The members of LAWyersClubIndia had a great opportunity to be able to organize and attend a webinar session with Mr.Rajat Bansal. The Webinar dealt with the “Importance of an FIR in an investigation.” Sir himself being a reputable Public Prosecutor in the Saket Court, currently with an experience of 4-5 years, is a valuable resource to provide us with inputs regarding the said topic. During the course of the session, he has elucidated upon the various factors surrounding the importance of an FIR and its timely filing for an investigation.
Mr.Rajat Bansal is an experienced lawyer with 9 years of experience, of which he has been a Public Prosecutor in the court of Saket for the past 4 years. He is experienced in the field of criminal law. He is one of the few Public Prosecutors who understands the criminal justice system and has immense knowledge regarding the same. He is also trying to become a Magistrate in the near future. Sir brings in awareness of the law, judgments, Statutes to the table as a lawyer of less than a decade’s experience. With this erudition, it is a given that Sir has many important facets of the FIR about which he can discuss and illuminate us with, during the course of the webinar as a Public Prosecutor.
In light of the same, he began with a brief introduction as to the role of a Public Prosecutor in the Criminal Justice System of India, by clearing the air surrounding the same. He stated that the work of the Public Prosecutor is not to defend the victim or secure conviction, but to help the judge in delivering Justice in the said case by staying impartial in the Court and helping the Magistrate.
Sir now began with the lecture on the topic by providing that the principal agency for an investigation and they have wide powers under the CrPC. Therefore, before understanding the concept of FIR, we must understand what an investigation is and what it entails. As per the CrPC, only two agencies can conduct an Investigation –
- Police officials and
- Any third person whom the magistrate will direct to do the investigation can conduct the same.
As per various judgments of various High Courts as well as the Law Commission of India, the Magistrate will always remain to keep an eye on each step of the Investigation and advancement in any case. Sir provided for the judgment of Sakiri Vasu v. State of UP (2007), where the Supreme Court upheld that a Magistrate cannot monitor an investigation, but, one can move an application so that there can be no gross negligence on part of the Police.
Steps in an Investigation –
- Registration of an FIR
- Recording statements of the witnesses
- Arrest of the Accussed
- Seiure of the weapon of the offence
- Preparing the charge-sheet and filing before the Magistrate
Post the above stated, the enquiry or trial begins before the Magistrate.
FIRST INFORMATION REPORT –
Sir provided for the provision of Section 154 of the CrPC, which deals with the FIR. He defines an FIR as, “whenever a cognizable offence has been committed by anyone, then the victim/aggrieved will go to the police station where he will either narrate the story to the police official orally or a written complaint will be given to the Police officials. This will be converted into an FIR by the Police official with the signature of the victim (after it is read over and admitted to be correct).”
Section 154 further states that if the Station House officer (SHO) refuses to register the FIR, the alternative that is provided is that the victim can post the complaint to the concerned DCP or Superintendent of Police so that he can take necessary action against the same by starting the investigation himself or by directing the SHO to start the investigation. Further, an e-FIR can also be filed online which will then go to the crime branch from where the necessary PS will have to take action regarding the same.
OBJECTIVES AND IMPORTANCE OF AN FIR –
An FIR is such a document where one must provide truly or nearby truly all the facts and details of everything that has happened, as an FIR is a very important document in any investigation. Though various Courts have stated that an FIR is not an Encyclopedia and not all facts must be disclosed in the FIR, the practical experience of Mr.Bansal is that FIR is a very important document and one MUST give all the details in the FIR as much as is possible. Because, the defense lawyer can use a little bit omission against the victim as a contradiction. Therefore, all the details that the victim has at that time must be provided in the FIR.
For instance, in a case there were four accused but the victim has stated in the complaint that there were three people A, B and C which is recorded and FIR is filed. Later when the statement is given under Section 161 CrPC and there are four names that are given, the same is called improvisation of statement which can be used by the defense counsel during the trial which will create a doubt on the prosecution that this is an after-thought created in the mind of the victim to implicate the new person D in a false case.
