Diferença entre reclamação e FIR (com tabela)

Complaint and FIR might sound like one and the same to laymen but in legal terms, they have very different meanings.

Complaint vs FIR

o difference between complaint and FIR is that a complaint can be made against both cognizable and non-cognizable offences whereas and FIR can be filed only in case of the former. An offence for which arrest can be made without a warrant is a cognizable offence and where a warrant is necessary, it is a non-cognizable offence.

Besides this major point of difference, a complaint is to be made to the magistrado and it can be given orally or in writing.

An FIR has to be filed with the officer in charge of a police station and if it is given orally, it must be written down and read out to the informant.

Comparison Table Between Complaint and FIR

Parâmetro de ComparaçãoComplaintABETO
ProvisãoDefined by Section 2(d), CrpCProvided under Section 154, CrPC
AutoridadeMagistradoPolice officer in charge of a police station
OffenceNon-cognizable offencesBoth cognizable and non-cognizable offences
ResultadoInquiry by Magistrate or officer under Magistrate’s directionInvestigation by police officer

What is a Complaint?

Complaint is defined under Section 2(d) of the Code of Criminal Procedure, 1973 or CrPC as ‘an 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 explanation to the section further provides that if the commission of a non-cognizable offence is disclosed in the investigation report.

The report will then be called the complaint and the officer who filed the report will then become the complainant.

Section 200, CrPC requires the Magistrate to examine the complainant and any witness under oath before putting it down in writing. The written complaint will then be signed by the complainant and the aforementioned witnesses.

The Magistrate can then initiate proceedings against the person accused in the complaint or, under Section 202, CrPC, start an investigação into the matter himself or direct an investigation to be conducted by a police officer or by a person considered fit for the matter.

After all these steps have been carried out, the Magistrate can dismiss the complaint under Section 203 if there does not seem to be sufficient material to continue.

Whenever a Magistrate dismisses a complaint, he needs to record his reasons for coming to that conclusion.

However, if it is found that there is substance to the complaint, he may issue a summons or a warrant as required against the accused and begin trial proceedings.

In cases where only a Sessions Court can try the matter, the Magistrate must commit the case to a Sessions Court. Such a complaint filed before the Magistrate need not be written in any set format. It can be filed by any person who is aware that an offence has been committed even if they are not actually connected to the situation.

The facts given by the person need only establish that an offence has been committed and it is not necessary for him to show which specific legal provision has been violated.

What is FIR?

According to Section 154(1), CrPC, all the information received about a cognizable offence being committed by the officer in charge of a police station should be put into writing.

The written version will then be read to the person informing the officer about the offence and then signed by him. This report is generally called the First Information Report or FIR.

True to its name, an FIR is the first information given to the police regarding an offence being committed and it is on the basis of this information that further action will be taken.

Since it is the first report it need not be in great detail and only the nu essentials such as the facts, time and place of commission, etc. are required.

However, the information given should not be vague and the commission of a cognizable offence must be established. An FIR should not be filed on the basis of baseless rumors or gossip. An FIR can be filed by any person who is aware that an offence was committed even if he has no direct interest in the matter.

It can be an eyewitness or the victim or even the accused if he comes forward to confess. Section 154(2), CrPC, also lays down that the informant has to be given a free copy of the information once it is put into writing. In cases of sexual assault against a woman where the complaint is being made by the woman in question, it is necessary that a woman officer be present to take down the information.

Upon receiving this information, the police can begin investigating the matter. No permission from the Magistrate is required and after investigation, a charge sheet should be filed in accordance with Section 173, CrPC.

Once the proceedings have been initiated against the person accused in the case, the accused must be given a free copy of the FIR and all other relevant documents like the police report, list of witnesses, etc. as laid down in Section 207, CrPC.

Time is of great importance for filing an FIR. It must be filed as quickly as possible so that the information is authentic without much time for embellishment.

There are of course cases where a concession is given if the prosecution can prove that there was a legitimate reason for the delay.

Main Differences Between Complaint and FIR

  1. A complaint is a piece of information given orally or in writing to a Magistrate about an offence committed by a person.
  2. An FIR or First Information Report is the information given to a police officer in charge of a station regarding an offence being committed and it must be reduced into writing.
  3. Complaints can be filed for both cognizable and non-cognizable offences.
  4. Only cognizable offences can be reported through an FIR.
  5. Upon receipt of a complaint, the Magistrate can inquire into the matter himself or direct a police officer to do so.
  6. After filing an FIR the police officer may commence the investigation without any prior permission from a Magistrate.

Conclusão

If the registration of an FIR is refused without any legal reason for the same such as the offence is a non-cognizable one, the informant can approach the Superintendent or Commissioner of Police and file a written complaint before them.

They may also approach a Judicial Magistrate regarding the same.

On the other hand, if a complaint filed before the Magistrate is dismissed, the complainant may file a review petition as a remedy.

Referências

  1. https://kanoon.nearlaw.com/2018/01/10/complaints-magistrates/
  2. https://www.lawaudience.com/complaint-to-magistrates-sections-200-to-203-the-code-of-criminal-procedure-1973/
  3. https://lawtimesjournal.in/first-information-report-fir-under-crpc/