F. I. R. is not a substantive piece of evidence. If so, for what purpose an F.I.R can be used? When preliminary inquiry prior to registering an FIR is necessary?

By Y.Srinivasa Rao, Principal Asst.Sessions Judge, Tirupati.

Introduction:—

The value of F.I.R depends on the circumstances of each case, nature of the crime, information and opportunity of witnessing the offence (AIR 1973 SC 476) .

First Information Report (F.I.R) can be used:—-
(1) F. I. R. is not a substantive piece of evidence. It can be used either for corroboration under Section 157, or for contradiction under Section 145 of the Evidence Act, of the maker of the statement. (State of Orissa vs. Chakradhar Behera and Ors, AIR 1964 Ori 262,)
(2) It is a well settled law that the F.I.R. by itself cannot be used as a substantive piece of evidence and it can only be used as a contradiction or corroboration thereof. See. Sajji Kumar vs. State of Goa.
(3) In some cases, F.I.R can be used as Dying Declaration.(See Relevant Section 32 (1) of Indian Evidence Act)
(4)If First Information Report is given by an accused,itcannotbeusedeitherforcorroborationor contradiction in case it is affected by Section 25 of Indian Evidence Act).

  1. F.I.R can be used to prove motive.
  2. F.I.R can be used to prove previous conduct of accused
  3. F.I.R can be used to show subsequent conduct of accused
  4. F.I.R can be used for cross-examination of informant who gave such information.
  5. F.I.R got recorded by the police has been taken as dying declaration by the honorable Supreme Court, when the person did not survive to get his dying declaration recorded [AIR 1976 2199 (SC).
  6. Act of investigation and filing charge sheet are separate. (1978 Crl.L.J 63).
  7. Whether investigation commenced or not is a question of fact. (AIR 1970 SC 1566)

In the case of Aleeque Padamsee Vs. Union of India, reported as (2007) 6 SCC 171, Hon’ble Supreme Court after considering provision of Section 154156190 and 200 to 203 Cr.P.C, has held that:

The writ petitions are finally disposed of with the following directions:

(1) If any person is aggrieved by the inaction of the police officials in registering the FIR, the modalities contained in Section 190 read with Section 200 of the Code are to be adopted and observed.

(2) It is open to any person aggrieved by the inaction of the police officials to adopt the remedy in terms of the aforesaid provisions.

(3) So far as non-grant of sanction aspect is concerned, it is for the Government concerned to deal with the prayer. The Government concerned would do well to deal with the matter within three months from the date of receipt of this order.

On the plain construction of the language and scheme of Sections 154156 and 190 of the Code, it cannot be construed or suggested that there can be more than one FIR about an occurrence. However, the opening words of Section 154 suggest that every information relating to commission of a cognizable offence shall be reduced into writing by the officer-in-charge of a police station. This implies that there has to be the first information report about an incident which constitutes a cognizable offence. The purpose of registering an FIR is to set the machinery of criminal investigation into motion, which culminates with filing of the police report in terms of Section 173(2) of the Code. It will, thus, be appropriate to follow the settled principle that there cannot be two FIRs registered for the same offence. See. Anju Chaudhary v. State of U.P., reported as (2013) 6 SCC 384.

It is further held that however, where the incident is separate; offences are similar or different, or even where the subsequent crime is of such magnitude that it does not fall within the ambit and scope of the FIR recorded first, then a second FIR could be registered. The most important aspect is to examine the inbuilt safeguards provided by the legislature in the very language of Section 154 of the Code. These safeguards can be safely deduced from the principle akin to double jeopardy, rule of fair investigation and further to prevent abuse of power by the investigating authority of the police. Therefore, second FIR for the same incident cannot be registered. Of course, the investigating agency has no determinative right. It is only a right to investigate in accordance with the provisions of the Code. See. Anju Chaudhary v. State of U.P., reported as (2013) 6 SCC 384.

In the case of Lalita Kumari v. State of U.P.,reported as (2012) 4 SCC 1, Hon’ble Apex Court has held as under:

“94.We deem it appropriate to give a brief ratio of these cases.”

94.1. In the case of State of Haryana vs. Bhajan Lal reported as 1992 SCC(Cri.) 426, this Court observed as under(SCC p.355 para 33):

“33. It is, therefore, manifestly clear that if any information disclosing a cognizable offence is laid before an officer in charge of a police station satisfying the requirements of Section 154(1) of the Code, the said police officer has no other option except to enter the substance thereof in the prescribed form, that is to say, to register a case on the basis of such information.”

94.2. In Ramesh Kumari vs. State (NCT of Delhi) reported as (2006) 2 SCC 677:(SCC p. 681, para 5) “5. … the provision of Section 154 of the Code is mandatory and the officer concerned is duty-bound to register the case on the basis of such an information disclosing cognizable offence.”

94.3. In Parkash Singh Badal vs, State of Punjab reported as (2007) 1 SCC 1 this Court observed as under: (SCC p. 41, para 68) “68. It is, therefore, manifestly clear that if any information disclosing a cognizable offence is laid before an officer in charge of a police station satisfying the requirements of Section 154(1) of the Code, the said police officer has no other option except to enter the substance thereof in the prescribed form, that is to say, to register a case on the basis of such information.”

