Crpc Project On Delay In Submission Of Fir Report

DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY VISAKHAPATNAM, A. P., INDIA.

PROJECT TITLE: DELAY IN SUBMISSION OF FIR REPORT

SUBJECT: CRIMINAL PROCEDURE CODE

NAME OF THE FACULTY: ASST. PROF. SOMA BHATTACHARJYA

NAME OF THE STUDENT: SANSKAR JAIN

ROLL NO: 18LLB080 SEMESTER – IV SECTION – B

ACKNOWLEDGMENT:

I am highly indebted to my Hon’ble Criminal law Assistant Prof. Soma Bhattacharjya for giving me a wonderful opportunity to work on the topic: Delay in submission of FIR Report, and it is because of her excellent knowledge, experience and guidance, this project is made with great interest and effort. I would also take this as an opportunity to thank my parents for their support at all times. I have no words to express my gratitude to each and every person who has guided and suggested me while conducting my research work.

TABLE OF CONTENT 1. INTRODUCTION 2. IMPORTANCE OF PROMPT LODGING OF FIR 3. DELAY IN LODGING OF FIR 4. DELAY IN LODGING THE FIR BY INFORMANT 5. DELAY IN RAPE CASES 6. DELAY IN RECORDING OF FIR BY OFFICER INCHARGE OF POLICE STATION 7. ACQUITTAL OF THE ACCUSED BASED ON THE DELAY IN LODGING OF FIR 8. DELAY IN DESPATCHING THE FIR TO THE MAGISTRATE 9. SUGGESTIONS FOR EARLY REGISTRATION OF A CASE 10. CONCLUSION

INTRODUCTION The basic purpose of filing FIR is to set the criminal law into motion and not to state all the minute details therein. The information under section 154 of Cr.P.C is generally known a s F.I.R though 'first is not used in the code. F.I.R is not the be all and end all of every criminal case and is not substantive evidence. It can be used only for limited purposes, like corroborating the maker or for being tendered in a proper case u/sec 32 (1) of Evidence Act or part of informant's conduct u/sec 8 of Evidence Act.1 Prompt lodging of information of commission of cognizable offence at the first available opportunity is supposed to be true version without any addition, embellishment and concoction. The chances of missing links outside influence after thought and additions are removed, where the memory is fresh and information is given without any loss of time. In past their was many hardships in registering a case, as distance of Police Station and Place of occurrence, transport and communication mediums, but some of these factors have been extinguished by the lapse of time. Reasonable delay is always to be excused as has been decided by the Apex Court in many cases, and in codified laws nowhere time have been mentioned, but it is to be written within reasonable time period, as have been explained under. In Bathula Nagamalleswara Rao & Ors. v. State Rep. By Public Prosecutor,2 the Apex court held that Delay in lodging of FIR, if justifiably explained, will not fatal. An undue delay in lodging a First Information Report is always looked with a certain amount of suspicion and should as far as possible be avoided. Delay in lodging FIR can be of three types: (1) Delay in lodging First Information Report by informant; (2) Delay in recording First Information Report by the officer-in-charge of the police station; (3) Delay in dispatching the First Information Report to the Magistrate.

1 2

AIR 1963 AP 252. (2008) 2 SC 188.

