FIR Can Be Elaborated Upon By Informant But Cannot Be Used To Create Fresh Charges Against Accused: J&K High Court Grants Bail To In-Laws Accused Of Gang Rape

Spotlighting the distinction between elaboration and improvisation with respect to an FIR Justice Sanjeev Kumar has explained,

“While elaboration of what is stated in the FIR by the first informant at the time of recording his or her statement is permissible, the same is not true of improvisation which has the result of creating a new offence against the person accused in the FIR”.

The court made these observations in a case where a woman accused her husband, father-in-law, and brother-in-law of rape and torture. The FIR lodged based on her initial complaint mentioned inappropriate touching by the two brothers-in-law but did not include any allegations of rape. However, the woman later added these accusations in her statement recorded under Section 164 of the CrPC.

Earlier, the accused had filed bail applications which were dismissed, leading them to approach the Supreme Court of India with a Special Leave Petition (SLP). The Supreme Court, after considering the contentions, directed them to file a fresh bail application before the High Court, which led to the present proceedings.

Arguing their plea for bail the petitioners contended that the initial FIR did not encompass the subsequent accusations and that these later additions were an unjust attempt to fabricate new charges against the accused. They further argued that the detention of the accused based on these new charges was illegal and that the court should grant bail.

Contesting the bail the respondents argued that FIR is not an encyclopedia of the entire happening and, therefore, the prosecutrix or the first informant is well within his/her rights to explain and elaborate what is contained in the FIR. Contradiction between FIR and the statement of respondent recorded under Section 164 of Cr. P. C cannot be taken to mean that the charge against the petitioners is frivolous and unsustainable, they submitted.

Justice Kumar, while acknowledging that FIRs need not contain every detail, established a crucial distinction between elaboration and improvisation. He explained that the former is acceptable, but the latter, which results in creating entirely new accusations, is not.

While acknowledging that an FIR is not required to contain all facts and details of the reported offence Justice Kumar said that the informant can file an FIR without knowing the names of the victim or the assailant and doesn't need to be an eyewitness to provide detailed information.

However, the court added that a distinction arises when the informant is the victim themselves, suggesting different expectations for the details provided in such cases.

In this case, the court found the woman's late introduction of rape charges suspicious, especially since her initial complaint lacked any mention of them.

“The manner in which the respondent No.2 has improvised at every stage brings the prosecution case of gang rape against the petitioners in the realm of suspicion. The allegations projected by the respondent No.2 for the first time in her statement recorded under Section 164 of the Code of Criminal Procedure do not inspire much confidence of the Court”, the bench recorded.

Pointing out to a statement made by the respondent before the Court in a petition under Domestic Violence Act alleging rape by her father-in-law the court said,

“There is, thus, clear tendency seen in the respondent No.2 to improvise and make fresh allegations involving her in-laws in the heinous offences in a bid to settle score for her disturbed marital life”.

Based on these observations, the court allowed the bail plea. However, it clarified that these remarks were limited to the bail application and did not prejudge the case's merits.

Case Title: WASEEM AKRAM & ANR Vs UT OF J&K AND ANR

Citation: 2024 LiveLaw (JKL) 134

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