Questions And Answers By Justice V. Ramkumar(4) -Investigation By Police-PART IV

Q.16 In a corruption case the trap as well as the investigation was conducted by a DySP of Police in a station where a Superintendent of Police ("SP" for short) was available. When the charge-sheet was filed before the Special Judge the incompetence of the DySP to conduct the investigation was pointed out and the Special Judge directed re-investigation by the SP and accordingly fresh investigation was conducted by the SP. During the trial of the case when one of the prosecution witnesses deviated from his earlier stand taken during the investigation by the DySP, the prosecutor declared the witness hostile and attempted to cross examine him with reference to the statement given by him to the DySP. This was objected to by the defence contending that the initial investigation conducted by the DySP was illegal and non est. Can the prosecutor be allowed to proceed with the trial as attempted by him ?

Ans. Yes. The objection raised by the defense cannot be sustained. The investigation conducted by the DySP although without sufficient authority, is nevertheless investigation in the eye of law. It cannot be treated as non est. (Vide para 5 of Bhanuprasad Hariprasad Dave v. State of Gujarat AIR 1968 SC 1323 = 1968 Cri.L.J. 1505 – 3 Judges – G. K. Mitter, C. K. Vaidyalingam, K. S. Hegde - JJ).

Q.17 Is not an FIR a substantive piece of evidence and what is its use ?

Ans. No. It is not a substantive piece of evidence and can be used to corroborate or contradict the statement of the maker at the trial but cannot be used to corroborate or contradict other witnesses. (Vide –

Nisar Ali v. State of U.P AIR 1957 SC 366 = 1957 Cri.L.J. 550 -3 Judges – P. N. Bhagwati, B. P. Sinha, J. L. Kapur - JJ;

Surjit Singh v. State of Punjab 1993 Supp. (1) SCC 208 = AIR 1992 SC 1389 – M. M. Punchhi, B. P. Jeevan Reddy – JJ;

State of Punjab v. Mohri Ram 1994 Supp. (1) SCC 632 – K. Jayachandra Reddy - J;

Bheru Singh v. State of Rajasthan (1994) 2 SCC 467 – Dr. A. S. Anand, Faizan Uddin - JJ;

State of U.P. v. Babul Nath (1994) 6 SCC 29 - Dr. A. S. Anand, Faizan Uddin - JJ;

State of Gujarat v. Anirudhsing (1997) 6 SCC 514 = AIR 1997 SC 2780 – K. Ramaswamy, D. P. Wadhwa - JJ;

Para 5 of Bijoy Singh v. State of Bihar (2002) 9 SCC 147 = AIR 2002 SC 1949 – R. P. Sethi, D. M. Dharmadhikari - JJ;

Para 15 of Ravi Kumar v. State of Punjab (2005) 9 SCC 315 = AIR 2005 SC 1929 – Arijit Pasayat, S. H. Kapadia – JJ ;

Para 18 of Ashram v. State of M.P. (2007) 11 SCC 164 = AIR 2007 SC 2594 – S. H. Kapadia, B. Sudershan Reddy - JJ;

Paras 16 and 18 of Viswanathan v. State (2008) 5 SCC 354 = AIR 2008 SC 2222 – S. B. Sinha, V. S. Sirpurkar – JJ;

Para 38 of Pandurang Chandrakant Mhatre v. State of Maharashtra (2009) 10 SCC 773 – D. K. Jain, R. M. Lodha - JJ).

Paras 11 and 12 of Kirender Sarkar v. State of Assam (2009) 12 SCC 342 = AIR 2009 SC 2513 – Dr. Arijit Pasayat, Dr. Mukundakam Sharma – JJ.

FIR can be used only for the purpose of corroborating or contradicting the maker thereof. (Vide Babu Singh v. State of Punjab (1996) 8 SCC 699 = AIR 1996 SC 3250 – Faizan Uddin, G. B. Pattanaik - JJ).

