This article is written by Alka Nupur Singh who is pursuing a Certificate Course in Advanced Criminal Litigation & Trial Advocacy from LawSikho.
A movement started by Tarana Burke became viral in 2017 on social media with the hashtag Metoo Movement wherein American actress Alyssa Milano shared her story of sexual assault against Harvey Weinstein, a film producer. It took no time for it to spread worldwide and even faster in India. When the movement grew, many Indian women came forward and placed their stories in the public eye. From politician MJ Akbar to actor Alok Nath, the movement made us see many stories of sexual harassment. On 17 Oct 2018, Vinta Nanda registered an FIR in Oshiwara Police Station, Mumbai, alleging rape against Alok Nath in her house in 1998. The actor was booked under Section 376 (Punishment for rape) of the Indian Penal Code. However, Alok Nath got anticipatory bail against the said FIR where the Court observed that the delay in filing FIR results in dangers of colored and exaggerated accounts of an incident. This happened despite the Supreme Court’s observation that delay in filing FIR in cases of rapes and sexual assaults shall be overlooked, particularly in cases of granting anticipatory bail. In the light of such a scenario where delay in lodging FIR plays a key role in granting anticipatory bail, we are going to discuss the issue in detail.
First information report – what is it?
FIR is one of the most crucial ingredients in a criminal case. However, the Code of Criminal Procedure, 1973, does not define the term FIR per se. Though this term gets its mention in Section 207 of CrPC which states that the Magistrate has to furnish the copy of FIR which is recorded under Section 154 (1) of CrPC to the accused. First Information Report can thus be defined as a piece of information of a cognizable offense given to the police officer by the victim or any other person who has the knowledge of the commission of a cognizable offense. It is pertinent to note here that an FIR can be lodged only in cases of a cognizable offense and for the offenses that are non-cognizable in nature, a non-cognizable report can be filed which is also known as NCR. The object of filing an FIR is two-fold. From the point of view of an informant, it is causing a criminal law in motion and from the point of view of authorities, it gives a purpose of tracing an offender who committed an offense and beginning an investigation.
What if offense purports both cognizable and non-cognizable offense?
The chances of incidence are no less where any disclosed information purports both cognizable as well as non-cognizable offense. In such a scenario Section 155 CrPC which sub-section (4) comes into play. Here it is provided that when information discloses an offense some of which are cognizable and others are non-cognizable, then in such cases offenses are deemed to be treated as a cognizable offense and FIR should thus be lodged in such cases.
Essentials of FIR
In Mani Mohan Ghose vs. Emperor, the ingredients of any First Information have been well established. It stated that for any First Information it is important that
- It should be a piece of information.
- It should be in writing. And if the information is given orally, it must be reduced into writing by the police officer in charge.
- The main offense should be cognizable in nature.
After putting down an FIR in writing, it is also necessary that the whole FIR is read over to the complainant. Besides, in FIR the complainant’s signature is essential. It is finally then entered into a daily diary by the officer. The complainant rightfully shall receive the copy of such FIR under clause (2) of Section 154 CrPC and the original must be sent to the Magistrate concerned.
Kinds of information that is not considered as FIR
Not all information given to a police officer can be considered as an FIR. It is the information received in the first instance. Therefore, where a man informs that he saw a woman with her throat cut but the officer did not record the statement, though subsequently written the information given by the woman’s father, it was held that the unrecorded information has to be treated as an FIR and not the information given by the woman’s father.
Also, any cryptic, vague and unauthorized information cannot be treated as an FIR. Any information received after the commencement of the investigation is also not considered as an FIR. Though, mentioning every minute detail of the incident is not an essential condition of FIR as it is stated by the Courts that the FIR cannot be treated as an encyclopedia of all the events. Any information provided over the telephone does not fulfill the requirements of Section 154 of CrPC though it does not affect the admissibility of the document altogether and such requirement can be categorized as a technical formality. In Tehal Singh vs the State of Rajasthan, the court observed that any telephonic message provided to Officer- In-charge of a Police Station and discloses the commission of cognizable offense constitutes as FIR. However, in Dhananjoy Chatterjee vs State of West Bengal, the Supreme Court pointed that any vague information provided over the telephone could not be treated as FIR. However, recently many High Courts established the precedence of treating telephonic messages as FIR if it discloses the essentials required under Section 154 CrPC.
Evidentiary value of FIR
As it is, FIR cannot be used as substantive evidence but its importance in providing the earliest information of the occurrence of crime cannot be ignored. It is used to corroborate the information provided under Section 157 of the Indian Evidence Act, 1872. Also, it is used to contradict witnesses under Section 145 of the Indian Evidence Act.
Under the below-mentioned situations FIR can be used for evidentiary purposes:-
- For impeachment of credit of an informer
- For corroboration purposes: it can be used for corroborating the statement of eyewitnesses
- For contradicting evidence provided by the informant
- For refreshing informer’s memory
- For admission against the informer
- For proving informer’s conduct
- For establishing the identity of accused, witnesses and fixing spot time under Section 9 Indian Evidence Act.