In the case of Kapoor Singh Rana v. State of Delhi (2005), the star witness who was the mother of the victim provided all the details in the statement but did not provide the details of the accused as he was the boyfriend of the victim who poured acid on the victim. This created chaos in the case of the prosecution. In light of this, Section 162 provides that any substantive omission of information of the witness will amount to contradiction in the case. Therefore, every detail must be provided during the filing of an FIR and “no spoon should be left unturned”.
REGISTRATION OF AN FIR
An FIR can be registered only in the case of cognizable offences under Section 154 and in case of non-cognizable offences; there will be NCR (Non Cognizable Report) which is registered by the Police under Section 155. In the case of Lalitha Kumari v. Govt of UP (2014), the Supreme Court clearly provided that in cognizable offences police officials are duty bound to register the FIR except in the case of commercial disputes, matrimonial disputes and others.
FIR can be registered as per Jurisdiction in such a Jurisdiction where the offence had been committed by the accused. But, there is a provisio of Zero FIR. Sir defines Zero FIR as “If an offence has taken place in one place and the person filing the FIR is in another place and he/she wants to provide such information in such a police station where they are, the police is duty bound to record the statement or complaint so that they can lodge a Zero-FIR on the same.” After the same, the case should be sent to the concerned police station for further investigation. The same was held in the landmark case of State of Andhra Pradesh v. Punati Ramula (1993).
MULTIPLE FIRs and CROSS FIRs
Cross FIRs are basically when one incident has been committed and both the parties to the said incident lodge an FIR against each other, the same is called a Cross FIR. In this case, the Police Officers look into both the cases and act appropriately as needed in the investigation.
Multiple FIRs have two inherent issues to understand which an example was provided –
In case an offence takes place and the victim is bought to the hospital in Mukherjee Nagar where the Police also arrive and take the statement of the victim, converting it into an FIR. Post this, the parents of the victim arrive and shift the victim to Defense Colony where he is in a critical condition. The parents call the Police and provide for another FIR to be filed/ registered with the names of the accused in Defense Colony. Thereafter, the victim is taken back to his residence in GKOne where the victim dies as a consequence of the offence. Another new FIR is filed by the Police in GKOne with the statement of the parents stating that A, B and C have committed the murder of their child. In light of this, there are Multiple FIRs in connection to the same offence in different stations.
With regard to this issue of whether multiple FIRs can run against one accused, the Supreme Court has clearly provided in good judgment that if the facts of the FIRs are different then they will sustain and run as separate cases with different charge-sheets. The same has been reiterated in the case of Shiv Shankar Singh v. State of Bihar (2011). But if the facts are the same, then the accused can approach the High Court under Section 482 CrPC and the High Court will quash all the FIRs, except the first one. This has been provided in the cases of TT Anthony v. State of Kerala (2001), Mohd. Yusuf v. Afaq Jahan and Anr (2006) as well as Rameshchandra Nandalal Parikh v. State of Gujrat (2006). These cases can be looked into for clear understanding of the concept of Multiple FIRs.
WHEN DOES THE INVESTIGATION START
The investigation can be started before the registration of the FIR, as soon as one knows about the cognizable offence that has taken place. Excise Act and the Arms Act are two cases in which the investigation usually begins without the registration of an FIR. As soon as any illegal weapons are recovered by the Police Officials, the investigation will start from that very moment. The accused is apprehended, the weapon is seized and then the information is provided in the Police Station. Similarly, once an accused is stopped with illicit liquor, the investigation starts from then. As soon as this happens, the IO is called for and then the Ruqa is sent by the constable to the concerned Police Station where the FIR comes into being.
