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JAMIA MILLIA ISLAMIA, NEW DELHI
CRIMINAL PROCEDURE CODE PROJECT
EVIDENTIARY VALUE OF F.I.R Submitted to:
Dr. Asad Malik
Faculty of Law
B.A. LLB (H)
Jamia Millia Islamia
8th Sem, Sec B
TABLE OF CONTENTS
1. Acknowledgement………………………………………………………..3 2. List of Cases……………………………………………………………...4 3. Introduction………………………………………………………………5 4. Cognizable and Non-Cognizable Offences…………………...………….8 5. Meaning of FIR…………………………………………………………11 6. Contents of FIR…………………………………………………………15 7. Registration of FIR……………………………………………………...18 8. Proof of FIR……………………………………………………………..21 9. Evidentiary Value of FIR……………………………………………….22 a. FIR by Victim………...…………………………………………..24 b. FIR by Witness…………………………………………………...25 c. FIR by Accused…………………………………………………..26 10. Delay in FIR……………………………………………………………27 11. Bibliography……………………………………………………………31
I wish to express my heartfelt thanks to all those who have helped me in making this project. I take this opportunity to express my profound gratitude and deep regards to my teacher Dr. Asad Malik for his exemplary guidance, monitoring and constant encouragement throughout the course of this project. The blessing, help and guidance given by him time to time shall carry me a long way in the journey of life on which I am about to embark.
I also take this opportunity to express a deep sense of gratitude to the staff of Jamia Millia Islamia, New Delhi, for their cordial support, valuable information and guidance, which helped me in completing this task through various stages. I am obliged for the valuable information provided by them in their respective fields. I am grateful for their cooperation during the period of my assignment. Lastly, I thank almighty, my parents, brother, sisters and friends for their constant encouragement without which this assignment would not be possible.
LIST OF CASES
Lalita Kumari v. Govt. of U.P. (2014) 2SCC 1 Soma v. State of Gujrat, AIR 1975 SC 1453 Nazir v. K.E. AIR 1945 PC 18 State of U.P. v. Bhagwant AIR 1964 SC 221 State v. Shiv Singh, AIR 1962 Raj 3. Hasib v. State of Bihar AIR 1972 SC 283 Meharaj Singh v. State of U.P., (1994) 5 SCC 188. Subhas Aggarwal v. State of Bihar, 1989 Cr LJ 1752 Superintendent of Police, C.B.I. v. Tapan Kr Singh. AIR 2003 SC 4140 Narayan v. State of A.P., AIR 1975 SC 1252 Bishan v. State of Punjab, AIR 1975 SC 461 Lachman v. State 1973 Cri LJ 1658(HP) State of Assam v. U.N. Rajkhowa, 1975 Cri LJ 354 Kuthu Goala v. State of Assam, 1981 CrLJ 424 (Gau) Miyana Hassan Abdulla v. State of Gujrat AIR 1962 Guj 214 Krishna Mochi v. State AIR 2002 SC 1965 Aghnoo Nagesia v. State of Bihar AIR 1966 SC 119 Harpal singh v/s State of H.P,(1981)1SCC560 Amar Singh v. Balwinder Singh, (2003) 2 SCC 518 Mohd. Ali v. State of U.P. [2015(3) SCALE 274]
Indian Criminal Procedure Code contains provisions to ensure protection of civil liberties. These protections have been incorporated as a part of criminal procedure law even before the enactment of the Indian Constitution. Principles of legality, presumption of innocence, etc. which are a part of the Constitution were already there as part of the criminal procedure law.