However, FIR can be used as substantial evidence in certain circumstances such as:
- In the case of dying declaration. Here, FIR will be admissible under Section 32(1) of the Indian Evidence Act.
- Where some injuries are being caused in the police station in the presence of SHO and the injured informs the incident to the SHO.
- When the informer fails to recall the facts he has written or stated in the FIR but is certain that those facts were there in FIR when he wrote or stated it.
Aspects of FIR
- The omissions in FIR shall be compared with other evidence to see whether the omitted facts ever happened or not.
- Statements made by the witnesses after lodging of the FIR shall not be fatal to the prosecution.
- Any information disclosed before a Police officer, the police officer is obligated to register a case on the basis of such information.
- The accused is entitled to receive a certified copy of the FIR.
- In cases where the nature of the offense is explained properly and the reluctance of family members and prosecutrix is there to register a case out of concern for the honor of family as in the cases of sexual assault or rape, delay in lodging FIR can be condoned.
- There should be a proper and reasonable explanation for causing a delay in lodging an FIR.
- Mere non-mentioning the name of the accused in FIR is not a sufficient ground to reject the FIR as evidence
- In Kunjan Nadar Radhakrishnan vs State, the court held that only the fact that relatives of the deceased reached the crime scene instead of informing the police, shall not attract adverse inference.
- Mentioning the details of an eyewitness in the FIR increases its credibility however, non-mentioning such witnesses shall not make the information unreliable.
Delay in filing FIR
There is no time frame provided either by the legislature or judiciary to report the occurrence of crime. Though, it is expected to be informed within a reasonable time limit. This time frame to provide information on an offense depends mostly on the facts and circumstances of a case. In the case of State of Rajasthan vs. Om Prakash, where a minor has been raped and FIR was lodged after the gap of nearly 26 hours, the Supreme Court held that the delay does not necessarily affect the case of the prosecution as it is related to the rape of a minor, where the reputation of a family and career of a child is at stake. Similarly, in Ravinder Kumar and another vs the State of Punjab, the Court held that delay of FIR is not illegal. Of course, it is ideal to register FIR within a reasonable time, giving the prosecution a twin advantage. Firstly, the commencement of the investigation. Secondly, it rejects the possibility of any concocted version. Barring these two advantages, the demerits of mere delay in lodging an FIR is not always fatal to the case of prosecution but only if the delay can be sufficiently and satisfactorily explained. Also just delay in filing FIR is not a sufficient reason to quash the FIR. It can just raise a suspicion in the prosecution to look for the possible motive. Still, at any point, it can be condoned with a satisfactory explanation of the reason for such delay.
Bail is a type of short-term release of an accused from judicial custody subject to some conditions imposed. Also, in case the bail is granted the court compels the accused to remain within the jurisdiction of the court and can restrict the movement of the accused within some territorial limits. In the Indian legal system, there are 3 types of bail:-
- Regular Bail under Section 437 and 439 of CrPC.
- Interim bail
- Anticipatory bail under Section 438 of CrPC
If in any non-bailable offense, the accused is having an apprehension of arrest and prima facie the court feels that there are chances of the accused being wrongly framed in the case, the court can grant anticipatory bail. Hence, anticipatory bail is much like a pre-arrest bail and there shall be some reasonable apprehension of the arrest. Both the Sessions Court as well as High Court has the power to grant anticipatory bail.
How the delay in FIR affects anticipatory bail?
Recently, in Sumedh Singh Saini vs the State of Punjab, Hon’able Supreme Court granted anticipatory bail to the former Director-General of Police, Punjab, in relation to Balwant Singh Multani murder case. The Court observed here in many cases delay is not fatal to the prosecution case. But it depends on the facts and circumstances of each case. Here in this case where the delay is of 29 years in the filing of FIR, before which no criminal proceeding has been initiated certainly calls for some colored remark and hence is a valid ground for the grant of anticipatory bail. Similarly, in the case of Bhushan Khanna vs State, it has been mentioned by the courts that inordinate delay in filing of FIR is fatal to the chances of conviction as the medical, scientific, and circumstantial evidence is most likely to vanish. However, in Ram Naresh and others vs the State of Chattisgarh, it has been established that if the prosecution manages to explain sufficiently the reason for the inordinate delay, the delay, in that case, would not be fatal to the case of the prosecution. Similarly, in Tara Singh vs the State of Punjab, it is clearly stated that just delay in filing an FIR cannot be a ground to create a doubt in the case of the prosecution.
It is true that each case has its own merit and the result of every case depends on its individual facts and circumstances. There can be many reasons to grant anticipatory bail in any case. Inordinate delay in filing FIR can be one among many. Though, if this delay can sufficiently be explained, it would not be fatal to the case of the prosecution. In totality, the most important thing to consider here is whether the delay in filing the FIR can be explained or not?
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