The straight jacket formula for acquittal in the cases dealing with Arms Act and Excise Act –
- Once an accused is found with illicit weapon/liquor, the information has to be immediately sent to the Police Station. The DD Entry of such information is not usually maintained and the case of the prosecution starts to crumble here.
- The Police officer conducting the recovery, later on also conducts the investigation which is very fatal to the case of the prosecution. No one person can be the informant as well as the IO of the case.
- Once the illicit material is found and sealed, the seal is to be handed over for which a memo has to be made as per the law, so that tampering cannot be done by the officer. This seal handing over and taking back memos are not done by the Police Officers. They further do not make a public witness, DD entry. These are the faults that are committed.
CONSEQUENCES OF DELAYING AN FIR
Delay in lodging an FIR can be fatal to the case overall. However, in certain cases like rape, sexual offences the delay is not fatal to the case of the prosecution and is justified. The same was provided for in the case of State of Punjab v. Gurmeet Singh (1996) as well as State of Himachal Pradesh v. Srikanth Shikri (2004).
In a practical experience that Sir has experienced, the girl filed for a rape petition after two years of the incident when they were in a relationship together, and the boy did not give her money and such incidents. Sir believes that there is no sanctity in such a case as there is no evidence that can be collected. In his experience, these judgments are not be blindly followed as there is no practical application of the same and hence, a delay in filing the FIR is fatal to the case of the prosecution.
Section 156 refers to the power of the SHO to investigate cognizable cases without the order of the Magistrate. Thereafter, as soon as any information is made known to the SHO Section 157 comes into play where the occurrence report has to be made, as he is duty bound to do the same. As soon as such a report is made by the SHO he must make the Magistrate aware of the same within a reasonable period of time and the Magistrate can take action against the officer if he fails to do so.
Section 159 comes into play when the FIR is registered but the officer sees no merit in the same and files for closure of the same case. Then, once the Magistrate looks into the contents of the FIR they can give orders to the SHO to take action in the said case. This is the privileged power of the Magistrate itself. The Magistrate can also depute a Sub-ordinate Magistrate to do the preliminary enquiry on it and handover the same to an MM so that appropriate action can be taken.
The landmark judgments in this regard include – State of Kerala v. Nilachandran (2009); Shivlal and Others v. State of Chhattisgarh (2011) as well as the case of SN Sharma v. Vipin Kumar Tiwari (1970)
Section 156(3) is a very important facet that must be discussed as it deals with the measures that can be taken up, if Police officials are not taking the victim’s case. A copy of the complaint must be sent to the SP or the DSP and then a complain under Section 156(3) should be filed before the Magistrate read with Section 200 CrPC. Two things must be proven in order to prove the complaint to the Magistrate –
- That an investigation is required in the complaint that has been made.
- Complainant cannot bring the evidence himself. If there is no evidence that the complainant is able to produce himself, then the Magistrate will pass the order under Section 156(3).
It is important to note that a judge cannot file an FIR against a government official unless prior approval from the concerned department has been bought forward by the complainant as in the case of Anil Kumar v. Appa (2010).
Before 2008, the Magistrate was a part to register the FIR under Section 482. However after the case of Sakiri Vasu v. State of State of UP the MM is also given the power to order regarding the registration of an FIR under Section 156(3). The case also clarified that the victim can approach the court under Section 156(3) if there is gross negligence in the process of investigation. In this same manner, the same has been given in the case of Babu Bai v. State. In furtherance, a revision can also be filed as in the case of Nishu Wadhwa v. Siddharth Gupta (2018).
The real issue rises as to whether a revision can be filed after the judge gives an order for the filing of the FIR. There is no landmark judgment on this basis or it is still pending in the apex court of law. The other area where there is a vacuum in law with regard to Section 156 is when the petition has been dismissed and a revision is filed. Then lawyers will misuse the same to state that such a petition has been filed only to harass the defendant. Then the accused must engage a lawyer to defend in him in the revision unlike in the MM Court where there is no need for the same. This is a vacuum that has not been filed by the courts yet.
