First Information Report

 

                                       First Information Report

                      (Pro-victim case law on First Information Report)

-Mitter Sain Meet

 Relevant Provision of Law

Section 154 of Cr.P.C.: Information in cognizable cases

Basic Principles of Law

1. FIR is not an encyclopedia of events.
2. FIR need not be drafted with mathematical accuracy and nicety.
3. Reproduction of all ingredients of offence in the complaint is not required.
4. FIR can be registered on the basis of a Telephonic message.
5. If purpose of Telephonic Message is other than reporting the incidence then FIR cannot be registered.
6. Criminal proceedings may be set in motion even before filing the FIR.
7. On the basis of one incident, two FIRs can be registered. Police can also file two charge-sheets.
8. Mentioning of a wrong Section or non-mentioning of provisions of law is immaterial. What is material is the cumulative effect of the allegations made in the complaint or the FIR.
9. FIR cannot be quashed on the basis of a provision of arbitration in agreement.
10. FIR cannot be quashed on the ground of falsity of facts mentioned in the FIR.
11. FIR cannot be quashed on the plea of counterblast of complaint lodged by petitioner against the complainant of the new FIR.

When a cognizable offence is committed by a person, the aggrieved party or evena stranger can inform about it to the police. After the receipt of information, if the police officer has reason to suspect the commission of an offence to which he is empowered to investigate, such officer is duty bound to register the FIR and start investigation.

1. What FIR should contain and what not

(i) FIR is not an encyclopedia of events

In case Superintendent of Police, CBI v/s Tapan Kr. Singh, 2003 Cri.L.J.2322(1)

Brief Facts of the case

On October 17, 1990 the Superintendent of Police, Central Bureau of Investigation, Calcutta received information from reliable source on telephone that respondent, who was then Director (Personnel), Eastern Coal Fields Limited, was a corrupt officer, in the habit of demanding and accepting illegal gratification. That he had demanded and accepted a sum of rupees one lakh which he was carrying with him while going to Nagpur by Gitanjali Express. Investigating Officer made an entry in the General Diary Register which was as under:- “G.D. Entry No. 681 of 17-10-1990 of C.B.I. S.P.E., A.C.B., CALCUTTA 11.30 hours Information received from a reliable source indicate that Shri Tapan Kumar Singh, Director (Personnel), Eastern Coalfields Limited, Sanctorai, West Bengal is an out and out corrupt official and is in habit of demanding and accepting illegal gratification. Information further revealed that he demanded and accepted huge cash to the tune of Rs. 1 lakh approximately which he would be carrying with him while going to Nagpur by Geetanjali Express on 17-10-1990. He would be boarding the train at Tata. The matter was discussed with the DIG, CBI, Calcutta and it was decided to verify the information by intercepting him enroute and to take other follow up actions, if necessary. Since there is no time for further verification into the matter. I am leaving for Nagpur for Geetanjali Express today (17-10-1990) scheduled to start from Howrah at 13.10 hrs. with a team of C.B.I. officers comprising of Inspector, S. R. Majumdar, Inspector, K. Sarkar, Inspector, S. N. Bhattacharjee and Inspector S. K. Dasgupta, this is as per provision of Section 157 of the Cr. P. C. Sd/- T. K. Sangyal SP, CBI, SPE, ACB, Calcutta” 

On October 18, 1990 at 11.30 hours the police party intercepted the respondent at Nagpur Railway Station and conducted his personal search as well as the search of his belongings as also the search of his residential flat at Nagpur. A huge amount of money was recovered pursuant to such search and the said amount along with other articles was seized. After returning to Calcutta on October 20, 1990 the Superintendent of Police, C.B.I. lodged a First Information Report alleging commission of offences punishable under Section 13(2) read with Section 13(1)(e) of the Prevention of Corruption Act, 1988. On the basis of the said report, R.C. Case No. 51 of 1990 (Calcutta) was registered. Feeling aggrieved, the accused filed a revision petition before the High Court of Calcutta challenging the proceeding and sought quashing of the investigation as well as the General Diary Entry No. 681 of October 17, 1990 and the First Information Report lodged by the Superintendent of Police, C.B.I. He also prayed for return of the money and other articles seized from him by the Superintendent of Police, C.B.I. on October 18, 1990.

Findings of the Hon’ble High Court

The High Court after considering the submissions urged on behalf of the parties came to the conclusion that the General Diary entry did not disclose the commission of a cognizable offence and, therefore, investigation pursuant to such a General Diary Entry was illegal. The First Information Report which was lodged after investigation was conducted in part was also illegal and consequently no case could be initiated on the basis of such an illegal First Information Report. The High Court allowed the Criminal Revision Petition and quashed the G.D. Entry, the First Information Report as well as the investigation, and directed return of the money and articles seized.

Feeling aggrieved, the CBI filed an appeal in the Hon’ble Supreme Court.

Proceedings before the Hon’ble Supreme Court

Plea of the State Counsel

One contention of the State Counsel was that the information recorded in the G.D. Entry does disclose the commission of a cognizable offence. He submitted that even if the contention that after recording the G.D. Entry only a preliminary enquiry was made, not accepted, he is still entitled to sustain the legality of the investigation on the basis that the G.D. Entry may be treated as a First Information Report, since it disclosed the commission of a cognizable offence.

Question of Law

Whether the First Information Report must disclose all facts and details relating to the offence reported?

Findings of the Hon’ble Supreme Court

While deciding this case, the Hon’ble Supreme Court laid down the following important principles of law:-

1. (a) FIR is not an encyclopedia of events.

(b) The informant may lodge a report though he may not know the name of the victim or of the assailants.

(c) The informant may not even know how the occurrence took place.

(d) The Informant may not be an eye-witness to the occurrence.

1. What significant at this stage is:-

Significance is that the information given must disclose the commission of a cognizable offence.

1. Duties and powers of the Police Officer

(a) At this stage, the suspicion of the Police Officer that a cognizable offence has been committed is sufficient to lodge the FIR. It is enough if the police officer suspects the commission of a cognizable offence to lodge the FIR.

