Monday, July 5, 2010

FIR (Ss.154 - Ss.176)

FIR in Cognizable cases -

  1. A First Information Report is Information(facts) of a cognizable offence, given orally or in writing to an officer of a police station. It is read over to the informant if given orally, signed by tthe informant, an entry or the essence/substance(material particulars) is entered into a book(S.155) called the 'Station House General Diary'. A reliable telephonic message disclosing a cognizable offence which is not cryptic or anonymous is valid.

  2. It must be given free of charge to the informant(Art 21 of Constitution). (S.154) If the Station House Officer refuses to register, the substance can be sent to the Superintendent of Police(District) or the Commissioner of Police(Metropolitan), who, if satisfied, either makes investigation himself or directs investigation by his subordinates. In State of A.P Vs P.Ramulu it was held that refusal to record information is a dereliction of duty even if it is a wrong police station. In a cognizable case the police-officer doesnot require a warrant from the magistrate to arrest.

  3. If there is a delay in filing the FIR then reasonable explanation and justification must be shown as held in State of W.B Vs O.L.Jaiswal. Delay causes chance of embellishment, exaggeration and false implications.

  4. An FIR is not a substantive evidence - State of M.P Vs Surbhan. Substantive meaning it can stand by itself. It can only corroborate or contradict the maker. It does not need to have the minutest detail but has to prima facie show that an offence has been committed and is sine qua non for registration of an FIR.

  5. Courts do not interfere at the stage of investigation as stated in Jayant Vitamins Ltd Vs C.Kumar. Only if they are illegal or in exceptional cases, then courts interfere - for ex, if the investigating officer is involved in the crime as in Punjab & Haryana Bar Association Vs State of Punjab.

  6. (S.157)Upon receipt he sends a report to the Magistrate and proceeds in person or deputes a subordinate to discover or arrest of the offender. If the police-officer thinks offence is not of a serious nature or the persons complicity is not established, in State of Haryana Vs Bhajan Lal he states his reasons in the report to the Magistrate and informs the informant that he is not willing to investigate it.

  7. (S.158)The report is sent through a senior officer as the State Govt may direct, and such officer gives necessary instructions to the police-officer and sends it to the Magistrate.

  8. (S.159)The Magistrate can direct investigation or hold a preliminary inquiry or depute any subordinate Magistrate to do so or he can dispose of the case.

  9. All the names of the witnesses need not be mentioned. In investigation the Police-officer is concerned with 2 objectives- Whether the offences alleged have been committed ? -Who has committed them ?
Non cognizable cases -
S.155 says that in a non cognizable case the police-officer doesnot have the power to investigate or arrest unless he gets permission or order from a Magistrate. If in 2 or more offences one of them is cognizable then the whole case is deemed to be cognizable.

Witness Attendance -
(S.160) A police officer by a written order can require the attendance of witnesses or persons acquainted with the case to give statements and record them in writing. However, no person below 15 years is required to attend at a place other than where s/he orinarily resides.  (Bodhraj Vs State of J& K ) The persons are bound to state truthfully except for answers that expose them to self incrimination like criminal charge, penalty or forfeiture.

Statement to police -
Persons making statements donot have to sign any record  and is not to be used in any inquiry or trial in respect of any offence under investigation except -

  • that the statements can be used by the accused to contradict the witness. It can be used in re-examination for explaining any matter referred in the cross-examination.

  • (S.162) If any part is missing in the statements (ommission) and is a significant or relevant fact amounts to contradiction.