The Criminal Procedure Code of 1973 provides for a detailed procedure when it comes to dealing with criminal matters in our country. The criminal process in our country is divided into many phases. One such phase is the pre-trial stage. This is the stage where the role of the police is important. They investigate into any crime and collect evidence that is crucial to prosecute the accused. Without proper evidence, the court will not convict the accused. In a criminal trial, the facts lie scattered all over the record and are not readily available in one single document. They have to be therefore collected from a multitude of papers. The
earliest version of the prosecution case is available in the First Information Report which is the trigger point of action.1
The requirement of registering FIR has also been examined by the court. Though in the case of cognizable offences it has been ruled to be compulsory, the court carved out some areas where its main rule may not be applicable. If the court was to strictly follow the theory that the court alone has the power to determine the suitability of information for registration, it should have stuck with it. Instead the court carved out exceptions having regard to the realities of the situation. The fact remains that access to justice remains meaningful if only this stage is overseen by the Magistrate.2
Another important issue with respect to FIR which has been worrying the Courts for quite a long time is with respect to the anonymity in case of FIR, especially when FIR is given on telephone. That is if in case the person who gives first information report on telephone does not reveal his/her name, then, whether in such cases the FIR would be significant for the investigative purpose. Also, what in case the information is vague or cryptic, whether it 1
Dhirendra Pal Varshini, How to Frame a Charge under the Penal Code and Other Criminal
Acts, 2nd Edn., Eastern Book Co., Lucknow, 1994, p.2. 2
Lalita Kumari v. Govt. of U.P. (2014) 2SCC 1 6
would be admissible in such cases. These have been issues of great concern by the Courts and many differing opinions have developed in the course of time. Nevertheless, the issue still doesn't seem to be well settled.
COGNIZABLE AND NON COGNIZABLE OFFENCES
The earliest information given to the police which set the investigation in motion, and is reduced to writing by latter is known as the First Information Report.3 The object of the FIR is to obtain early information about an alleged criminal act and to record circumstances before there is time for them to be forgotten or embellished.4 Though the FIR enables a police to start the investigation on the basis of information, the Code draws a distinction between cognizable and noncognizable offences. a) A non-cognizable case is one under which a police officer can arrest a person only with a warrant.5 Cases falling under this category are usually petty offences or those of a less serious character. If the information relates
Soma v. State of Gujrat, AIR 1975 SC 1453
Nazir v. K.E. AIR 1945 PC 18
Section 2(l) of the CrPC for the meaning of the term non-cognizable cases or non-
cognizable offences 8
to a non-cognizable offence the police cannot start investigation without the order of a Magistrate who is competent to try the case or commit it for trial.6 b) A cognizable case is one under which a police officer can arrest a person without a warrant.7 These types of cases are usually those of a serious nature. Hence, the police are vested with powers to arrest a person accused of such an offence without a warrant, and in doing so, a procedural safeguard that is given to a person is done away with. The possible rationale behind the removal of such a safeguard could be the fact that the police are expected to act quickly in such cases and put the accused behind bars immediately. If the information relates to a cognizable offence, the Police may at once start the investigation without the order of a Magistrate,8 though the officer in charge of the police station has to send a report about such information to a Magistrate empowered to take cognizance of the offence.9
It must not be supposed however, that the police can investigate a cognizable offence only on receipt of FIR. The very opening words of section 157(1) say that the investigation may be started in any case the officer in charge of a police
Section 155(2) of the Criminal Procedure Code.
Section 2(c) of the CrPC- The meaning of the term cognizable cases or cognizable offences.
Section 156 of CrPC
Section 157 of CrPC 9
station has reason to suspect the commission of a cognizable offence, from the information received or otherwise.10
State of U.P. v. Bhagwant AIR 1964 SC 221 10
MEANING OF FIR
"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 the police station in relation to that offence.''
First Information Report Commonly known as F.I.R is first and foremost important step to set the criminal law in motion. Though the term F.I.R is nowhere mentioned in the code of criminal procedure but information given under Section 154 of CrPC is popularly known as F.I.R. It is nothing but the statement of the maker of the report at a police station before a police officer recorded in the manner provided by the provisions of the Code.11
Provision of section 154 makes possible that any person aware of the commission of any cognizable offence may give information to the police and may, thereby set the criminal law in motion. Such information is to be given to the officer –in –charge of the police station having jurisdiction to investigate the offence. The information so received shall be recorded in such form and manner as under provided in Section 154.This section is intended to ensure the making of an accurate record of the information given to the police.
