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Bijo Francis,
Advocate, Kerala
The criminal justice system of India,
though it has manifold arms for execution and delivery, derives
much of its authority through the tenets provided by the Code of
Criminal Procedure, 1973. It is through the seamless authority
flowing from this code that the criminal justice delivery system
of this country functions.
Early under the British regime, criminal
procedures for courts in the Presidency Towns and in the Mofussil
(a district subdivision of the time) were not the same. To
implement a uniform pattern of criminal procedure for all courts
in India the Criminal Procedure Code (Act 10) of 1882 was handed
down. This was superseded by Act 5 of 1898, and further
substantial changes were brought in by Act 18 of 1923 and Act 26
of 1955. Local Amendment Acts of the state legislatures were also
introduced to separate the judiciary from the executive.
But the country had to wait until 1955 for the
Central Law Commission to be set up, which attempted a
comprehensive revision of the old code. The new code is based on
the recommendations of the Law Commission as contained in its
Forty-First Report presented in 1969, which also took into
account the earlier reports dealing in specific maters. The
changes made were substantive and numerous.
The code as it stands now professes to deal
exhaustively with the law of procedure and tries to provide in
the minutest detail the steps to be followed in all matters
pertaining to general administration of criminal law. Over time,
the code has lost much of its initial glory and it is high time
that, in light of the advancement of science and technology and
perplexing complexity of the criminal mind in this advanced
society, it be subject to revision.
In this article I am not attempting to
comprehend the code as such, or to comment on its entire
provisions so as either to suggest a modification or possible
mode of revision. That would be a highly exhaustive task
demanding meticulous attention to detail. Instead I would like to
limit my reflections to a particular section of the code that
provides for the initiation of police enquiry into any given
crime. This section is contained in Chapter XII of the code and
is titled Information to Police and Their Power to Investigate.
It 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 for with, 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 of a
police station in relation to that offence."
The First Information Report (FIR) is the
key to a successful criminal investigation. It is the trigger
that sets into motion the investigation mechanism in a given
crime. It is interesting to note, however, that the term
"first information" is not mentioned in the code. It
merely says "information recorded under Sec.154".
The details to be recorded in the FIR are
exhaustive. It contains the date and time of giving the
information, police station where it is recorded, place, date and
time where the offence has taken place, the names of the persons
who have committed the offence, probable provisions under the
Indian Penal Code or any other enactment under which the offences
are punishable, the information in detail, name and address of
the informant and the action taken.
The object of the FIR from the point of view of
the informant is to set the criminal law in motion, whereas for
the investigator it is to gather information regarding the
offence so as to take appropriate action to book the offender. It
acts as a record book. In either case it aims to record the
information as early as possible and for future reference. The
law stipulates that the information has to be recorded
immediately on receipt. Here the nature of the offence is also
important. Only when information is received regarding a
cognizable offence can the police investigate without the order
of a magistrate; in the case of a non-cognizable offence, the
informant has to be referred to a magistrate.
The law, is clear and it has been reinforced by
the decisions of the courts. Even if the information regarding a
crime is received over the telephone, and even if the call is
anonymous, it has to be put into writing as an FIR (Criminal
Law Journal 1980, p. 1397). But this doesn"t mean that
any vague or cryptic information can be treated as information
for recording an FIR. Whether it amounts to "first
information" or not is essentially a question of fact
depending on the circumstances in each case (All India
Reporter 1961 Kerala 99). Therefore, in determining
whether a report amounts to an FIR or not, regard should be had
to the following:
1. It should not be vague or indefinite but
give facts showing commission of a cognizable offence
enabling the police, or give a scent to allow police to take
up investigation.
2. It may be given by anyone, not merely
the person aggrieved or by someone on his behalf.
3. It need not name anyone as the offender
or witness; nor need it state the circumstances of the
commission of the crime. It is simply the first information
that sets the police in motion.
In a case where the first information is in
fact given by the accused, it stands on a similar footing as
information by any other person except that the confessional
part, if any, must be excluded. This is because such statements,
if taken with the confessional part, fall under Sec. 25 & 26
of the Indian Evidence Act. However, there is no bar to a
confession in an FIR being used in favour of the accused. Where a
person lodging an FIR is subsequently accused of the offence, it
is an admission of certain facts that have a bearing on the
question to be determined by the court. When the accused gives
the first information, that fact is admissible against the
accused as evidence of conduct under Sec. 8 of the Indian
Evidence Act. Where the information is not confessional, it is
still admissible against the accused under Sec. 21 of the Indian
Evidence Act (All India Reporter 1966 Supreme Court 119, All
India Reporter 1964 Supreme Court 1850).
