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The topic of FIR is very vast and complicated. A whole body of judgments exist. However, the thrust here is to cater to common man and therefore, the thrust is on such issues.
(a) Delay in Lodging FIR – by Victim or Informant:
Sometimes, there may be delay in reporting a crime to the police. The reasons for delay may be many and varied, ranging from simple lack of knowledge about the occurrence of an act which can be categorised as a crime or deliberate delays which may be either bona fide or mala fide.
Some of the factors which may result in delay in lodging FIRs can be distance between the nearest PS and the place of commission of crime; time of the commission of crime; lack or non-availability of conveyance/transport for informant; type of crime; societal and financial status of the aggrieved party; the local customs, traditions and culture especially for crime against women or weaker/deprived sections of the society; the area which the victim belongs etc.
However, what is an acceptable delay would, obviously depend on each case. Even if there is a delay, a reasonable explanation is usually enough to offset the negative impact, if any. For example, even a 10 days delay in a rape case (explanation - that honour of the family of victim was involved) may be justified.
If a delay is there in reporting the crime to the police, the police Cannot refuse registration of the case – although it should be as soon as possible. The delayed registration is only prejudicial to the case because delays can bring in vital omissions or additions into the ‘true story’ which could lead to the trial being adversely effected. These omissions or additions may be intentional or un-intentional or even just due to loss of ‘ability to recollect’ fairly and truly. However, police cannot refuse to register FIRs because of delays.
Usually, all reasonable delays 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.
(b) Delay in Registering FIR – by Police
Sometimes, police may choose to first visit the scene of the crime to ascertain more details about the incident and records the FIR subsequently based on statements of witnesses present at the spot. This, in case of cognisable offences, is an incorrect practice. The correct process is for police to first register the complaint and investigate.
Inordinate delays on account of trying to visit he place of occurrence before registering FIRs is likely to result in the FIR being quashed on the ground of inordinate delay. However, in cases where danger to life and property is imminent, attempts should be made to make sure that the victim lives and property is salvaged. Therefore acts of this nature which lead to delays in filing FIR are acceptable.
However, if the delay is unexplained then such a delay could prove fatal for the prosecution case although even in such cases delay alone is not sufficient to prove fatal to the prosecution.
If police wants to conduct a preliminary enquiry, it should be clearly record the fact of doing so and the reasons for so doing, so that delays in registering FIRs can be explained appropriately.
(c ) Multiple FIRs -No Second FIR:
Traditionally, Hon’ble Supreme Court of India has expressed its views on delay in registering FIR and laid down that there cannot be a second FIR. The first statements and story of informant is to be penned down in the FIR and if there is a second complaint, the scope of getting a first-hand information is narrowed down.
However, modern times and communication technology have meant that the same information could lead to multiple causes of action especially in cases where interpretation of acts/omissions as crimes are dependent on individual perceptions. These are particularly so where the crimes are of hate or crimes involving causing hurt to feelings of others eg Section 153A Promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony. These are crimes which could, perhaps, effect every person differently and not everyone may muster the courage to speak out for fear of reprisals.
Recent past has witnessed multiple FIRs being registered in States of Rajasthan, Chhattisgarh and Maharashtra etc on ‘hate crimes’ or ‘misleading statements’. As of today, the Supreme Court, has intervened and has disallowed multiple investigations – usually the place where the telecast was made (place of studio/broadcaster headquarters). However, it is debatable whether the offence took place only in one place. The victims, in such cases are dispersed widely and could perhaps register FIRs elsewhere too.
As things stand today, the first FIR is usually investigated, irrespective of jurisdiction. The other FIRs can be clubbed together or could form statements of witnesses.
Law is an evolving process and reflect the society’s conscience and thinking at a particular time. Therefore, although, as of now multiple FIRs are not allowed, things, may change, in future.
(d) What happens if My Name is in FIR:
There is a presumption of innocence. However, the way the Indian Criminal Justice system functions, despite the fact that an FIR is merely a report which sets the investigation into motion, a lot of value is accorded to what is mentioned in the FIR. If the name of an accused is mentioned in the FIR, the investigators, more often than not, would presume it to be correct and a lot of effort goes into proving the case against the ‘named accused’. In some Hind-Urdu speaking states, such accused are called ‘naamzad’ (named).
Though there is not a presumption of guilt but there is a ‘presumption of truth’ attached to the initial statement by way of an FIR – it is believed that the FIR, which was recorded immediately after an incident would be a ‘truthful or near truthful rendition’ of the incident – the sequence, place, time, people involved and even if any articles were used etc. Since the value attached to an FIR is high, the police or the investigator will attach a great degree of significance to the names figuring in the FIR.
If names of persons figure in the FIR, they may be in the category of accused (accomplices and co-conspirators or abettors), witnesses or even as victims. Depending on which category one falls in, the investigators may approach the persons differently.
While witnesses and victims may not face problems, the accused persons (naamzad) may have difficulties and may even run the risk of being arrested by police, either based on statements of witnesses (separately during investigation or merely being mention in FIR) or based on other evidence collected subsequently. The police may also seek ‘remand’ for custodial interrogation of accused persons or suspects or even witnesses (in a few cases).
Where one’s name features in the FIR, unless the police files a ‘final report’ to the magistrate absolving the person, the needle of suspicion would always remain and could tarnish the person’s name or image, even if one is not convicted. If a ‘final report’ by police does not clear an accused, it is up to the judicial magistrates to give a ‘clean chit’.
However, if during the investigation, the investigating officer (IO) (or his supervisory officers), does not find adequate evidence to substantiate a ‘prosecution’ against the accused, they may recommend to the magistrate that the accused/suspect (even if his name is in the FIR) be discharged. However, the magistrate may or may not accept the police recommendation (although in most cases, he usually does).
(e) What is an accused is not mentioned in FIR
FIR is merely the commencement of investigation. If an accused or suspect is named, the police would, try to establish his guilt by gathering evidence about the crime and also to link it with the accused. However, if no accused is named in the FIR, even then, the police makes efforts to get to the root of the crime and also find out who is responsible for the crime.
Therefore, omission of a name in the FIR does not, per se, absolve anyone whose name subsequently gets linked to the crime as an accused of the criminal act or omission. In fact there are many such crimes where the accused/suspect are not named in the FIRs.
(f) Can police remove the accused person’s name from a FIR during investigation:
No. The FIR cannot be altered, once registered.
Once the FIR has been filed, a copy of the FIR is sent to the magistrate immediately. This is done so that no tampering is done and the sanctity of the document is maintained.
The police or investigating agency, cannot, remove the name of any person from an FIR, once the name has been included. The only course to exclude a name is to complete the investigation, and in the final report to the magistrate, to exclude the accused/suspect from the final report / ‘charge-sheet’. This exclusion of name of a ‘named accused’ from charge-sheet can be on account of lack of evidence or because the suspect is not at all involved in the criminal act.
Thus also, if an accused/suspect has been arrested and is in custody, based on information in an FIR but there is no evidence of his involvement, he may be released by police or by magistrates.
(g) Can Police Close the FIR :
No.
The police cannot close the FIR as is usually believed. The police, upon completion of investigation has to submit a report to the magistrate requesting or suggesting ‘closure of the case’. It is the magistrate who takes a final call on the ‘closure of the case’ who may even ask the investigating officer to continue further investigation.
Rupin Sharma
(rupinsharma@gmail.com)