IMPORTANCE OF PROMPT LODGING OF FIR The Hon'ble Supreme Court further in State of Karnataka v. Moin Patel and others,3 stated vis-a-vis the issue of delay in despatch of FIR as below: "The matter can be viewed from another angle also. It has already been found by us that the prosecution case is that the FIR was promptly lodged at or about 1.30 AM and that the investigation started on the basis thereof is wholly reliable and acceptable. Judged in the context of the above facts the mere delay in despatch of the FIR - and for that matter in receipt thereof by the Magistrate - would not make the prosecution case suspect for as has been pointed out by a three Judge Bench of this Court in Pala Singh v. State of Punjab,4 the relevant provision contained in Section 157 Cr.P.C. regarding forthwith dispatch of the report (FIR) is really designed to keep the Magistrate informed of the investigation of a cognizable offence so as to be able to control the investigation and if necessary to give proper direction under section 159 Cr.P.C. and therefore if in a given case it is found that FIR was recorded without delay and the investigation started on that FIR then however, improper or objectionable the delayed receipt of the report by the Magistrate concerned, it cannot by itself justify the conclusion that the investigation was tainted and the prosecution unsupportable". ''... In this view of the matter, simply because the FIR in this case was received in the court of the Chief Judicial Magistrate with delay it cannot be said that the FIR in this case is not genuine or that it is tainted or that the prosecution case should be viewed with suspicion. The Hon'ble Supreme Court in the case of Thulia Kali v. State of Tamil Nadu,5 stressed the importance of making prompt report to the police regarding the commission of cognizable offence. It was observed: "First information report in a criminal case is an extremely vital and valuable piece of evidence for the purpose of corroborating, the oral evidence adduced at the trial. The importance of 'the above report can hardly be overestimated from the standpoint of the accused. The object of insisting upon prompt lodging of the report to the police in respect of commission of an offence is to obtain early information regarding the circumstances in which the crime was committed, the names of the actual culprits and the part played by them as well as the names of eye witnesses present at the scene, of occurrence. Delay in lodging the first information report quite often results in embellishment which is a creature of afterthought. On account of delay, the report not only gets bereft of the advantage of spontaneity, danger creeps in of the introduction of coloured version exaggerated account or (1996) 8 SCC 167. (1972) 2 SCC 640. 5 AIR 1973 SC 501.AGH 3 4

concocted story as a result of deliberation and consultation. It is, therefore, essential that the delay in lodging of the first information report should be satisfactorily explained." DELAY IN LODGING OF FIR In Raghbir Singh v. State of Haryana,6 It was held that rushing of victim to hospital to save his life instead of first going to Police Station was a satisfactory explanation for delay. In Ramdas & Ors. v. State of Maharashtra, 7 The honorable Supreme Court decided that mere delay in lodging FIR not by itself necessary fatal to prosecution case. Counsel for the State submitted that the delay in lodging the first information report in such cases is immaterial. The proposition is too broadly stated to merit acceptance. It is doubt true that mere delay in lodging the first information report is not necessarily 'fatal to the case of the prosecution. However, the fact that the report was lodged belatedly is a relevant fact of which the court must take notice. This fact has to be considered in the light of other facts and circumstances of the case, and in a given case the court may be satisfied that the delay in lodging the report has been sufficiently explained. In the light of the totality of the evidence, the court of fact has to consider whether the delay in lodging the report adversely affects the case of the prosecution. That is a matter of appreciation of evidence. There may be cases where there is direct evidence to explain the delay. Even in the absence of direct explanation there may be circumstances appearing on record which provide a reasonable explanation for the delay. There are cases where much time is consumed in taking the injured to the hospital for medical aid and, therefore, the witnesses find no time to lodge the report promptly. There may also be cases where on account of fear and threats, witnesses may avoid going to the police station immediately. The time of occurrence, the distance to the police station, mode of conveyance available, are all factors which have a bearing on the question of delay in lodging of the report. It is also possible to conceive of cases where the victim and the members of his or her family belong to such a strata of society that they may not even be aware of their right to report the matter to the police and seek legal action, nor was any such advice available to them. In the case of sexual offences there is another consideration which may weigh in the mind of the court i.e. the initial hesitation of the victim to report the matter to the police which may affect her family life and family’s reputation. Very often in such 6 7

(2000) 2 SC 717. AIR 2007 SC 155.