State v. Shiv Singh, AIR 1962 Raj 3. 12
As has been discussed above, there is a distinction between how an investigation commences in a cognizable case and a non-cognizable case. In simple terms, the First Information Report (FIR) is the basis on which an investigation begins in a cognizable case. The object of lodging the FIR is to obtain the earliest information regarding the circumstance inn which the crime was committed, including the names of the actual culprits and the parts played by them, the weapons, if any, used, as also the name of the eye-witnesses.12
Chapter 12 of the CrPC deals with the power of the police to carry out investigation. The first provision appearing under this chapter is S.154. This is the material provision that we are concerned with. S.154 deals with information given to the police in cognizable cases and is divided into three distinct parts. It is on the basis of this initial information given to the police that investigation commences. This initial information is more commonly known as the FIR. It is very important to note that S.154 itself does not make use of the term „First Information Report‟. However, one should not immediately come to the conclusion that this term has not been mentioned anywhere in the code. Though S.154 does not make use of this term, one should read S.207 of the CrPC. The conclusion that can be drawn by reading this section is that the report recorded under S.154 is the First Information Report. The FIR is a very important 12
Meharaj Singh v. State of U.P., (1994) 5 SCC 188. 13
document and marks the beginning of the investigation. The object of the FIR is to set the criminal law machinery into motion. First Information Report (FIR) at the initial stage must disclose some cognizable offence so that the police may proceed with the investigation of the case, as it is prerogative of the police to investigate the same.13
The Supreme Court in Hasib v. State of Bihar14 has held that the object of FIR from the point of view of the informant is to set the criminal law in motion and from the point of view of the investigating authorities is to obtain information about the alleged criminal activity so as to be able to take suitable steps for tracing and bringing to book the guilty party. The object is to obtain early information of alleged criminal activity, to record the circumstances before there is time for them to be forgotten or embellished. It must be recorded at once when it is given, it would be improper to wait until it is ascertained that a crime has been committed.
Subhas Aggarwal v. State of Bihar, 1989 Cr LJ 1752.
AIR 1972 SC 283 14
CONTENTS OF F.I.R
What section 154 requires is that information must be in relation to “the commission of a cognizable offence.” It does not require that the information must give details of all elements of the offence,15 or the weapon used or the names of the witnesses or even of the accused, if the particulars given are sufficient for appreciation of the evidence.16
The Supreme Court in Superintendent of Police, C.B.I. v. Tapan Kr Singh.17 Has stated that, it is well settled that a First Information Report is not an encyclopaedia, which must disclose all facts and details relating to the offence reported. An informant may lodge a report about the commission of an offence though he may not know the name of the victim or his assailant. He may not even know how the occurrence took place. A first informant need not necessarily be an eye witness so as to be able to disclose in great details all aspects of the offence committed. What is of significance is that the information given must disclose the commission of a cognizable offence and the information
Narayan v. State of A.P., AIR 1975 SC 1252
Bishan v. State of Punjab, AIR 1975 SC 461
AIR 2003 SC 4140. 15
so lodged must provide a basis for the police officer to suspect the commission of a cognizable offence. At this stage it is enough if the police officer on the basis of the information given suspects the commission of a cognizable offence, and not that he must be convinced or satisfied that a cognizable offence has been committed. If he has reasons to suspect, on the basis of information received, that a cognizable offence may have been committed, he is bound to record the information and conduct an investigation. At this stage it is also not necessary for him to satisfy himself about the truthfulness of the information. It is only after a complete investigation that he may be able to report on the truthfulness or otherwise of the information.
Similarly, even if the information does not furnish all the details, he must find out those details in the course of investigation and collect all the necessary evidence. The information given disclosing the commission of a cognizable offence only sets in motion the investigative machinery, with a view to collect all necessary evidence, and thereafter to take action in accordance with law. The true test is whether the information furnished provides a reason to suspect the commission of an offence, which the concerned police officer is empowered under Section 156 of the Code to investigate. If it does, he has no option but to record the information and proceed to investigate the case either himself or depute any other competent officer to conduct the investigation. 16
The question as to whether the report is true, whether it discloses full details regarding the manner of occurrence, whether the accused is named, and whether there is sufficient evidence to support the allegations are all matters which are alien to the consideration of the question whether the report discloses the commission of a cognizable offence. Even if the information does not give full details regarding these matters, the investigating officer is not absolved of his duty to investigate the case and discover the true facts, if he can.