94.4 In Aleeque Padamsee vs. Union of India reported as (2007) 6 SCC 171 this Court observed as under: (SCC p. 175, para 7) “7. … The correct position in law, therefore, is that the police officials ought to register the FIR whenever facts brought to their notice show that cognizable offence has been made out.”

95.There is another set of cases where this Court has taken a contrary view.

95.1. In Rajinder Singh Katoch vs. Chandigarh Admin., reported as (2007) 10 SCC 69 : this Court observed as under: (SCC p. 71, para 11) “11. We are not oblivious to the decision of this Court in Ramesh Kumari v. State (NCT of Delhi) [(2006) 2 SCC 677 : (2006) 1 SCC (Cri) 678] wherein such a statutory duty has been found in the police officer. But, as indicated hereinbefore, in an appropriate case, the police officers also have a duty to make a preliminary enquiry so as to find out as to whether allegations made had any substance or not.”

95.2 In State of u.p vs. Bhagwant Kishore Joshi reported as AIR 1964 SC 221: Mudholkar, J. in his concurring judgment has observed as under: (AIR p. 227, para 18) “18. … I am of opinion that it is open to a police officer to make preliminary enquiries before registering an offence and making a full-scale investigation into it.”

95.3. In P. Sirajuddin vs, State of Madras reported as (1970) 1 SCC 595, this Court quoted the observations of the High Court as under: (SCC p. 600, para 12) “(a) ”substantial information and evidence had been gathered before the so-called first information report was registered’;”

95.4. In Sevi and Another vs, State of Tamilbadu reported as 1981 Supp SCC 43, this Court observed as under: (SCC p. 44, para 3) “3. … If he was not satisfied with the information given by PW 10 that any cognizable offence had been committed he was quite right in making an entry in the general diary and proceeding to the village to verify the information without registering any FIR.”

The Constitutional Bench of Supreme Court held in the case of Lalita Kumari v. Govt. of U.P., (2014) 2 SCC 1 has observed as follows-

Although, we, in unequivocal terms, hold that Section 154 of the Code postulates the mandatory registration of FIRs on receipt of all cognizable offences, yet, there may be instances where preliminary inquiry may be required owing to the change in genesis and novelty of crimes with the passage of time. One such instance is in the case of allegations relating to medical negligence on the part of doctors. It will be unfair and inequitable to prosecute a medical professional only on the basis of the allegations in the complaint.

Similarly, in CBI v. Tapan Kumar Singh, (2003) 6 SCC 175 : 2003 SCC (Cri) 1305 , this Court has validated a preliminary inquiry prior to registering an FIR only on the ground that at the time the first information is received, the same does not disclose a cognizable offence.

As was observed in See. Ram Khelawan vs State Of U.P. & 6 Ors. Judgment dated 8 January, 2021, therefore, in view of various counterclaims regarding registration or non-registration, what is necessary is only that the information given to the police must disclose the commission of a cognizable offence. In such a situation, registration of an FIR is mandatory. However, if no cognizable offence is made out in the information given, then the FIR need not be registered immediately and perhaps the police can conduct a sort of preliminary verification or inquiry for the limited purpose of ascertaining as to whether a cognizable offence has been committed. But, if the information given clearly mentions the commission of a cognizable offence, there is no other option but to register an FIR forthwith. Other considerations are not relevant at the stage of registration of FIR, such as, whether the information is falsely given, whether the information is genuine, whether the information is credible, etc. These are the issues that have to be verified during the investigation of the FIR. At the stage of registration of FIR, what is to be seen is merely whether the information given ex facie discloses the commission of a cognizable offence. If, after investigation, the information given is found to be false, there is always an option to prosecute the complainant for filing a false FIR.

Conclusion/Directions

120. In view of the aforesaid discussion, we hold:

120.1. The registration of FIR is mandatory under Section 154 of the Code, if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation.

120.2. If the information received does not disclose a cognizable offence but indicates the necessity for an inquiry, a preliminary inquiry may be conducted only to ascertain whether cognizable offence is disclosed or not.

120.3. If the inquiry discloses the commission of a cognizable offence, the FIR must be registered. In cases where preliminary inquiry ends in closing the complaint, a copy of the entry of such closure must be supplied to the first informant forthwith and not later than one week. It must disclose reasons in brief for closing the complaint and not proceeding further.

120.4. The police officer cannot avoid his duty of registering offence if cognizable offence is disclosed. Action must be taken against erring officers who do not register the FIR if information received by him discloses a cognizable offence.

120.5. The scope of preliminary inquiry is not to verify the veracity or otherwise of the information received but only to ascertain whether the information reveals any cognizable offence.

120.6. As to what type and in which cases preliminary inquiry is to be conducted will depend on the facts and circumstances of each case. The category of cases in which preliminary inquiry may be made are as under:

(a) Matrimonial disputes/family disputes

(b) Commercial offences

(c) Medical negligence cases

(d) Corruption cases

(e) Cases where there is abnormal delay/laches in initiating criminal prosecution, for example, over 3 months’ delay in reporting the matter without satisfactorily explaining the reasons for delay.

The aforesaid are only illustrations and not exhaustive of all conditions which may warrant preliminary inquiry. See. Ram Khelawan vs State Of U.P. & 6 Ors. Judgment dated 8 January, 2021

Criminal Law

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