cases only after considerable persuasion the prosecution may be persuaded to disclose the true facts. There are also cases where the victim may choose to suffer the ignominy rather than to disclose the true facts which may cast a stigma on her for the rest of her life. These are case where the initial hesitation of the prosecution to disclose the true facts may provide a good explanation for the delay in j lodging the report. In the ultimate analysis, what is the effect of delay in lodging the report with the police is a matter of appreciation of evidence, and the court must consider the delay in the background of the facts and circumstances of each case. Different cases have different facts and it is the totality of evidence and the impact that it has on the mind of the court that is important. No straitjacket formula can be evolved in such matters, and each must rest on its own facts. It is settled law that however similar the circumstances, facts in one case cannot be used as a precedent to determine the conclusion on the facts in another.8 In Mahtab Singh & Anr. v. State of U.P., 9 The honorable Supreme Court decided that delay one of the main reasons given by the High Court in upsetting the Judgment of acquittal is that FIR was lodged barely 45 minutes after the incident; the distance of police station being hardly one furlong from the place of occurrence. High Court, however, failed to consider a very material aspect that despite the fact; that police station was situated close and visible from the place of incident, yet PW-1 did not go immediately to police station to report but he first went to Charan singh to have a written report prepared and then went to the police station with written report. The first version of the incident could have been reported at the police station within five minutes of its occurrence. The fact that PW1 took 45 minutes in reporting the incident at the police station rather creates doubt about the truthfulness of the prosecution case and does not rule out false implication of the accused against which PW1 had grudge due to some civil dispute between them. In Satypal v. State of Haryana,10 The honorable Supreme Court decided that This Court can take judicial notice of the fact that ordinarily the family of the victim would not intend to get a stigma attached to the victim. Delay in lodging the First Information Report in a case of this nature is a normal phenomenon. Both the courts below apart from relying on a part of the testimony of the prosecution found the evidence of PW-5 to be absolutely reliable. The Pandurang & Ors. v. State of Hyderabad, AIR 1956 SC 216.. AIR 2009 SC 2298. 10 AIR 2009 SC 2190. 8 9

medical evidence itself being a part of the evidence is required to be appreciated in the context of ocular evidence and other circumstances surrounding thereto. In Dilawar Singh v. State of Delhi, 11 The Apex Court held that in criminal trial one of the cardinal principles for the court is to look for plausible explanation for the delay in lodging the report. Delay sometimes affords opportunity to the complainant to make deliberation upon the complaint and to make embellishment or even make fabrications. Delay defeats the chance of the unsoiled and untarnished version of the case to be presented before the Court at the earliest instance. That is why if there is delay in either coming before the police or before the court, the courts always view the allegations with suspicion and look for satisfactory explanation. If no such satisfaction is formed, the delay is treated as fatal to the prosecution case. DELAY IN LODGING THE FIR BY INFORMANT In Malempati Pattabi Nairender v. Ghattamaneni Maruti Prasad, 12 It was held that FIR prepared on strength of written complaint, scribe not examined, he lived 13 kilometres away from place of occurrence. In this case it was not explained how that scribe was brought to place from such a distance and at what time. Held, there would have been confabulation and deliberations before preparing the written complaint. If delay has occurred in lodging the information by the informant or victim, the officer investigating the case should obtain explanation from the informant in regard to such delay and incorporate the same in the statement of the witnesses. If this is done, no adverse presumption would arise against the prosecution case. In Dalip Singh v. State of Punjab, 13 It was held that the delay in lodging the first information quite often results in embellishment which is a creature of afterthought. On i account of delay the report not only gets bereft of the advantage or spontaneity, danger creeps in of the introduction of coloured version, exaggerated or concocted story as a result of deliberation and consultation. It is therefore, essential that delay in lodging of the first information report should be satisfactorily explained.

AIR 2007 SC 3234. (2000) 2 SC 777. 13 (1953) Cr. L.J. 1465. 11 12

In Lalai alias Dindoo and another v. State of U.P., 14 It was held that: “The only other ground on which Radhey Shyam’s evidence was challenged is that though the incident took place at about 10-30 p.m. on the 25th that Radhey Shyam lodged the First Information Report. This undoubtedly is an important circumstance but the Sessions Court and the High Court have given a reasonable explanation of the delay. The night was dark, the road was rough and the assault so fierce that Radhey Shyam could not have collected his wits to proceed straightway to the police station. There is no indication in the evidence that the names of the appellants were incorporated in the First Information Report as a result of any confabulation.” In Sheelam Rarnesh and another v. State of A.P., 15 It was held that: “It was natural human conduct for the informant PW-1 (who was on the hit list) to run towards the police station as the deceased was hit by guns and suffered injuries. His first duty, in addition to his safety, was to bring police to the place of occurrence and to ensure that medical help be given to the deceased. He came back to the place of occurrence with police and the deceased was taken to the hospital where he succumbed to the injuries at 7-55 p.m. Immediately thereafter, PW-1 returned to the police station and lodged the formal FIR. The doctor PW-6 has deposed that the deceased died at 7-55 p.m. From the above evidence, we hold that there was no delay in filing the FIR. In State of U.P. v. Sughar Singh, 16 It was held that “Witness has clarified the position by stating that it was rainy season, that at several places water had collected on the road, that major part of the road was kachha road and because of that he reached Orai late in the evening and that he first went to his son’s house, dictated a report to his son Lallu and signing the same he carried it to the Police Station where he lodged it at 7-15 P.M. with the Diwanji on duty there. Having regard to the explanation given by the witness, it is impossible to agree with the criticism made that there was delay in lodging the first information report. FIR was lodged at 7:15 P.M. when the occurrence took place at 2:30 P.M. and the Police Station was at the distance of 7 miles only. In Murari Thakur & Anr. v. State of Bihar,17 The honorable Supreme Court decided that delay because father of victim was informed only after he came back at i night. Learned counsel for the appellant then submitted that there was delay in filling the FIR. We are of the AIR 1974 SC 2118. (2000) Crl. L.J. 51. 16 AIR 1978 SC 191. 17 AIR 2007 SC 1129. 14 15