(b) It is not necessary for police officer to satisfy himself about the truthfulness of the information.

(c) The police officer is bound to record the information and conduct the investigation.

While laying down these principles, the Hon’ble Supreme Court observed as under:-

Para “20. It is well settled that a First Information Report is not an encyclopedia, which must disclose all facts and details relating to the offence reported. An informant may lodge a report about the commission of an offence though he may not know the name of the victim or his assailant. He may not even know how the occurrence took place. A first informant need not necessarily be an eyewitness so as to be able to disclose in great details all aspects of the offence committed. What is of significance is that the information given must disclose the commission of a cognizable offence and the information so lodged must provide a basis for the police officer to suspect the commission of a cognizable offence. At this stage it is enough if the police officer on the basis of the information given suspects the commission of a cognizable offence, and not that he must be convinced or satisfied that a cognizable offence has been committed. If he has reasons to suspect on the basis of information received, that a cognizable offence may have been committed, he is bound to record the information and conduct an investigation. At this stage it is also not necessary for him to satisfy himself about the truthfulness of the information. It is only after a complete investigation that he may be able to report on the truthfulness or otherwise of the information. Similarly, even if the information does not furnish all the details, he must find out those details in the course of investigation and collect all the necessary evidence. The information given disclosing the commission of a cognizable offence only sets in motion the investigative machinery, with a view to collect all necessary evidence, and thereafter to take action in accordance with law. The true test is whether the information furnished provides a reason to suspect the commission of an offence, which the concerned police officer is empowered under Section 156 of the Code to investigate. If it does, he has no option but to record the information and proceed to investigate the case either himself or depute any other competent officer to conduct the investigation. The question as to whether the report is true, whether it discloses full details regarding the manner of occurrence, whether the accused is named, and whether there is sufficient evidence to support the allegations are all matters which are alien to the consideration of the question whether the report discloses the commission of a cognizable offence. Even if the information does not give full details regarding these matters, the investigating officer is not absolved of his duty to investigate the case and discover the true facts, if he can.

Findings on Facts

While giving finding of the facts of this case the Hon’ble Supreme Court held that the information received by the S.P. CBI clearly spells out the offence of Section 13 of the P.C. Act. The law does not require the mentioning of all the ingredients of the offence in the FIR.

While setting aside the order of the High Court, the Hon’ble Supreme Court observed as under:-

Para “21. In the instant case the information received by the Superintendent of Police, C.B.I. clearly spells out the offence of criminal misconduct under Section 13 of the Prevention of Corruption Act, 1988, inasmuch as there is a clear allegation that the respondent has demanded and accepted a sum of rupees one lakh by way of illegal gratification. The allegation is not as vague and bald as the High Court makes it out to be. There is a further assertion that the respondent is carrying with him the said sum of rupees one lakh and is to board the Gitanjali Express going to Nagpur. The allegation certainly gives rise to a suspicion that a cognizable offence may have been committed by the respondent, which the Superintendent of Police, C.B.I. was empowered to investigate. Therefore, if the Superintendent of Police, C.B.I. proceeded to intercept the respondent and investigate the case, he did only that which he was in law obliged to do. His taking up the investigation, therefore, cannot be faulted.

22.The High Court has also quashed the G.D. Entry and the investigation on the ground that the information did not disclose all the ingredients of the offence, as if the informant is obliged to reproduce the language of the section, which defines “criminal misconduct” in the Prevention of Corruption Act. In our view the law does not require the mentioning of all the ingredients of the offence in the First Information Report. It is only after a complete investigation that it may be possible to say whether any offence is made out on the basis of evidence collected by the investigating agency.

23.XXX

24. We are, therefore, of the considered view that the High Court erred in exercising its revisional jurisdiction to quash the G.D. Entry, the F.I.R. and the investigation undertaken by the Superintendent of Police, C.B.I. in the facts and circumstances of this case. The High Court also erred in granting relief to the respondent by directing the return of the seized amount and other articles. This appeal, therefore, deserves to be allowed and is accordingly allowed. The judgment and order of the High Court is set aside and the appellants are directed to proceed with the investigation in accordance with law and thereafter to take all steps as are required to be taken in law.”

 1. ii) FIR need not be drafted with mathematical accuracy and nicety

In case S.M. Dutta v/s State of Gujarat, 2001 Cri.L.J.4195

Brief Facts of the case  

The original complaints were filed by the Factories Inspector, Adipur on the basis of his visit and inspection to the Factory of the Company situated at Kandla Free Trade Zone, Gandhi-dham. Accused was the Vice-Chairman of the company and at the material time the ‘occupier’ under the Factories Act, 1948. The allegations in the complaint were that adult workers were found working after prescribed working hours in violation of S. 63 of Factories Act, that form No. 14 displayed in factory’s premises did not contain name of said workers as regards working hours that during visit of complainant factory Inspector said workers were working on overtime. Requirement that worker must know his daily placement was not complied with. Entries of periods of work for adults were not made before hand. The accused committed an offence under S. 63 read with Ss. 61, 62 of Act.

The accused filed criminal revision petition in the High Court for quashing the complaint.

The High Court dismissed the petition.

Feeling aggrieved, the accused/appellant filed an appeal in the Hon’ble Supreme Court.

Proceedings before the Hon’ble Supreme Court

Plea of the accused

One contention of the accused was that requirements of Section 61 & 63 of the Factories Act and Section 110 of the Gujarat Factories Rules were complied with. The complaint is vague. The offences committed by the accused have not been mentioned in it. In the absence of specific allegations the complaint is not maintainable.

Question of Law

Whether the complaint should be drafted with mathematical accuracy and nicety?

Findings of the Hon’ble Supreme Court

The Hon’ble Supreme Court held that FIR need not be drafted with mathematical accuracy and nicety.

