FIR with serious sections of law , but the police treated the complaint as a less serious and a petty case has been registered against the accused and we do not know the judgement of the magistrate in the case.

 

Shubham Bhardwaj (Advocate)     25 July 2021

Dear Mr Subramanyam, 

Although I am not able to understand the facts properly however what I was able to make out was that police have only charged the accused with section relating to public law and order which are triable before the executive magistrates and not the judicial magistrate (JM). Every State can have different procedure to deal with these kind of offences (triable before executive magistrate). 

However, I am certain that once an offence falls under any of the provisions of IPC  then the person has to be charged with the offence under IPC and the procedure would be governed with Code of Criminal Procedure  1973, only with minor amendment by the State legislature. (Since states are empowered to amend the code of criminal procedure as per their circumstances but the fundamental scheme is not to be disturbed)

So what you must do is that if the offence with which the person is currently charged is triable by executive magistrate, let it continue and file complaint with police under serious provisions of Indian Penal Code , whichever is applicable. If the police does not do anything then file a private complaint with the Judicial magistrate first class narrating the facts leading to offence under Section 200 Cr PC. Once the JM takes cognizance of the complaint the rest is just procedure for trial. 

Regards

Shubham Bhardwaj (Advocate)

 

 


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