opinion that there is no such delay which can be said to be fatal to the prosecution case. The occurrence took place on 26.8.1998 at 4 p.m. The first informant the father of the deceased, Bhubneshwar Mishra (PW8), was at Sitamarhi and returned home on 8 p.m., when they came to know from his brother Dhaneshwar Mishra that his minor son Bal Krishna Mishra aged about 14 years had been murdered. After Bhubneshwar Mishra learnt about this form his brother Dhaneshwar Mishra (PW4), then he went and lodged the FIR R.K Tiwari (PW11), the investigating officer, has stated in his evidence that it was rainy season and there was flood in the area and he reached the place of the occurrence on the night of 26.8.1998/27.8.1998 at about 1.30 a.m. and I recorded the Fard-e-bayan of the informant. In these circumstances, we are of the opinion that there was no such fatal delay in lodging the FIR. In Balwinder Singh v. Union of India,18 it was held that complaint disclosed commission of cognizable offence, case not registered by Police on the ground that incident was 15 years old and stale. There was no ground to refuse the registration of case; delay per se has never been considered as fatal in criminal proceedings. What is the effect of delay that will be seen by the trial court. However in view of considerable delay, direction issued to S.P. to enquire into allegations and register a case of if cognizable offence was made out. DELAY IN RAPE CASES In these cases it is not only related with the victim but also related with the person of the family of the victim. Many times due to shame and family honor they do not contact to the police immediately and delay causes weaken the prosecution case. In State of Himachal Pradesh v. Prem Singh,19 The honorable Supreme Court decided that the delay in a case of sexual assault cannot be equated with the case involving other offences. There are several factors which weigh in the mind of the prosecutrix and her family members before coming to the police station to lodge a complaint. In a tradition bound society prevalent in India, more particularly, rural areas, it would be quite unsafe to throw out the prosecution case merely on the ground that there is some delay in lodging the FIR. In Harpal Singh v. State of Himachal Pradesh,20 It was held that “Delay of10 days in lodging the first information report stands reasonably explained when the prosecutrix stated that as (1997) 3 RCR 755. AIR 2009 SC 1010. 20 AIR 1981 SC 361. 18 19

honour of the family was involved, its members had to decide whether to take the matter to the Court or no.” It is not uncommon that such consideration delays action on the part of the near relation of a young girl who has been raped. DELAY IN RECORDING OF FIR BY OFFICER INCHARGE OF POLICE STATION FIR is to be written as soon as possible, sometimes officer-in-charge of the police station escape from this essential job because after registration of the case they have to further inquire the case and by this reason they cannot escape from their duty. Sec. 154 Cr.P.C. mandates the officer-in-charge of police station to record first information report as and when he receives information to a commission of cognizable offence. There should not be any delay on the part of the officer-in-charge of police station in recording first information and registering the case upon it. Delay in registration of FIR renders case to the prosecution suspicious. Any explanation given by the police officer is not unbelievable. In State of Maharashtra v. Prakash Sakha Vasave & Ors., 21 The honorable Supreme Court decided that So far as the delay in lodging the First Information Report is concerned, it has been accepted that the informant went to the wrong police station and when he was directed to go to Navapur Police Station, he went there and lodged the FIR. That clearly explains the delay. Delay in filing F.I.R. is, therefore, not fatal. In the I ultimate analysis, High Court was not justified in directing acquittal of A-l and A-2. However, so far as A-3 is concerned, the High Court has indicated sufficient reasons for I holding him not guilty. Same needs no interference. But the reasons indicated for directing acquittal of A-l and A-2 are not justified. We, therefore, set aside the judgment of High Court so far as their acquittal is concerning. But considering the facts of the case, it is apparent that the accused persons were annoyed with the deceased because of his having illicit relationship with another lady while his wife was alive. The case does not fall to the rarest ofrare category. The appropriate sentence would be life imprisonment. The State’s appeal is allowed the extent indicated above. Respondents 1 and 2 were directed to surrender to custody forthwith to serve the remainder of sentence. It is the established principal that if a cognizable offence occurs and the police station is different from the having jurisdiction, report is to be written and must be sent to the concerned police station.