WHAT SHOULD BE MENTIONED IN THE F.I.R.? Name and address. Date, time and location of the incident being are reported. The true facts of the incident as they occurred. Name and description of the persons involved in the incident.
REGISTRATION OF FIR
First Information Report (F.I.R.) can be filed by any person. He need not necessarily be the victim or the injured or an eyewitness. First Information Report may be merely hearsay and need not necessarily be given by the person who has first-hand knowledge of the facts. It can be filed in the police station of the concerned area in whose jurisdiction the offence has occurred. A first information report must be made to an officer-in-charge of a police station.
Procedure for filing an F.I.R:
When information about the commission of a cognizable offence is given orally, the police must write it down.
It is your right as a person giving information or making a complaint to demand that the information recorded by the police is read over to you.
Once the information has been recorded by the police, it must be signed by the person giving the information.
You should sign the report only after verifying that the information recorded by the police is as per the details given by you.
People who cannot read or write must put their left thumb impression on the document after being satisfied that it is a correct record.
Always ask for a copy of the FIR, if the police do not give it to you. It is your right to get it free of cost.
The question whether it is obligatory for the police to register FIR on information given by an informant has been answered in the affirmative by the five-member bench in Lalita Kumari v. Govt. Of U.P.18 It has been categorically ruled that the provisions of Section 154 CrPC are mandatory and the officer concerned is duty bound to register the case on the basis of information disclosing commission cognizable offence. However, if no cognizable offence is made out in the information given, then the FIR need not be registered immediately and the police may conduct a preliminary verification for the limited purpose of ascertaining as to whether a cognizable offence has been committed.
It is worthwhile to emphasise here that information to have the status of FIR under Section 154 must be an information relation to the commission of a
(2014) 2 SCC 1 19
cognizable offence and it must not be vague but definite enough to enable the police to start investigation.19
In Lachman v. State20 the Court held that if oral information relating to the commission of a cognizable offence is given to the police, but the same is not recorded and the police officer proceeds to the scene of the offence and there records the statements of the witnesses, none of such a statement would amount to FIR, because in such a case the real FIR was the unrecorded oral information given to the police by the informant.
State of Assam v. U.N. Rajkhowa, 1975 Cri LJ 354
1973 Cri LJ 1658(HP) 20
PROOF OF FIR
Prosecution is bound to produce the FIR. Ordinarily it is the duty of the prosecution to put information in the FIR. It has to be proved like any other document and it is usual to call the informant for the purpose.21 The defence should not be debarred from using the FIR merely because the prosecution did not formally prove it. When the first information orally given is reduced to writing by a person and is signed by the informant, the handwriting of the former and the signature of the latter have both to be proved. Mere countersignature of the document by the police officer in charge does not prove the handwriting of the document.22 FIR attracts the operation of Section 35 of the Evidence Act, even though not signed by the informant. Even if the FIR is not proved it would not be a ground for acquittal, but the case would depend upon the evidence led by prosecution. Therefore the non-examination of the informant cannot affect the prosecution case.23
Kuthu Goala v. State of Assam, 1981 CrLJ 424 (Gau)
Miyana Hassan Abdulla v. State of Gujrat AIR 1962 Guj 214
Krishna Mochi v. State AIR 2002 SC 1965 21
EVIDENTIARY VALUE OF F.I.R
The statements made to the police are if three categoriesa) A statement which has been recorded as a First Information Report b) Statement recorded by the police in the course of investigation c) A statement recorded by the police but not falling under the above (a) and (b) category
None of the above statements can be considered as substantive evidence, that is to say, as evidence of facts stated therein. Because it is not made during trial, it is not given on oath, nor is it tested by cross- examination. If the person making any such statement to the police subsequently appears and gives evidence in court at the time of trial, his former statement could , however be used to corroborate or to contradict his testimony according to the provisions of the Indian
“In order to corroborate the testimony of a witness, any former statement made by such a witness relating to the same fact, at or about the time when the 22
offence took place, or before any authority legally competent to investigate the fact
“A witness may be crossed-examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him, or being proved; but if it is intended to contradict him by the writing, his attention must, before writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him.”