While holding so, the Hon’ble Supreme Court observed as under:-

Para “9. We respectfully record our concurrence therewith Criminal proceedings, in the normal course of events ought not to be scuttled at the initial stage, unless the same amounts to an abuse of the process of law. In the normal course of events thus, quashing of a complaint should rather be an exception and a rarity than an ordinary rule. The genuineness of the averments in the FIR cannot possibly be gone into and the document shall have to be read as a whole so as to decipher the intent of the maker thereof. It is not a document which requires decision with exactitude neither it is a document which requires mathematical accuracy and nicety, but the same should be able to communicate or indicative of disclosure of an offence broadly and in the event the said test stands satisfied, the question relating to the quashing of a complaint would not arise. ….”

Findings on Facts

While giving finding on the facts of this case, the Hon’ble Supreme Court held that whether the requirements of entries in Form No.14 were complied with or not, requires scrutiny. That scrutiny cannot be made by the Supreme Court at that stage. It is to be adjudicated by the Trial Court. Therefore, the complaint is not fit for the quashing of the initial stage.

While holding so the Hon’ble Supreme Court observed as under:-

Para “19. ….. We have in the complaint a statement that Form No.14 does not stand completed. We have also in the complaint the number of working hours on a day but the requirement of Form No.14, the inspector alleges, does not stand fulfilled. It is too early at this stage, however, to contend that the aforesaid statement does not stand to reason and the complaint needs to be quashed at this stage of the proceeding.

2o. The statute, however, in particular Section 61 specifically requires entries to be made ‘beforehand’ which stands virtually engrafted in Section 63. Compliance with Form No.28 is not in dispute but compliance with Form No.14 and entries to be made therein ‘beforehand’ needs a further scrutiny of facts which at this stage of the proceeding cannot be gone into. User of the expression ‘before hand’ appears in Section 61 which envisages a specific state of facts, which the complainant alleges as not being complied with – criminal complaints ought not to be scuttled at the initial stages and quashing of complaint at the initial stages is rather an exception than a rule. Beneficial legislations have been engrafted on the statute book for the benefit of the socially down-trodden and on the wake of such a situation, it would neither be fair nor be reasonable at this stage to nullify the efforts of an inspector under the Rules. The matter needs further enquiry and investigation as to the factum of entry being made before hand in the register maintained in terms of Section 61 of the Factories Act. It is too early in the day to say that there would not be even a possibility of non- compliance of Section 63 which in turn envisages non-compliance of Section 61 and Section 62 of the Factories Act.

21. A long catena of cases some of which stand referred by us hereinbefore in this judgment signifies one principle rule that the complaints ought not to be quashed at the initial stages unless it is termed to be an abuse of the process of the Court, the complaint in question in our view, cannot be so termed as such we do not find any justification for interference with the order as passed by the High Court.

The Appeals, therefore, fail and are dismissed.”

 iii) Reproduction of all ingredients of offence in the complaint are not required.

In case Rajesh Bajaj v/s State NCT of Delhi 1999 Cri.L.J.1833

Brief Facts of the case

The complainant belonged to a company (M/s. Passion Apparel Private Limited) which manufacture and export readymade garments. On 15-11-1994 fifth accused (Gagan Kishore Srivastava) Managing Director of M/s. Avren Junge Mode Gumbh Haus Der Model approached the complainant for purchase of readymade garments of various kinds and induced the complainant to believe that 5th respondent would pay the price of the said goods on receiving the invoice. Such payment was promised to be made within fifteen days from the date of invoice of the goods which complainant would despatch to Germany. Complainant believed the aforesaid representation as true and on that belief he despatched goods worth 4,46,597.25 D.M. (Deutsch Marks). In March/ April, 1995 accused on receipt of 37 different invoices got the goods released and sold them to others. The accused paid only a sum of 1,15,194 D.M. Complainant further alleged in the complaint that accused induced him to believe that he is a genuine dealer, but actually his intentions were not clear. Complainant also mentioned in the complaint that one of the representatives of appellant’s company went to Germany in October, 1995 for realising the amount on the strength of an understanding reached between them that accused would pay 2,00,000 D.M. in lieu of the remaining part of the price. However, the accused did not honour even that subsequent understanding. Complainant further mentioned in the complaint that he came to know later about the modus operandi which accused adopted in regard to certain other manufacturers who too were duped by the respondent to the tune of rupees ten crores.

The accused filed a revision petition in the High Court with the prayer for the quashing of the FIR.

The High Court quashed the proceedings mainly on the ground that the complaint did not disclose the offence.

Feeling aggrieved, the complainant filed an appeal in the Hon’ble Supreme Court.

Proceedings before the Hon’ble Supreme Court

Plea of the appellant

One contention of the appellant was that factual foundation for the offence has been laid in the complaint. All the ingredients of the offence are not necessarily to be reproduced in the complaint.

Question of Law

Whether it is necessary that complaint should disclose all the ingredients of the offence alleged in the complaint?

Findings of the Hon’ble Supreme Court

The Hon’ble Supreme Court held that re-production of all ingredients of offence in the complaint is not necessary.

While holding so the Hon’ble Supreme Court observed as under:-

Para “9. It is not necessary that a complainant should verbatim reproduce in the body of his complaint all the ingredients of the offence he is alleging. Nor is it necessary that the complainant should state in so many words that the intention of the accused was dishonest or fraudulent. Splitting up of the definition into different components of the offence to make a meticulous scrutiny, whether all the ingredients have been precisely spelled out in the complaint, is not the need at this stage. If factual foundation for the offence has been laid in the complaint the Court should not hasten to quash criminal proceedings during investigation stage merely on the premise that one or two ingredients have not been stated with details…..”

Findings on Facts

While giving finding on the fact of this case, the Hon’ble Supreme Court held that the averments in the complaint make out a case for investigation by the authorities.

While holding so the Hon’ble Supreme Court observed as under:-

Para “11. The crux of the postulate is the intention of the person who induces the victim of his representation and not the nature of the transaction which would become decisive in discerning whether there was commission of offence or not. The complainant has stated in the body of the complaint that he was induced to believe that respondent would honour payment on receipt of invoices, and that the complainant realised later that the intentions of the respondent were not clear. He also mentioned that respondent after receiving the goods have sold them to others and still he did not pay the money. Such averments would prima facie make out a case for investigation by the authorities.

