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 This was superseded by Act 5 of 1898, and further substantial changes were brought in by Act 18 of 1923 and Act 26 of 1955.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.