In the case of Radha v State (2011), Justice Gambhir has clarified that if the MM feels that there is a valid case and the victim is unable to bring in evidence, then he must call for the report within 3-5 days and cannot order for the same in 2 months or any such amount of time.
IMPORTANT POINTS -
Whether a child can lodge an FIR?
If a child can be a competent witness under Section 118 of the Indian Evidence Act, then he can lodge an FIR.
Whether an FIR is a public document or a privileged document?
FIR is a public document.
Whether everything in an FIR can be considered to be genuine or genuine evidence?
No, one cannot presume the genuinity of the FIR as per Section 80 of the Indian Evidence Act. The same has to be proven during the course of the prosecution.
Evidentiary value of an FIR –
FIR is not substantive evidence and cannot be used as substantive evidence.
How can we use an FIR and what is the purpose of an FIR?
FIR can become the primary evidence under few conditions, like in –
- Dying Declaration where the complainant dies after giving the complaint. This FIR becomes the Dying Declaration as per Section 32 of the Indian Evidence Act and can be considered as primary evidence.
- If there is any form discovery based on the FIR, then as per Section 27 of the IEA, this can become primary.
- Thereafter, under Section 21 of the IEA admission/ self-incriminating statements can also fall under this purview.
FIR can be used in the process of a trial by the prosecution by providing corroboratory evidence under Section 157 IEA. Further, under Section 159 of the Act the victim can refresh his memory. In the same manner, the defense can cross-examine and contradict the statement of the complainant by under Section 145 of the Act.
Whether an FIR can be registered against a public servant?
Yes, this can be done. However, cognizance cannot be taken against the public servant without permission from appropriate authority. In reality, there is preliminary enquiry that is conducted regarding the same so as to avoid defamation of the servant by the SHO.
Why is there a notion that an accused cannot approach the Court under Section 1576(3)?
As the police, the chief investigating agency in the country has the same notion regarding the accused the same is carried forward. Further, the accused cannot carry forward this as the power according to the courts is that of monitoring the investigation. The Courts often forget that a fair trial is a right of every accused as well as the case of Audi alteram partum.
What are the practical remedies that are available to a person if the police officer files in a diluted FIR as opposed to the facts provided?
If the Police Officer tries to dilute the FIR then you can move to the DCP and make the complaint. Further a lesser known remedy is to move the NHRC as this is a Human Right of a person that is being violated. The NHRC will seek necessary action against the same. Moving to an MM is also a viable option that will then be strict with the police officials and take necessary action.
What is the difference between an FIR and a Charge sheet?
An FIR is the very first information that is received and the charge sheet is the complete case that is filed by the Police officer to the MM. The Charge Sheet contains the FIR, statement of the witness, Arrest Memo, Seizure Memos, Expert Notices, Bank Notices and others will all be complied to make a charge sheet.
Can an e-FIR be filed in all cases?
Yes it can be filed in all cases. It is mainly used in those cases where the accused is un-known to the complainant.
Can Zero FIR be used as evidence? Is the certificate under Section 65B necessary under Zero FIR? How effective is the zero FIR in comparison to the FIR?
Yes, both normal FIRs and Zero-FIRs have the same value. They are not substantive evidence and only under certain above mentioned sections can it be used as evidence similar to a normal FIR. It is important to understand that an FIR and zero FIR are the same as once the zero FIR is sent to the concerned PS it becomes a normal FIR.
What is the remedy available to the accused if the documents given by the accused have not been included in the charge sheet?
If the accused documents are not included then, the Magistrate is duty bound to include the same at the time of the charge.
What will happen if it is found be a non-cognizable offence during the time of investigation but has been registered as a cognizable offence?
The Explanation of Section 2(d) CrPC provides that if a charge sheet has been filed in the MM based on the investigation carried out as a cognizable offence but is later understood as a cognizable offence, and then the charge sheet is treated as a complaint by the Magistrate.