12. The High Court seems to have adopted a strictly hypertechnical approach and sieved the complaint through a cullendar of finest gauzes for testing the ingredients under Section 415, IPC. Such an endeavour may be justified during trial, but certainly not during the stage of investigation. At any rate, it is too premature a stage for the High Court to step in and stall the investigation by declaring that it is a commercial transaction simpliciter wherein no semblance of criminal offence is involved.”

 2. (a) FIR can be registered on the basis of a Telephonic message, if it discloses the commission of a cognizable offence. Its signing by the complainant is not necessary. However, a cryptic telephonic message cannot constitute an FIR.

1. i) In case G. Gundegowda @ Moganna v/s State, 1996 Cri.L.J.852

Brief Facts of the case

The deceased Mallesha was the elder brother of the accused and deceased Yogisha was the son of Mallesha. Gurumurthy (PW1) was another son of deceased Mallesha. There was a dispute between Mallesha and the accused in respect of the kharab land situated in between the lands of the accused deceased Mallesha. On the date of the incident Gurumurthy, deceased Mallesha, and deceased Yogisha had gone to that kharab land and had put up a fence. The accused was the licence holder of S.B.B.L. gun. On 4-8-91 at about 5 p.m. Gurumurthy, Mallesha and Yogisha were returning after putting a fence around the kharab land and on the way the accused suddenly appeared and fired at Mallesha causing injuries resulting in his death and he also fired at Yogisha causing him gun shot injury. When Yogisha managed to hide behind a bush to save himself, the accused picked up a ‘machu’ fallen down on the ground by the side of Mallesha and dealt blows with it on the head, right shoulder and on the right thigh resulting in his death. Gurumurthy ran for his life and escaped from the place of incident. He came to his house and informed about the incident to his mother Rukminiyamma and his uncle Ananda.

He also informed facts of the offence to the S.H.O. on phone. The S.H.O came to Kamanahalli after noting down the phone message that he received from Gurumurthy in the station house diary. He visited the scene of offence and saw the dead bodies. Gurumurthy prepared his complaint and came to the police station and presented his written complaint to the P.S.I. The P.S.I. registered the complaint. After completion of the investigation, police filed charge-sheet in the Court.

The Trial Judge convicted the accused and awarded death sentence.

Feeling aggrieve, the accused filed an appeal in the High Court. It was heard by a Division Bench.

Proceedings before the High Court

Plea of the accused

One contention of the accused was that the police had moved into action after the receipt of the telephone message. It disclosed the commission of a cognizable offence. It should be treated as an FIR. The original FIR was recorded later on and therefore, it was hit by Section 162 Cr.P.C.

Question of Law

1. Whether an FIR on the basis of a telephonic message disclosing commission of an offence can be registered?

2. Whether its signing by the complainant is mandatory?

Findings of the Division Bench of the Hon’ble High Court

After considering a number of judgements of the Hon’ble Supreme Court and other Hon’ble High Courts, the Hon’ble Division Bench of the Karnataka High Court laid down the following principles of law:-

1. (a) A cryptic telephonic message cannot constitute an FIR.

(b) A telephonic message made by an anonymous caller will not amount to an

FIR.

(c) A telephonic message giving only information that an injured person is lying cannot become a basis for the registration of the FIR.

1. FIR can be registered on the basis of a telephonic message if it discloses the particulars required by Section 154 Cr.P.C about the commission of a cognizable offence.

1. Bearing of signature of the informant is not necessary.

While laying down the above principles, the Hon’ble High Court observed as under:-

Para “19. But the learned Public Prosecutor relied on AIR 1970 SC 1566 : (1970 Cri LJ 1415), Tapinder Singh v. State of Punjab, wherein the Supreme Court has held that an anonymous telephone message at police station that firing had taken place at taxi stand does not amount to FIR. But the point to be noted in this Ruling is that the telephone message was anonymous and therefore their Lordships of the Supreme Court had held that such an anonymous telephone message will not amount to an FIR under Section 154, Cr. P.C. The learned Public Prosecutor also relied on (1969) 3 SCC 730 : (AIR 1969 NSC 85), Sakharam v. State of Maharashtra, wherein the Supreme Court has held that a telephonic message that a person was lying injured without indicating that any offence was committed will not amount to FIR. Again the point to be noted in this Ruling is that the message was only to the effect that a person was lying injured. The message did not disclose that any offence was committed, muchless, cognizable offence. In view of these facts of the case, Their Lordships of the Supreme Court have held that it will not amount to an FIR in that case. The learned Public Prosecutor also brought to our notice the Ruling in AIR 1975 SC 1453 : (1975 Cri LJ 1201), Soma Bhai v. State of Gujarat, therein the Supreme Court has held that the first information report is the earliest report made to the police officer with a view to taking his action’ in the matter. In that case the Supreme Court held that a cryptic telephonic message will not constitute an FIR. After perusing the Supreme Court Rulings stated above it is clear that a telephonic message also can be a FIR provided it discloses the particulars required by Section 154, Cr. P.C. about the commission of a cognizable offence. The contention of the learned Addl. P. P. that the telephonic message cannot be an FIR as it does not bear the signature of the informant is also not acceptable in view of the fact that the conditions laid down by Section 154 regarding the reducing into writing the oral complaint and the signing of the complaint is merely procedural. If there is information relating to the commission of a cognizable offence, the mere fact that the police officer did not reduce it in writing which is in fact the first information, will not make it any less a first information…..”

Findings on Facts

After examining the contents of the telephonic message, the Hon’ble High Court held that it disclosed the commission of a cognizable offence. Therefore, it was an FIR.