FIR cannot be used to discredit the testimony of any person other than the maker of the FIR. (Vide Andrews v. State of Kerala (2002) 10 SCC 126 – G. B. Pattanaik, M. B. Shah – JJ ).

Where the informant did not support the prosecution case and was declared hostile, it does not follow that the FIR would loose all its relevancy and cannot be looked into for any purpose. Although it is not a substantive piece of evidence it is certainly a relevant circumstance of the evidence produced by the Investigating Agency. (Vide paras 13 and 14 of Bable @ Gurdeep Singh v. State of Chattisgarh (2012) 11 SCC 181 = AIR 2012 SC 2621 – Swatanter Kumar, Ranjan Gogoi - JJ).

FIR being the earliest version, is of importance in appreciating the evidence of witnesses, though it is not a piece of substantive evidence. (Vide –

Ladha Shamji Dhanani v. State of Gujarat 1993 Supp. (1) SCC 20 = AIR 1992 SC 956 – K. Jayachandra Reddy, R. C. Patnaik - JJ;

Para 15 of Kalyan v. State of U.P. (2001) 9 SCC 632 = AIR 2001 SC 3976 – M. B. Shah, R. P. Sethi – JJ ;

Budh Singh v. State of U.P. (2006) 9 SCC 731 = AIR 2006 SC 2500 – S. B. Sinha, P. P. Naolekar – JJ ;

Para 9 of Mahmood v. State of U.P. (2007) 14 SCC 16 = AIR 2008 SC 515 – Altamas Kabir, B. Sudershan Reddy - JJ;

Para 11 of Sujoy Sen @ Sujoy Kumar Sen v. State of W.B. (2007) 6 SCC 32 = 2007 Cri.L.J. 3727 – S. B. Sinha, Markandey Katju - JJ;

Ramesh Maruti Patil v. State of Maharashtra AIR 1994 SC 28 = 1994 Cri.L.J. 8 – M. M. Punchhi, S. C. Agrawal – JJ).

Where the examination of the first informant has been dispensed with by consent, FIR would become part of the prosecution evidence. (Vide Malkiat Singh v. State of Punjab (1991) 4 SCC 341 = 1991 KHC 1169 (SC) – 3 Judges – A. M. Ahmadi, V. Ramaswami, K. Ramaswamy - JJ).

FIR by itself cannot be the basis for deciding the culpability of the assailants in every case. (Vide Shrimant Yankappa Dhramatti v. State of Karnataka 1994 Supp. (3) SCC 332 = 1994 SCC (Cri) 1723 – K. Jayachandra Reddy, J. N. Ray – JJ ).

Q.18 Does the Cr.P.C. contemplate two modes of registering an FIR ?

Ans. Yes. The first is the duly signed FIR under Section 154 (1) Cr.P.C. given by the informant to the SHO. The second mode of registering the FIR is the one which is registered by the Police itself under Section 157 (1) Cr.P.C otherwise than by way of information from an informant under Section 154 (1) Cr.P.C. (Vide para 97 of Lalita Kumari v. Govt. of U.P. (2014) 2 SCC 1 = AIR 2014 SC 187 – 5 Judges – P. Sathasivam – CJI, Dr. B. S. Chauhan, Renjana Prakash Desai, Renjan Gogoi, S. A. Bodbde - JJ).

NOTE: A case where a Police party detects a cognizable offence while on patrol duty and submitting a suo motu report regarding the offence and registering an FIR will be the second kind of FIR referred to above.

The chance recovery made in State of Punjab v. Balbir Singh (1994) 3 SCC 299 = AIR 1994 SC 1872 – S. Ratnavel Pandian, K. Jayachandra Reddy – JJ, was one such case.

Similarly, in State v. V. Jayapaul (2004) 5 SCC 223 = 2004 Cri.L.J. 1819 – Ruma Pal, P. Venkatarama Reddy - JJ, is yet another case wherein dissatisfied with the discreet information received, the Police Officer himself conducted a probe and later on suo motu figured himself as the first informant.

Q.19 Should not the FIR contain all the details pertaining to the occurrence and the ingredients of the offence?