  • (S.163)A police officer should not induce or promise or threaten a witness who is making out of his own free will except that he can caution in case of a confession  under S.164.
Statement to Magistrate -


Example of misuse of FIR: ORDER:
1. This petition is filed by the petitioners 1 to 4 who are shown as 'A' group in F.I.R No.91 of 2010 issued by the Inspector of Police, Kurnool II Town Police Station under Section 145 Cr.P.C, for quashing the said F.I.R under Section 482 Cr.P.C.
2. This Court at the outset wondered as to how a crime can be registered in the police station and how F.I.R can be issued in a matter relating to Section 145 Cr.P.C. The Inspector of Police Kurnool II Town Police Station by name Sri P.Srinivas was summoned by this Court and he was questioned by this Court about his propriety in issuing F.I.R in a matter relating to Section 145 Cr.P.C by registering the same as crime. The said police officer expressed that by mistake F.I.R was issued by registering the crime under Section 145 Cr.P.C and that it is a bonafide mistake. Having admitted that it is a mistake, it would be a question of fact whether the said mistake is a bonafide one or a malafide one tainted with oblique motive. The Public Prosecutor stated that he consulted some senior police officers, who expressed that no F.I.R can be issued in a matter relating to Section 145 Cr.P.C. The Public Prosecutor also stated that issuing F.I.R by registering a crime in a matter relating to Section 145 Cr.P.C is unknown to criminal procedure. The Inspector of Police stated that he has been working in the police department for the last 12 years and that 2 years ago he received his promotion as Inspector of Police. This Court understands a raw junior police officer who is recruited into service in the latest batch committing mistakes which are in the nature of blunders; and this Court could not comprehend as to how a senior police officer of the rank of Inspector of Police who had put in 12 long years of service in the department committed such mistake which can be classified blunder. Even though the Andhra Pradesh Police Academy is conducting periodical training programmes and re-orientation courses for all level of police officers in the State, some police officers like the Inspector of Police herein are not able to even understand basics of Criminal Procedure. Whether he is a police officer or any other officer of the Government, he is governed by rule of Law. The police officers who are in- charge of maintenance of law and order and detection and investigation of crimes are governed by the Code of Criminal Procedure, 1973 in their functions and it is part of rule of Law to be followed by them.
3. Section 154 (1) Cr.P.C deals with receiving and registering of information relating to commission of cognizable offences. The said provision reads as follows:
"154. Information in cognizable cases:-
(1) Every information relating to the commission of 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."

Information as to commission of non-cognizable offence can also be received by the police officer and procedure for investigation of such information of non- cognizable offence by a police officer is set out in Section 155 Cr.P.C as follows:
"(1) When information is given to an officer-in-charge of a police station of the commission within the limits of such station of a non-cognizable offence, he shall enter or cause to be entered the substance of the information in a book to be kept by such officer, in such form as the State Government may prescribe in this behalf, and refer the informant to the Magistrate.
2. No police officer shall investigate a non-cognizable case without the order of a Magistrate having power to try such case or commit the case for trial.
3. Any police officer receiving such order may exercise the same powers in respect of the investigation (except the power to arrest without warrant) as an officer in charge of a police station may exercise in a cognizable case.
4. Where a case relates to two or more offences of which at least one is cognizable, the case shall be deemed to be a cognizable case, notwithstanding that the other offences are non- cognizable."
As per Section 156 Cr.P.C any officer in-charge of a police station may investigate any cognizable case without order of a Magistrate if it occurred within the limits of such police station. The first step in the investigation after registration of a crime as per Section 157 Cr.P.C. is sending report by Officer in-charge of the Police Station to the Magistrate who is empowered to take cognizable of such offence upon a police report. Further, such report has to be sent to the Magistrate in the manner prescribed in Section 158 Cr.P.C.
Thereafter, Sections 159 to 172 Cr.P.C. deal with procedure to be followed by and powers of the investigating officer during the course of investigation of a case. After completing of investigation, the investigating officer shall forward final report to the Magistrate under Section 173(2) Cr.P.C in the prescribed form. The above provisions of Cr.P.C starting from Section 154 to 173 Cr.P.C deal with receiving of information relating to cognizable or non- cognizable cases, sending report thereof to the Magistrate in the prescribed form (i.e., by way of forwarding registered FIR along with original information to the Magistrate) and conducting and completing of investigation during which the investigating officer is expected to collect both oral as well as documentary evidence from witnesses, and finally the investigating officer is expected to file his final report before the Magistrate whether the case is liable to be charged for any offence or liable to be referred under any head prescribed by rules.
4. Thus, above scheme under the Code of Criminal Procedure, 1973 envisages that there must be commission of an offence and such offence may be a cognizable offence or non-cognizable offence for receiving information by the Police Officer under Section 154 Cr.P.C and sending the same to the Magistrate in the prescribed form under Section157 Cr.P.C. Without there being commission of an offence, the question of the police officer receiving information under Section 154 Cr.P.C or sending a report in the prescribed form to the Magistrate under Section 157 Cr.P.C does not arise at all.
5. Section 145 Cr.P.C does not contain a penal provision much less deal with any type of offence whether cognizable or non-cognizable. Section 145 Cr.P.C prescribes procedure to be followed where dispute concerning immovable property or water is likely to cause breach of peace. Under Section 145 (1) Cr.P.C, the Executive Magistrate passes an order in case the Executive Magistrate is satisfied from "a report of a police officer or upon other information" that a dispute likely to cause a breach of peace exists. Thus, in proceedings under Section 145 Cr.P.C., the police officer is the complainant or the informant to the Executive Magistrate. When the Police Officer is the complainant or the informant and is not the officer who receives information, then question of registering the said information under Section 154 Cr.P.C does not arise at all.
The police officer acting under Section 154 Cr.P.C is at the receiving end with reference to the information. Whereas a police officer in proceedings under Section 145 Cr.P.C is not at the receiving end, but is at the forwarding stage with reference to the information. Therefore, question of registering a crime under Section 154 Cr.P.C and forwarding FIR to the Magistrate under Section 157 Cr.P.C. does not arise in case of proceedings under Section 145 Cr.P.C.
6. In case the police officer registers a crime under Section 145 Cr.P.C and issues FIR, then the crime will be pending in the police station records until final report under Section 173(2) Cr.P.C is sent by the police officer/investigating officer to the Magistrate after conducting investigation.