While holding so the Hon’ble High Court observed as under:-

Para “19. In this case, Ex. P-21 discloses the name of the informant, the phone number from which he sent the message and the names of the two deceased persons, names of the accused and also the death of the two persons named therein due to gun shots fired by the accused. Ex. P-21 discloses the commission of a cognizable offence by the accused and the name of the informant. Merely because it is not signed by P.W. 1 will not make it a less first information report. We think that Ex. P-21 is an FIR., more so when after P.W. 22’s coming over to Kamanahalli, P .W. 1 has confirmed about his having sent the telephonic message to the police. After recording the telephonic message in the Station House Diary, P.W. 22 came to the place of the incident and P.W. 1 confirmed about his having sent the phone message. The phone message was not a hoax in this case. It was a real phone message which has been confirmed by P.W. 1 and which discloses all the ingredients of a commission of a cognizable offence by the appellant. In view of these factors, we think that Ex. P-21 is the FIR, in this case.”

1. ii) In case Sunil Kumar and others v/s State of M.P., 1997 Cri.L.J. 1183

Brief Facts of the case

The accused Hargovind was trying to forcibly take over the land of the deceased and Ramesh, an eye-witness. He was also threatening them that he would cut their hands and legs. Sometimes before the incident the cattle of Sunil Kumar and Hargovind had damaged the standing crops of the deceased and Ramesh. When Ramesh protested a quarrel ensued in course of which he was beaten up with shoes by Hargovind and accused Rafu alias Rafiq. On January 15, 1981 Hargovind and Rafu made an attempt to kill the deceased and Ramesh but failed. Over that incident Ramesh lodged a complaint with the police station. Again on May 30, 1981 Ramesh found that Hargovind had brought the other three accused, who were all residents of Uttar Pradesh, to their village and apprehending that Hargovind might get them killed, the two brothers lodged a written report before the Superintendent of Police, Narsinghapur on June 13, 1981 seeking protection of their lives and properties. The police however did not attend to their complaints.

On July 30, 1981 at or about 9 a.m. the deceased and Ramesh went to their field for measuring the work done by their labourers as that was the day for payment to them. After the measurements, at out about 10.30 a.m. they were returning home to fetch money for payment to those labourers. On the way when they reached the lane in between the fields of Chhotelal Sahu and Dalchand, five accused came from bohind.Of them, Sunil Kumar and Suresh were carrying lathis, Hargovind a hockey stick and Nazim and Rafiq axes. Hargovind first gave a lathi blow on the head of Ramesh and he fell down. Thereafter Rafu and Nazim hacked him with their axis severing his left arm and left foot. All of them then attacked the deceased with their respective weapons in a similar fashion, severing his right hand and right foot. Then they filed away. On hearing the cries of the victims, the labourers, who were working in the field of Ramesh, came to the spot and seeing their condition rushed to their house to inform Imratibai Amrawati, mother of Ramesh and the deceased. On getting the information Amrawati hurried to the spot and heard about the incident from Ramesh. Dayashankar had, in the meantime, succumbed to his injuries. Yogendra Kumar a nephew of the deceased and Ramesh, and some other residents of the village also reached there, Ramesh narrated the incident to them. Yogendra Kumar then went to the village Post Office and reported the incident to the police over telephone. On getting the information, inspector V.K. Saxena came to the site of the incident accompanied by Sub Inspector Mithilesh Tiwari and other Police personnel. Reaching there, he recorded the complaint of Ramesh and forwarded it to the police station for registering a case.

The Trial Court acquitted all the accused. In an appeal the High Court set aside the judgment of the Trial Court and convicted them for the offence of murder.

Proceedings before the Hon’ble Supreme Court

Plea of the accused

One contention of the accused was that the information given by Yogendra Kumar was information regarding the commission of a cognizable offence. It was to be treated as FIR. The names of the accused were not mentioned in the telephonic message, therefore, the later version mentioned in the FIR was a concocted one. The accused were not the culprits and were entitled to acquittal.

Question of Law

Whether entry made in the Daily Dairy Register on the basis of a telephonic message, which discloses the commission of a cognizable offence can be treated as an FIR?

Findings of the Hon’ble Supreme Court

The Hon’ble Supreme Court held that though in the telephonic message, the names of the accused were not mentioned; even then it was an FIR as it disclosed the commission of a cognizable offence.

While holding so the Hon’ble Supreme Court observed as under:-

Para “20. While on this point we wish to mention however that the High Court erred in not treating the telephonic information that PW 3 gave to the police station as the FIR. It is not disputed that PW 3 did give an information to the police station wherein he stated that one person had been killed and another person had been dismembered and it was recorded accordingly in the diary book (Ex. P/17). The same entry discloses, notwithstanding the absence of the names of the assailants therein, a cognizable offence and indeed it is on the basis thereof that PW 6 initially started their investigation. Ext. P/17 will therefore be the FIR.”

Findings on Facts

The Hon’ble Supreme Court further held that even after treating the telephonic message as FIR and the statement of Ramesh as statement recorded u/s 161 Cr.P.C, the merits of the case are not affected.

While upholding the judgment of the High Court, the Hon’ble Supreme Court observed as under:-

Para “20. ……. The statement of Ramesh (Ext. P.2) which was recorded by him in course of the investigation is to be treated as one recorded under Section 161, Cr. P.C. This conclusion of ours, however, does not in any way affect the merits of the prosecution case for we find that immediately after PW 1 was taken to the hospital his statement was recorded by a recorded as a dying declaration which, consequent upon his survival, is to be treated only as a statement recorded under Section 164, Cr. P. C. and can be used for corroboration or contradiction. This statement recorded by the Magistrate at the earliest available opportunity clearly discloses the substratum of the prosecution case including the names of the appellants as the assailants and there is not an iota of materials on record to show that this was the upshot of his tutoring. On the contrary, this statement was made at a point of time when PW 1 was in a critical condition and it is difficult to believe that he would falsely implicate the appellants leaving aside the real culprits.