21

AIR 2009 SC 1636.

In Gopaiah v. State of A.P.,22 it was held that mere delay in recording the FIR was caused by the absence of the Sub-Inspector from the police station and as the constable present were illiterate. ACQUITTAL OF THE ACCUSED BASED ON THE DELAY IN LODGING OF FIR In Ishwar Singh v. State of U.P.,23 It was held that “Delay in dispatching the FIR to the Magistrate is a circumstance which provides a legitimate basis for suspecting that the first information report was recorded much later than the stated date and hour affording sufficient time to the prosecution to introduce improvements and embellishments and set up a distorted version of the occurrence. In this case, the suspicion hardens into a definite possibility when one finds that the case made in Court differs at least in two very important particulars from that narrated in the FIR. In this case, the prosecution offered no explanation for the delay of two days in sending the FIR to the Magistrate. The appeal was accepted. In Ganesh Bhavan Patel v. State of Maharashtra,24 It was held “The inordinate delay in registration of the FIR and further delay in recording the statements of the material witnesses, casts a cloud of suspicion on the credibility of the entire warp and woof of the prosecution story. In Babboo v. State of Madhya Pradesh,25 It was held that the FIR was lodged 12 hours after the occurrence and it does not contain the name of the assailants. It would be reasonable inference that for a period of 12 hours after the occurrence the names of the assailants were not disclosed and this would wholly weaken the prosecution case that Phoola Bai, Lachhman and Kanhaiya Lai were witnesses to the occurrence. DELAY IN DESPATCHING THE FIR TO THE MAGISTRATE It is the duty of the officer-in-charge of a police station to send the FIR immediately without any delay to the Magistrate concerned. If there is any delay in sending the FIR to the Magistrate, FIR will become doubtful. If report is received by a Magistrate lately, it can give rise to an inference that FIR was not lodged at that time. But, prosecution can offer satisfactory explanation for the delay in dispatching or receipt of FIR by the concerned

(1978) Cr.L.J. 798. AIR 1976 SC 2443. 24 AIR 1979 SC 135. 25 AIR 1979 SC 1042. 22 23

Magistrate. The prosecution has to lead evidence in this regard. To avoid all these things, it is better for the officer in-charge of a police station to send FIR forthwith after registering.” In Sushil and others v. State of U.P.,26 It was held that “Sec. 157 Cr.P.C. requires :he sending of report forthwith to the Magistrate empowered to take cognizance of the jffence, but every delay in sending the FIR is not fatal to the prosecution case unless ;ome prejudice is shown to have been caused to the accused by such delay. In Badi Guravaiah v. State of A.P.,27 It was held that “Generally the FIRs registered under sections other than grave crimes like Section 302 IPC will be sent in regular course and the FIRs registered under sec. 302 IPC will be sent by express messengers. In this case the FIR was originally registered under Section 324 IPC on 21- 3-1989 and subsequently on receipt of death intimation on 25-3-1989 the section of law was altered to Section 302 IPC and altered FIR was sent on 25-3-1989 which reached the Court on the same day. Mere delay in receipt of the FIR by the Magistrate by itself is not fatal to the prosecution provided it was lodged with the police without any delay and investigation commenced on that basis, unless it is proved that the delay has been given room to concoction. However, the delay has to be considered in the particular facts and circumstances of each case. In this case, immediately after the incident PW 1 went to the hospital taking her injured daughter on the very same night at 4-30 a.m. After examining the injured PW-9 sent Ex. P7 intimation to the police of Gudur Town PS. PW-14 proceeded to the hospital at 5-30 a.m. on the same night and recorded the statement Ex. P-1 from PW-1. So practically there is no delay in giving the FIR. Immediately after receipt of Ex. P-1 and P-7, PW-17 registered the case and started investigation. The very fact that the injured was sent to the hospital immediately and the statement Ex. P-1 was recorded at 5-30 a.m. itself shows that prompt action was taken in the matter. In these circumstances, the mere delay in dispatch of the FIR is not a circumstance which can throw the case of the prosecution in its entirety.

