Differentiating Counter FIR & Counter Complaint: | Criminal Law Attorney in Delhi NCR | Criminal Lawyer in Delhi NCR |
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“A criminal case or a criminal trial is a very complex preposition. Lodging of Police complaints, registration of FIR, filing bail applications, tendering evidences in criminal proceedings, applying the criminal defenses and preferring an appeal is an entirely difficult process. To understand the difference between counter FIR and counter complaint, it is important to understand what is counter FIR and counter complaint. Both counter FIR and Counter complaint is/are nowhere defined in the Criminal Procedure Code (Cr. P.C.) of 1973 but it is filed under Section 154 and section 155 of Criminal Procedure Code (Cr. P.C.) of 1973 respectively. An FIR is the first information given to the police about the commission of a cognizable offence based on which the police starts investigation. And Counter FIR is a report filed by the accused in the original FIR against the informant in the original FIR.”
A complaint as defined under Section 2(d) of Criminal Procedure Code is an oral or written allegation made to the magistrate with a view of him taking action against a person who has committed a cognizable or in cognizable offence. Complaints filed before the magistrate under Section 155 are then examined by the magistrate under Section 200 of Criminal Procedure Code. The person named as an accused in the complaint can also file a complaint against the person who filed the first complaint under Section 155. Such complaint filed by the accused is also known as Counter complaint. Counter complaint is not defined in the code.
Difference between Counter FIR & Counter Complaint: Best Criminal Lawyer Advice
More often than not counter FIR and Counter complaint is wrongly confused to be same. However, there are some fundamental differences between counter FIR and counter complaint. Counter FIR is filed by a person when a FIR is filed against him under Section 154 of Criminal Procedure Code (Cr. P.C.) of 1973 whereas counter complaint is filed by a person when a complaint is filed against him under Section 155 of Criminal Procedure Code.
The fundamental distinction between a counter FIR and a counter complaint is that a counter FIR can only be filed in regard to a cognizable offence, whereas a counter complaint can be filed in respect to both cognizable and non-cognizable offence. The categories of offences which are cognizable in nature are provided in the first schedule of Criminal Procedure Code,1973. In the case of a counter FIR, the offence involved is of cognizable nature, which means that the police have the authority to arrest the accused even without a warrant, and the police can begin the investigation in the said case without the prior permission of the Magistrate, and they can then file a charge sheet based on such investigation… On the other hand, in case of counter complaint a Magistrate takes cognizance of an offense on the basis of a complaint under Section 190 of Criminal Procedure Code 1973. He orders the police to commence the investigation of the matter and can also direct the police to lodge an FIR if in his opinion the offence if of serious nature. The police in case of counter complaint cannot initiate investigation without Magistrate’s prior permission.
The investigating powers exercised by the Police in both cognizable and non-cognizable cases ar same except that in non-cognizable cases the police cannot make an arrest without warrant. However, these investigating powers of the police is not unfettered an absolute. The police can exercise these power only within the bounds of the code, as held by the Supreme court in the case of State of West Bengal & Ors vs. Swapan Kumar Guha & Ors [1982 AIR 949]
A counter FIR is always lodged in a predefined format whereas there is no specific format of filing a counter complaint. A counter complaint can be filed in the form of an affidavit or petition before the magistrate. Counter FIR is filed in the same police station where the original FIR has been filed and counter complaint is filed before the magistrate before whom original complaint was filed.
Similarity between Counter FIR & Counter Complaint: Best Criminal Legal Solutions
One significant similarity between a counter FIR and a counter complaint is that both can only be filed if they state a different version of the same incident than the complainant did in the original FIR or original complaint.. As the Supreme Court ruled in Babubhai vs. State of Gujarat & Ors. Criminal Appeal No. 1599 of 2010 that two FIRs reporting the same occurrence cannot be filed in the same case, but if both FIR and Counter FIR state different versions of the same incident, both FIR and counter FIR are valid and must be investigated by the police.
The same rule applies in case of complaints. The Supreme Court in case of T.T. Antony vs. State of Kerala & Ors Criminal Appeal No. 689 of 2001 held that any further complaint against the same accused stating the same facts is prohibited but a counter complaint filed by the accused against the complainant stating his version of the facts is valid. The court was of the opinion that if counter complaint is not allowed then there may arise a situation in which the real accused lodged the complaint first against the victim and the victim was precluded from lodging a complaint against the real accused. This could lead to serious miscarriage of justice. Citing the case of T.T. Antony the Court gave a similar decision in the case of case of Ram Lal Narang & Others vs. State Delhi Administration 1979 AIR 1791
Conclusion
Going through the above mentioned differences between counter complaint and counter FIR it is clear that they are inherently different because of the nature of offences they deal with and the authority before which they are filed. It is the duty of the police to ensure that there exists a prima facie case while registering a counter FIR and in case of counter complaint, the Magistrate is the ultimate authority to ensure that the compliant is based on merits.
Authored By: Adv. Anant Sharma & Mahua Dutta