 2.(b) If purpose of Telephonic Message is other than reporting the incidence then FIR cannot be registered

In case Thaman Kumar v/s State of Union Territory of Chandigarh 2003 Cri.L.J. 3070(1)

Brief Facts of the case

The accused Ashok Kumar (A-1) was owner of house No. 138 in Sector 35, Chandigarh which was converted into a guest house known as “Friends Guest House”. Thaman Kumar (A-2) and Rajesh Singh (A-3) were employed as servants in the aforesaid guest house. The deceased Bhanwar Singh was a rickshaw puller and he used to bring customers to the guest house for which Ashok Kumar (A-1) used to pay him commission. Sometimes he used to sleep in the garage of the guest house. A considerable amount towards commission had fallen due regarding which he made a demand in the night of 23-12-1989 and a dispute took place. At about 12.30 p.m. on the night, A-2 and A-3 strangulated Bhanwar Singh by tying a chadar which had been rolled in the shape of a rope around his neck and pulling it from the two ends. At that time, A-1 sat over the chest of the deceased and had caught his both the hands firmly so that he may not be in a position to offer any resistance. Constables Ram Mehar and Suresh Kumar, who had been assigned parole duty in Sector 35, were passing in front of house No. 138 and heard shrieks raised by deceased Bhanwar Singh. They entered the house after opening the front gate and saw the incident happening in the garage in which electric light was on and the doors were slightly open. They caught hold of A-2 and A-3 on the spot but A-1 managed to escape by scaling the rear boundary wall. Suresh Kumar then gave information about the incident at about 1.05 hours to Police Post in Sector 36 by telephone. He requested the In-charge of the police station to send the force at the scene of occurrence. Surender Kumar, SI, then came to the spot, took stock of the situation and recorded the statement of Constable, Ram Mehar. FIR was registered. Accused were arrested. After completion of investigation the charge-sheet was filed.

Findings of the Trial Court and of the High Court

The Sessions Judge disbelieved the case of the prosecution on the ground that the names of the assailants were not mentioned in the first telephonic message; therefore, their participation in the commission of crime is doubtful, Trial Court acquitted all the three accused.

Feeling aggrieved, the State of Union Territory at Chandigarh preferred an appeal.

The appeal was allowed by the High Court and all three accused were convicted. Feeling aggrieved, accused filed an appeal in the Hon’ble Supreme Court.

Plea of the accused

One contention of the accused was that first telephone message was given to the police post at 01.05 a.m. In that message, the names of the assailants were not mentioned. In fact, it was to be treated as an FIR. As the names were missing in the FIR, the participation of the accused in the commission of murder became doubtful.

Question of Law

Whether a telephonic message not narrating the commission of a crime but only making a request for sending police force to the place of occurrence can be treated as an FIR?

Findings of the Hon’ble Supreme Court

The Hon’ble Supreme Court held that telephonic message not narrating the commission of a crime but only making a request of sending police force to the place of occurrence cannot be treated as an FIR.

Finding on Facts

The Hon’ble Supreme Court held that in the telephonic message the concerned constable made a request to the In-charge of the police post for sending police force. In compliance with that request the In-charge of the police post made an entry in the Daily Diary Register regarding his departure to the scene of occurrence and left the police post. This telephonic message cannot be treated as an FIR.

While holding so the Hon’ble Supreme Court observed as under:-

Para “19. ….The other submission made is that in the first telephonic message given to the police post at 1.05 a.m. the names of the assailants were not mentioned. It is true that Ex. PL which is copy of entry made at 1.05 a.m. in DDR No. 52 of Police Post Sector 36, the names of the assailants were not mentioned and only the fact that three persons were assaulting a person was recorded. PW.4 has stated that he gave telephonic message about the incident at Police Post Sector 36 and made a request for sending police force. The entry in DDR was made by Surender Kumar, SI that after receiving the aforesaid information he is proceeding to the spot along with some other police constables. This was not a First Information Report of the incident but merely an entry made regarding the departure of the police personnel to the place of occurrence and, therefore, the non-mention of the names of the assailants in this entry cannot have any bearing.”

 3. Criminal proceedings may be set in motion even before filing the FIR

In case Sadre Alam Mulic v/s State, 1997 Cri.L.J.2441

Brief Facts of the case

The deceased Abu Bakkar was the husband of the informant Sahara Begum. The deceased had amorous relationship with the 1st wife of the accused Sadre Alam Mullick. On 30- 8-1981 at about 9.00 p.m. after taking the night meal deceased Abu Bakkar came out of his house. The accused, with the help of the other accused forcibly abducted him in presence of the informant and took him to his house. The informant called her brothersin- law and the father-in-law. The brothers-in-law went to the house of the accused and found that deceased was being assaulted with sharp cutting weapon. On being afraid they could not interfere and silently they came back and reported the incident to the informant. The informant raised alarm. At the same time she heard the sound of two firings. The villagers also were attracted and they went to the house of the accused where they also found the dead body of Abu Bakkar with multiple bleeding injuries on his person lying on the ground.

Another important aspect of the case was that on 31-8-1981 at about 6.30 a.m., one of the accused viz. Aminual Haque called at the police station, Indus and informed that when a burglary was being committed in the house of the accused Sadre Alam Mullick on the previous night, the owner of the house assaulted the thief with a cuttery and the thief expired as a result. On the basis of this information Case No. 18 dated 31- 8-81 was registered, under Sections 457/380/307 and 511 of the Indian Penal Code.

On the basis of that information when the police reached the village, they found the dead body of Abu Bakkar lying in the house of the accused Sadre Alam Mullick. They also recorded the statement of the widow of the deceased on the spot which was treated as First Information Report. The formal FIR was drawn up on its basis starting Case No. 19 dated 31-8-81. Ultimately, Case No. 18 dated 31-8-81 ended in a final report with the prayer for starting a case against the informant under Section 211 of the I.P.C. and Case No. 19 dated 31-8-81 ended in charge-sheet against five accused persons under Sections 364/ 34 and 302/34 of the I.P.C.

Findings of the Trial Court

The Trial Court only convicted accused A1 Sadre Alam Mullic U/s 302 IPC. All other accused were acquitted.

Feeling aggrieved, accused filed an appeal in the Hon’ble Calcutta High Court.