The FIR is not substantive evidence, but it can be used to corroborate the informant under Section 157 of the Evidence Act, or to contradict him under Section 145 of the Act, if the informant is called as a witness at the time of trial. Obviously, the FIR cannot be used for the purposes of corroborating or contradicting any witness other than the one lodging the FIR.24
Shambhu Das v. State of Assam, AIR 2010 SC 3300 23
FIR by the Victim When an FIR is lodged by the victim himself, then the following legal consequences with regard to the evidentiary value of the FIR in the Court of Law arise: 1. Under Section 157 of the Indian Evidence Act, the Statements given in FIR may be used to corroborate the statements given in the Court. The fact that victim lodged the FIR and narrated the whole facts and circumstances of offence(s) allegedly committed against him have great corroborative value when the victim being the Prosecution Witness (PW) comes and testify before the Court during the trial. 2. Section 145 of the Indian Evidence Act, 1872 talks about crossexamination as to the previous statements in writing by the Defence Lawyer. There are many instances when the victim himself turns hostile. He does not support the prosecution story and thereby attracting contradiction under section 145 of the Act. 3. The statements of a deceased recorded by a police officer in a routine manner as FIR and not as a dying declaration can be taken as a dying declaration under section 32(1) of Indian Evidence Act after the death of the injured if he was found to be in a fit health to make a statement.25
Paras Yadav v. State of Bihar, (1999) 2SCC 126 24
FIR by Witness When an FIR is registered by a witness, then it can be treated as evidence in the following manner: 1. The principle of Res Gestae26 would apply here. Even though the registration of FIR by the witness is not an issue in itself, but it is so connected with the facts in issue that it forms a part of the same transaction. 2. Under Section 157 of the Indian Evidence Act, the Statements given in FIR may be used to corroborate the statements given in the Court. 3. The witness can be cross examined and contradicted under section 145 of the Indian Evidence Act using the statements given by him in the FIR 4. The credibility of the witness can be impeached under Section 155 of the Indian Evidence Act. When the Prosecution Witness does not support the prosecution version of facts and case, he is termed as hostile witness and the Prosecution tries to impeach his reliability and credibility by proving that the said witness has received bribe or has received any other corrupt inducement to give the evidence and thereby rendering him futile for the Defence side as well.
Section 6 of the Indian Evidence Act 25
FIR by Accused In Aghnoo Nagesia v. State of Bihar27 it was stated that when the accused himself gives the first information, the fact of his giving the information is admissible against him as evidence of his conduct under section 8 of the Evidence Act. If the informational is not confessional, it is admissible against accused as an admission under section 21 of Evidence Act and is relevant. But confessional first information by the accused to a police officer cannot be used against him in view of section 25 of the Evidence Act. No part of the confessional statement is receivable in evidence except to the extent that the ban of section 25 is lifted by Section 27 of the same Act.
If the FIR by the accused contains facts relating to the motive, preparation and opportunity to commit the crime it is impossible to say that such portion will be treated as no part of the confession. The FIR can be used against the accused as evidence of his conduct under section 8 of the Evidence Act in case where he himself has given the first information. Apart from the above stated implications, it can be used to corroborate the statement made by accused under section 157 and it can be used to cross examine and contradict the accused under section 145 of the Indian Evidence Act.
AIR 1966 SC 119 26
DELAY IN F.I.R
The First Information Report should be lodged with the police at the earliest opportunity after the occurrence of cognizable offence .The object of insisting upon prompt lodging of the report to the police is to obtain early information regarding the circumstances in which crime was committed. Delay in lodging the FIR quite often gives birth to the suspicion that FIR is result of afterthought, deliberation and consultation. Undue or unreasonable as well as unexplained delay of lodging the FIR often gives fatal blow to the prosecution case.