Can private persons be a part of investigations?
Yes, private persons can be a part of the investigation with the direction of the Magistrate. Section 2(h) provides the Magistrate with such a power.
Where the offence is tried – residence of the person or the place of incident?
Section 177-189 (Jurisdiction), the trial continues in the place of the incident. But there are cases where the consequence of the case in another place, then the jurisdiction includes both the places and the case can be tried anywhere. If an offence takes place on a train, the jurisdiction of the case comes along across every point in the train.
If an FIR is registered regarding a certain offence and there is no mention of the same in the charge-sheet then what are the consequences of such an FIR?
As one case is converted into another based on the change in the facts of the case, there are no specific consequences. However, there should not be much discrepancy between the charge-sheet and the FIR that is filed. Offences can be added on based on the investigation but it must in the course of the same.
If a case under Section 156(3) is pending before court, can an FIR still be filed based on the same?
An FIR can still be filed and there is no bar on the same. If the SHO believes that it is a cognizable offence then, rather than filing the Action Taken Report, a copy of the FIR can be bought in.
How valid is an investigation taken up the relatives of the victim?
The investigation is valid, relevant and admissible the Evidence Act also provides for the same. Any form of evidence from any investigation is valid and admissible.
Can an FIR be filed by way of a telephone or SMS?
Strictly from the perspective of the essentials of an FIR, this cannot be done. However, if it is taken as ‘first’ information then it is always given on the 100 number. This is provided that the information is not cryptic and a cognizable offence is clearly understood. The SHO or 100 number can be called and the information can be converted into an FIR. As a DD (Daily Dairy) Entry is made on the call, the FIR will be registered based on the same.
What is Rukka?
It is basically the information given to the DO and contains all the details regarding the incident including the witness and the other important information that may be relevant to decide the FIR as well as the IO for the case.
What is the best book to read on Criminal Law?
All the books are good. However, based on the provision one is reading judgments based on the same should also be looked at which will make the understanding of the same easier and better. Criminal Procedure Code by R.V. Kelkar is one of the best books to be read.
In trivial cases like phone robbery, as the police does not take action even after registering the complaint, is there any remedy for the same?
One can file Section 156(3) for fair investigation and the Court will request for the updates on the same. But the police cannot do much more than put the phone on tracking and search a limited area in light of the same.
Is it a right of the complainant to get a copy of the FIR? Is it mandatory to be signed by the SHO and complainant?
Section 154 provides that as soon as an FIR is lodged, the complainant must be given to the complainant free of cost. As far as the signs are concerned, the Stamp of the PS is put on the copy that is given meaning that it is a certified copy.
What is your advice to young lawyers who want to pursue criminal law and what are the methods a female can take up for career in criminal law?
The gender of the person does not matter in the pursuance of Criminal Law. The only point is to be thorough with the cases and statues by putting in necessary hard work. Every statue and law has to be thoroughly read through and not skimmed to be able to become established in this field.
After the MeToo and the Bois Locker Room incident, there was no FIR filed but cognizance is taken. If the victims do not come forward and the State has to take the matters, how does this proceed? How is evidence gathered in such cases?
The Criminal Jurisprudence is very clear regarding this; a crime is not an offence against an individual but is against the society at large, the duty of the law enforcers is to ensure that the error is made right with suo-motu cognizance. The evidence will be collected and can be submitted at any given stage. Additionally, one can also proceed using circumstantial evidence in the lack of other evidence. With regard to the evidence, the investigation is the prerogative of the police and how they get evidence. As lawyers one must only fight the case in a court of law.
Can an FIR be filed after a cognizable offence has been proven after 10 years due to a consumer court proceeding?
Information can be given at any given point in time as it is a cognizable offence, information can be given at any time and there is no limitation regarding the same. The delay in the FIR can be explained in any manner by the complainant.