Proceedings before the Calcutta High Court

Plea of the accused

One contention of the Defence Counsel was that originally, FIR no.18 dated 31.08.1981 was registered. Later on, it was cancelled. Before the registration of FIR no.19 dated 31.08.1981, the investigation in case no.19 was started. Before registering an FIR, police cannot initiate criminal investigation.

Question of Law

Whether FIR is a condition precident for setting in motion of criminal investigation?

Findings of the Hon’ble Calcutta High Court

The Hon’ble Calcutta High Court held that FIR is not a condition precident for setting in motion of criminal proceedings.

While holding so the Hon’ble Calcutta High Court observed as under:-

Para “8. ….. In fact, we do not find any convincing material on record which may compel us to share such views regarding substituted FIR. It may be mentioned, in this connection, that FIR is not a condition precedent for setting in motion of criminal investigation; but if there is a written FIR that should from the basis of the prosecution case. In Apren Joseph v. State of Kerala reported in AIR 1973 SC 1 : (1973 Cri LJ 185), the Supreme Court has also supported this view.”

 4. On the basis of one incident, two FIRs can be registered. Police can also file two

charge-sheets.

When there are rival versions in respect of the same episode, two different FIRs may be registered and investigated. The police has power to prepare two charge-sheets and to submit them in the Court.

In case Kari Chaudhary v/s Most. Sita Devi & others 2002 Cri.L.J.923

Brief Facts of the Case

Sugnia Devi was the victim who was killed on the night of 27-6-1988. About 10 years prior to her death she was married to Ram Jatan Choudhary, one of the four sons of the accused Sita Devi. She remained childless. On the day which followed her death Sita Devi lodged an FIR with Babu Barhi Police Station alleging that a few persons from outside had sneaked into the bedroom of Sugnia Devi and murdered her by strangulation. FIR No. 135 was registered on the basis of the said complaint and investigation was commenced thereafter.During the progress of investigation the police formed an opinion that the murder  of Sugnia Devi had taken place in a manner totally different from the version furnished by the mother-in-law Sita Devi in the FIR. Police found that the murder was committed pursuant to a conspiracy hatched by her mother-in-law Sita Devi and her other daughtersin- law besides others. The police sent a report to the Court on 30-11-1998 stating that the allegations in FIR No. 135 were false. Police continued with the investigation after informing the Court that they have registered another FIR as FIR No. 208/98. Sita Devi filed a protest complaint before the Chief Judicial Magistrate alleging that the police report dated 30-11-1998 is wholly unsustainable and reiterated that the persons arrayed in FIR No. 135 are the real culprit. The Chief Judicial Magistrate rejected the protest complaint as per his order dated 28-8-1999. Sita Devi challenged the said order in a revision filed before the High Court. The said revision was allowed on 7-2-2000 and the Chief Judicial Magistrate was directed to conduct an inquiry under Section 202 of the Code of Criminal Procedure. The police proceeded with the investigation. They finally concluded the investigation and filed a charge-sheet on 31-3-2000. In the said charge-sheet accused Sita Devi, her two other daughters-in-law, her son Ram Ashish Choudhary and a few others were arraigned for the offence under Section 302 read with Section 34 of the IPC. The Chief Judicial Magistrate before whom the charge-sheet was laid committed the said case to the Court of Sessions. Thereafter, the Sessions Judge framed a charge against the accused so arraigned for the aforesaid offence.

In the meanwhile, the Sita Devi moved the High Court once again for quashing the criminal proceedings lodged against her and others. A single Judge of the High Court of Patna upheld her contention and quashed the criminal proceedings as per the impugned judgment.

Thus, Sita Devi and other accused were totally absolved from the murder charge even without conducting any trial into the said case. That order of the High Court was challenged in the Hon’ble Supreme Court.

Proceedings before the Hon’ble Supreme Court

Plea of the accused

One contention of the accused was that the order of the Magistrate, accepting the final report in FIR No.135, was quashed. Hence a second final report cannot be filed by the police albeit against other accused. It was also contended that there cannot be two FIRs against the same occurrence.

Questions of Law

1. Whether two FIRs can be registered in respect of one occurrence?
2. Whether after cancelling one FIR, police can continue investigation to trace out the real culprits?
3. Whether after filing final report in respect of one FIR, can police file a chargesheet regarding the second FIR?

Findings of the Hon’ble Supreme Court

While deciding this case, the Hon’ble Supreme Court laid down the following principles of law:-

1. When there are rival versions in respect of the same episode two different

FIRs may be registered and investigated.

Para “11. Of course the legal position is that there cannot be two FIRs against the same accused in respect of the same case. But when there are rival versions in respect of the same episode, they would normally take the shape of two different FIRs and investigation can be carried on under both of them by the same investigating agency.”

2. After cancelling the first FIR and filing the final report in Court, police can

continue the investigation to find out the real culprits.

Para “10. The result of the said factual development is this. The complainant Sita Devi in FIR No. 135 is allowed to persist with her complaint despite the conclusion reached by the police that the said complaint was false. But that course adopted by the Court cannot disable the police to continue to investigate into the offence of murder of Sugnia Devi and to reach the final conclusion regarding the real culprit of her murder. The police completed their investigation only when the chargesheet was finally laid on 31-3-2000 against the first respondent Sita Devi and others. The said case has to be legally adjudicated for which a trial by the Sessions Court is indispensable.”

 4.  The police can file charge-sheet, after concluding investigation in the second

FIR.

Para “12. Even otherwise the investigating agency is not precluded from further investigation in respect of an offence in spite of forwarding a report under sub-section (2) of Section 173 on a previous occasion. This is clear from Section 173 (8) of the Code.”

While holding so the Hon’ble Supreme Court observed as under:-

Para “10. The result of the said factual development is this. The complainant Sita Devi in FIR No. 135 is allowed to persist with her complaint despite the conclusion reached by the police that the said complaint was false. But that course adopted by the Court cannot disable the police to continue to investigate into the offence of murder of Sugnia Devi and to reach the final conclusion regarding the real culprit of her murder. The police completed their investigation only when the charge-sheet was finally laid on 31-3-2000 against the first respondent Sita Devi and others. The said case has to be legally adjudicated for which a trial by the Sessions Court is indispensable.