Ans. No. The law does not require the mentioning of all the ingredients of the offence in the FIR. It is only after completion of the investigation that it may be possible to say whether any offence is made out on the basis of the evidence collected by the investigating agency. (Vide para 22 of CBI v. Tapan Kumar Singh (2003) 6 SCC 175 = AIR 2003 SC 4140 – N. Santhosh Hegde, B. P. Singh - JJ).

An FIR is not an encyclopedia which must disclose all the facts and details relating to the offence reported. A first informant need not necessarily be an eye-witness so as to be able to disclose in great detail all the aspects of the offence committed. What is of significance is that the information given must disclose the commission of a cognizable offence. (Vide –

Para 20 of CBI v. Tapan Kumar Singh (2003) 6 SCC 175 = AIR 2003 SC 4140 N. Santhosh Hegde, B. P. Singh - JJ;

Para 7 of Surjit Singh @ Gurmit Singh v. State of Punjab 1993 Supp. (1) SCC 208 = AIR 1992 SC 1389 – M. M. Punchhi, B. P. Jeevan Reddy - JJ;

Para 66 of State of U.P. v. Krishna Master (2010) 12 SCC 324 = AIR 2010 SC 3071 – Harjit Singh Bedi, J. M. Panchal - JJ;

Paras 20 and 21 of Budh Singh v. State of M.P (2007) 10 SCC 496 – S. B. Sinha, Markandey Katju - JJ;

Paras 9 and 12 of Gunnana Pentayya v. State of A.P (2009) 16 SCC 59 – Dr. Arijit Pasayat, Dr. Mukundakam Sharma - JJ;

State of Maharashtra v. Mohd. Sajid Husain Mohd. S Husain (2008) 1 SCC 213 = AIR 2008 SC 155 – S. B. Sinha, Harjit Singh Bedi - JJ;

Paras 12 and 15 of Ramesh Baburao Devaskar v. State of Maharashtra (2007) 13 SCC 501 = 2008 Cri.L.J. 372 – S. B. Sinha, Harjit Singh Bedi - JJ).

Informant is not expected to disclose all minute details of the occurrence in the FIR. (Vide para 23 of Mahadev Laxman Sarane v. State of Maharashtra (2007) 12 SCC 705 = 2007 Cri.L.J. 3209 – B. P. Singh, Harjit Singh Bedi - JJ).

Failure to mention in the FIR the visibility at night or the existence of electric light, is not fatal. (Vide –

Shakti Patra v. State of W.B 1981 Supp. SCC 24 = AIR 1981 SC 1217 – 3 Judges – S. Murtaza Fazl Ali, Baharul Islam, A. Varadarajan - JJ;

Para 9 of Chittarmal and Moti v. State of Rajasthan (2003) 2 SCC 266 = AIR 2003 SC 796 – Santhosh Hegde, B. P. Singh - JJ).

Omission to mention vital details in the FIR. Held: First informant was falsely introduced by the prosecution as an ocular witness. (Vide Govind Narain v. State of Rajasthan (1993) 3 SCC 343 = AIR 1993 SC 2457 – Dr. A. S. Anand, N. P. Singh - JJ).

Q.20 What is the manner of proving an FIR ?

Ans. Mere production of the document is not enough. Contents of the same have to be proved by examining witnesses. FIR by itself is not an item of evidence without actual proof of the facts stated therein. (Vide para 14 of Roop Singh Negi v. Punjab National Bank (2009) 2 SCC 570 – S. B. Sinha, Cyriac Joseph - JJ).

Part 1: Questions And Answers By Justice V. Ramkumar- Investigation By Police-PART I

Part 2: Questions And Answers By Justice V. Ramkumar- Investigation By Police-PART II

Part 3: Questions And Answers By Justice V. Ramkumar- Investigation By Police-PART III

Part 5: Questions And Answers By Justice V. Ramkumar- Investigation By Police-PART V

Part 6: Questions And Answers By Justice V. Ramkumar- Investigation By Police-PART V