SUGGESTIONS FOR EARLY REGISTRATION OF A CASE

26 27

(1994) 4 CCR 816. (1994) 2 ALT (Crl.) 125.

A. Protection to the Informants- At present a person feels frightened when he approaches to the Police; fear of person who has committed crime may be one of the reasons and second is the non co-operation of the police for Non-registration and delay in registration of the case (FIR). Every informant should be given protection for the purpose that he can help the Criminal Justice delivery system fearlessly. Persons who are related directly or indirectly to the information feel comfortable that when required they will receive adequate help from the Police related to their protection and relevant help if required. Safeguard measures should be put in place to monitor these precautions and their real implementation B. Condonation of Reasonable delay in Lodging FIR- Delay in many cases brings the prosecution case out of the court and court has to look into the matter seriously for the purpose so that justice may be done to the victim person. All reasonable delay in lodging the FIR must be condoned in the interest of Justice and the accused should not be allowed to take defences of technicalities and delay in Justice delivery system. C. Knowledge of Modern Scientific and Technical tools- In India there is high illiteracy rate. People are not aware of the new methods of scientific investigations. Even in many cases decided by the Supreme Court it has been discussed that some victims do not know that prompt registration of the case is necessary and delay will throw out their case out of the court. Literacy rate in developed countries is high and the citizens of these countries use the technology in the manner as they are familiar in using the same. In compare to these countries, in our country citizens of rural area have no knowledge of using these gadgets in a responsible manner. This is also a hindrance in the issuing of the multipurpose citizenship cards. Only awareness about this will increase accountability in a citizen and in knowing their rights and duties. If the citizens are not aware of the general and basic technology they can not take part in the criminal justice delivery system. For example if a person does not know how to use ATM and their proper use, use of password, criminals and dishonest person will take benefit of the same and withdraw their money. Legal awareness camp regarding the rights and duties of a responsible citizen will help in disseminating the use of multipurpose citizenship cards. Steps should be taken in this regard. D. FIR in Special Cases- In matrimonial cases unless it is proved that cognizable offence is occurred or not then the case (FIR) is not to be registered. These types of cases are

of serious nature and must deal accordingly and these types of institutions must be ended Like, Woman Protection Cell or any Type of Special cells. Establishment of these institution/ department having quasi-judicial powers are not the solution of any problem and constitutionally invalid. In many cases some intermediaries like Indian Medical Association (IMA) sometimes raises objection that before registering a case against a doctor their recommendation is necessary. This is unfair when there is prima facie a cognizable case occurs it is to be written promptly and undue delay will result in to the injustice to the victim. First Information Report as name itself defines information received by the Police officer first in time is F.I.R. Recommendation by these intermediaries (IMA & Women cell) even after six months are not to be treated as F.I.R. (First Information Report). E. Reckless/ Irresponsible members of the police force- The culprits from the police force responsible for indulging in unlawful acts/ delay/ non registration of a case should be given suitable punishment. There is no doubt, that such effective judicial intervention would sufficiently deter the erring policeman.

CONCLUSION

Delay in lodging the first information report quite often results in embellishment which is a creature of afterthought. On account of delay, the report not only gets bereft of the advantage of spontaneity, dangers creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. But mere delay in lodging the FIR cannot be a ground by itself for throwing the entire prosecution case over board. The Court has to seek an explanation for delay and test the truthfulness and plausibility of the reason assigned. If the delay is explained to the satisfaction of the court it cannot be counted against the prosecution. But if the prosecution fails to come up with a reasonable explanation for the delay then it may prove fatal and the court may look at the prosecution’s story with suspicion.