There must be reasonable explanation of delay in lodging FIR. In a rape case, where the FIR was lodged ten days after the incident, it was explained that as the honour of the family of the prosecutrix was involved the members of the family had taken that time to decide whether to take the matter to the court or not. This explanation for the delay was held to be reasonable under the circumstances.28 Similarly, in a case where the relatives of the injured person were anxious to provide immediate medical aid to him, the delay in their lodging the FIR was considered as well explained.
Harpal singh v/s State of H.P,(1981)1SCC560 27
When there is criticism on the ground that FIR in a case was delayed, the Court has to look at the reason why there was such a delay. There can be a variety of genuine causes for FIR lodgement to get delayed. Rural people might be ignorant of the need for informing the police of a crime without any lapse of time. This kind of mischief is not too uncommon among urban people also. They might not immediately think of going to the police station. Another possibility is due to lack to adequate transport facilities for the informers to reach the police station. The third, which is quite common bearing, is that the kith and kin of the deceased might take some appreciable time to regain a certain level of tranquillity of mind or sedativeness of temper for moving to the police station for the purpose of furnishing the requisite information. Yet another cause can be, the persons who are supposed to give such information themselves could be so physically impaired that the police had to reach them on getting some nebulous information about the incident. There cannot be an exhausting catalogue of instances which could cause delay in lodging the FIR.
There is no hard and fast rule that any delay in lodging the FIR would automatically render the prosecution case doubtful. It necessarily depends upon facts and circumstances of each case whether there has been any such delay in lodging the FIR which may cast doubt about the veracity of the prosecution case and for this a host of circumstances like the condition of the first informant, the nature of injuries sustained, the number of victims, the efforts made to provide medical aid to them, the distance of the hospital and the police station, etc. have to be taken into consideration. There is no mathematical formula by which an inference may be drawn either way merely on account of delay in lodging of the FIR.29
Delay in lodging the FIR cannot be used as a ritualistic formula for doubting the prosecution case and discarding the same solely on the ground of delay in lodging the first information report. Delay has the effect of putting the Court on its guard to search if any plausible explanation has been offered for the delay, and if offered, whether it is satisfactory or not. If the prosecution fails to satisfactorily explain the delay and there is a possibility of embellishment in the prosecution version on account of such delay, the delay would be fatal to the prosecution. However, if the delay is explained to the satisfaction of the Court, the delay cannot be itself be a ground for disbelieving and 29
Amar Singh v. Balwinder Singh, (2003) 2 SCC 518. 29
discarding the entire prosecution case. The delay in lodging the FIR would put the Court on its guard to search if any plausible explanation has been offered and if offered whether it is satisfactory.
Mohd. Ali v. State of U.P. [2015(3) SCALE 274] Decided On: 10.03.2015: In this recent case, a minor girl of fourteen years was kidnapped and gang raped. The FIR regarding the same was lodged after a delay of 11 days. The Supreme Court addressed this issue of delay in lodging FIR as: It is apt to mention here that in rapes cases the delay in filing the FIR by the prosecutrix or by the parents in all circumstance is not of significance. The authorities of this Court have granted adequate protection/allowance in that aspect regard being had to the trauma suffered, the agony and anguish that create the turbulence in the mind of the victim, to muster the courage to expose one in a conservative social milieu. Sometimes the fear of social stigma and on occasions the availability of medical treatment to gain normalcy and above all the psychological inner strength to undertake such a legal battle.
1. The Code of Criminal Procedure by SC Sarkar, Tenth Edition, 2012 2. Criminal Procedure Code, 1973, Durga Das Basu, Fourth Edition, 2010 3. R.V. Kelkar‟s Criminal Procedure, K.N. Chandrashekharan Pillai, Sixth Edition, 2014 4. Textbook on The Law of Evidence, Chief Justice Monir, Ninth Edition, 2014 5. http://www.governindia.org/wiki/Filing_an_FIR 6. http://lawthing.blogspot.in/2013/04/first-information-report-and-its.html 7.http://www.legalservicesindia.com/article/article/evidentiary-value-of-fir936-1.html 8.http://www.legalindia.in/firat-glance-view-point-indian-evidence-act-1872/ 9. Class Notes