No further investigation is contemplated by the police officer in proceedings under Section 145 Cr.P.C; and the police officer is also not expected to file any further final report under Section 173(2) Cr.P.C before the Magistrate in proceedings under Section 145 Cr.P.C. There is every possibility of misuse of power by an unscrupulous police officer in case a crime is registered under Section 145 Cr.P.C and it is kept pending in the records maintained in the police station, by way of forcing persons to come to the police station and harassing them in the police station for extracting any pecuniary or offer benefits. Therefore, this Court is of the view that even though provisions of Cr.P.C do not contemplate registration of a crime and issuing of FIR by a police officer in proceedings relating to Section 145 Cr.P.C., giving FIR after registering a crime in such cases is not only out-side the realm of law and would likely to lead to abuse of power by certain unscrupulous police officers. This cannot be permitted in law.
7. No doubt, there are certain instances where crime is registered and FIR is issued even though no cognizable offence is present is disclosed in the information received by the police officer. Such instances are like 'man missing', 'woman missing', 'girl missing', 'child missing' etc., and also under Section 174 Cr.P.C or under Section 176 Cr.P.C. In these cases, though initially no cognizable offence is disclosed in the information, still registration of a crime and issuing of FIR are not viewed seriously because ultimately, further enquiry or investigation may land in discovery of commission of a cognizable offence. In such informations, one can reasonably suspect commission of a cognizable offence which did not come to surface in the information received by the police officer.
8. Having regard to above discussion of various provisions of the Code of Criminal Procedure, 1973, it follows that Inspector of Police, Kurnool II Town Police Station has exceeded his powers under the Code in issuing FIR in Crime No.91 of 2010 in a matter relating to proceedings under Section 145 Cr.P.C and it is liable to be quashed on this ground alone irrespective of merits of contents therein.
9. In the result, the petition is allowed quashing FIR in Crime No.91 of 2010 of Kurnool II Town Police Station. However, it is open to the police officer to place information/report before the Mandal Executive Magistrate relating to this subject matter.

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