Other details in the section are also
important. The information provided has to be reduced into
writing. This is a mandatory condition. The information being
taken down has to be read over to the informant, and the
signature of the informant obtained. A copy of the statement has
to be served free of cost to the informant. This is also
mandatory. The matter further has to be entered in the General
Diary or the Station Diary and the FIR has to be forwarded to the
local magistrate for the court records as well. Omitting
information from the station diary will not necessarily vitiate
the trial, but it will have important bearing if the date and
time of lodging the FIR is questioned during trial.
The FIR is a highly valuable and vital piece of
evidence in a criminal trial. It is necessary to corroborate the
oral evidence in the case (All India Reporter 1973 Supreme
Court 501). It is the first version of the incident and is of
considerable value as it reveals the materials that the
investigation commenced with and what the original version of the
story was. It has high practical value since the information is
from the earliest instance, when the memory is clear and vivid.
So given the law, what happens in practice?
Even though the contents of the FIR and the details therein are
very explicit, the instances of misusing these entries and
inadequate entering of the necessary details are rampant. Often,
even if information is given, with graphic details, the police
fail to record a statement and to initiate any action. It is the
duty of the police officer in charge of a station to record the
information and take appropriate action. But often the officer in
charge fails to perform his duty. The reasons are
manifold-lack of responsibility, corruption, nepotism etc.
Whatever the reason, the mechanism that ought to be set in motion
simply does not work, resulting in failure of justice. Cognizable
offences are reported to the police, yet are not recorded, are
recorded carelessly, or falsely recorded on purpose to permit the
accused an easy walk through in the trail.
The Criminal Procedure Code has laid down
provisions for reporting the offences and the modus of recording,
but it has failed to foresee the possibility of an officer
committing errors either willfully or accidentally. The only
safeguard is to address the superior officer on the dereliction
of duty by a subordinate officer. But this is limited to cases
when the officer in charge fails to record the information, and
not where the information recorded is improper. Under any
circumstances, the law again places utmost confidence in the
police officers. What if the higher officer is also corrupt or
reluctant to act to meet the ends of justice? The only option for
the informant is to approach the courts to redress the
grievances, which would take at least six to seven months to
begin an inquiry, given the number of cases pending disposal
before the various courts in this country. Such investigations
suffer inordinate delays before being set into motion. Yet the
very purpose of recording an FIR is to get a picture of the
incident while it is clear and vivid in the informant"s
memory. That is probably why the law does not even permit a
preliminary enquiry into the incident before recording an FIR,
because it would destroy its value and pave the way for
fabrication of cases (All India Reporter 1961 Kerala 99).
At this point it is pertinent to note that the
courts have dealt with delays in filing an FIR as to be viewed
according to the facts and circumstances in each case. For
example, a delay in lodging an FIR in a case of rape is treated
differently from a murder in broad daylight. The mindset of the
person lodging the information, especially the victim in a rape
case, is important, and in such cases a delay of days has been
excused. The effect of a delay must fall for consideration on all
facts and circumstances of a given case (All India Reporter
1973 Supreme Court 1). Whether the delay is so long as to
throw a cloud of suspicion on the seeds of the prosecution case
depends upon several factors, including the defense.
However the delay in many FIR submissions is
caused not by the informants, but by the police themselves. For
the ordinary person, the business of lodging an FIR can often
turn out to be a disgusting if not insulting experience.
Instances are many when the police accuse the person lodging the
information of making unnecessary work for them and order the
informant out of the police station. There are reported cases
where women who went to lodge information were raped or other
wise molested by police officers. The Apex Court has on various
occasions condemned such acts and has held the police responsible
and awarded compensation to the victims. So for an ordinary
citizen without power and influence, the FIR sometimes turns out
to be nothing more than the First Insulting Response.
The police have their own way of circumventing
the provisions of any given enactment so as to facilitate their
needs. The FIR is one example of where they have ample
opportunities to make space to wet their beaks in future. For
instance, the code does not insist that the accused be named
while recording the FIR. The police have various ways of
exploiting this provision. They can simply record a known person
or persons in the column provided and later arrest them for
committing the crime. Having made the arrests, they can
stage-manage the trial and give evidence congenial for an
acquittal after accepting bribes or other undue gratification.
Now the Central Government has embarked upon an
attempt to revise the Criminal Procedure Code of this country so
as to contain the rampant misuse of these procedures. However
improved and advanced be the procedural law, it will be of little
help if police prosecutions are not properly launched and if the
inherent inertia of the police in this country is not promptly
tackled to address their indolent methods and the inefficient
investigation of crimes wreaking havoc on the criminal justice
dispensation system of this country.
Posted on 2002-08-15
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