11. Learned counsel adopted an alternative contention that once the proceeding initiated under FIR No. 135 ended in a final report the police had no authority to register a second FIR and number it as FIR 208. Of course the legal position is that there cannot be two FIRs against the same accused in respect of the same case. But when there are rival versions in respect of the same episode, they would normally take the shape of two different FIRs and investigation can be carried on under both of them by the same investigating agency. Even that apart, the report submitted by the Court styling it is as FIR No. 208 of 1998 need be considered as an information submitted to the Court regarding the new discovery made by the police during investigation that persons not named in FIR No. 135 are the real culprits. To quash the said proceeding merely on the ground that final report had been laid in FIR No. 135 is, to say the least, too technical. The ultimate object of every investigation is to find out whether the offences alleged have been committed and, if so who have committed it.

12. Even otherwise the investigating agency is not precluded from further investigation in respect of an offence in spite of forwarding a report under sub-section (2) of Section 173 on a previous occasion. This is clear from Section 173 (8) of the Code.”

 5. Mentioning of a wrong Section or non-mentioning of provisions of law is immaterial. What is material is the cumulative effect of the allegations made in the complaint or the FIR?

1. i) In case Des Raj Taneja v/s State of Punjab 2000 Cri.L.J. 3393

Brief Facts of the Case

FIR No. 211 dated 7-10-99 was registered for the offences under S. 6A/9B of the Explosives Act and Section 286, I.P.C. at police station Abohar. The accusation against the petitioners was that the accused kept articles of fireworks in large quantity without licence.

Relevant Provisions of the Explosives Act

Under Section 4(1) of the Act, explosives include the fireworks also. Section 5 authorizes the Central Government to make rules regulating and prohibiting the manufacture and possession of explosives except under and in accordance with the conditions of the licence granted. Section 6 also empowers the Central Government to frame rules prohibiting the possession of explosives. Section 9B of the Act makes any contravention of the rules made under S. 5 or of the conditions of licence granted, punishable.

Plea of the accused

According to the petitioner the allegations in the FIR do not constitute the offence under Section 6A/9B of the Explosives Act and also under Section 286, I.P.C.

Question of Law

Whether FIR can be quashed merely on the ground that a wrong Section has been mentioned in it?

Findings of the Hon’ble Punjab & Haryana High Court

While answering the above said question in the negative, the Hon’ble High Court observed as under:-

Para “1. …. Simply because in the FIR Section 6A which is not attracted has been mentioned it cannot be said that the averments in the FIR do not disclose any commission of offence. It is for the investigating agency to find out whether the averments made in the FIR are correct and whether there is any contravention of the rules or the conditions of the licence. It is also a matter of investigation whether any offence under Section 286, I.P.C., has been made out. At this stage it cannot be said that no offence has been disclosed in the FIR. Mentioning of a wrong section is no ground for quashing the FIR. One has to look into the contents and the averments of the FIR to find out whether the averments made therein constitute any offence under any provisions of the Explosive Act or under any other law. In this view of the matter I do not find any grounds to quash the same.”

 1. ii) In case Mallesham v/s State of A.P. 1999 Cri.L.J.324

Brief Facts of the case

The deceased, K. Tirupathi was working as an Attendant in Sahiti Junior College, Parkal. The deceased committed theft of a cheque for Rs. 10,000-00 and presented the same in State Bank of Hyderabad and withdrew the amount. On 19-6-1998 the matter came to the notice of the management and an inquiry was held. The management obtained the specimen signature and handwriting for the purposes of comparison with the writing found on the cheque. On comparison, it was found that the deceased had committed theft of the cheque for Rs. 10,000/-. Therefore, the management asked the deceased to pay the said amount in instalments. The deceased did not agree with the proposal and the management gave a report to the Police. The deceased, having come to know about reporting of the matter to the Police committed suicide by consuming pesticide on the morning of 26-6-1998. On 27-6-1998, father of the deceased, Kashamalla Yellaiah lodged a complaint against the accused and three others alleging that the accused made false allegations against the deceased and in that process harassed him mentally. On account of such unbearable harassment, his son committed suicide by consuming pesticide by writing reasons on the blackboard of the College and also leaving a death note addressed to the Press Reporters. His son was admitted into a private hospital and during the course of treatment he died. The complainant accordingly prayed for taking appropriate action against the accused, which were responsible for mental harassment of his son and drove him to commit suicide. The S.I. of Police, Parkal, accordingly registered the case under Section 306, IPC and S. 3(i) (x) of the Prevention of Atrocities Act.

The accused filed an application U/s 438 Cr.P.C. for the grant of anticipatory bail.

For offences punishable under Prevention of Atrocities Act, anticipatory bail is not permissible.

Plea of the accused

Plea of the accused was that no specific allegation of atrocity was mentioned in the FIR. Mere mentioning the provision of law U/s 3 (i) (x) of the Prevention of Atrocities Act would not be enough to exclude the application under Section 438 of Cr.P.C.

Question of Law

Whether mere mentioning of the provisions of Prevention of Atrocities Act in the FIR would exclude the operation of S. 438 of the Code?

Findings of the Hon’ble Andhra Pradesh High Court

The Hon’ble Andhra Pradesh High Court held that mere mentioning or non-mentioning the provisions of law in the FIR/complaint is of no consequence. The crucial question is whether the cumulative effect of the contents of the FIR/complaint attracts the commission of an offence enumerated in the Prevention of Atrocities Act.

While holding so the Hon’ble High Court held as under:-

Para “15. But the Court’s jurisdiction to issue appropriate directions in exercise of its jurisdiction under Section 438 of the Code would in no way be excluded by mere mentioning the provisions of the Prevention of Atrocities Act in the FIR or in the complaint, as the case may be. The Court’s jurisdiction in no way could be affected by what the Station House Officer does at the time of registration of the crime. The crucial question would be as to whether the contents of the complaint or the FIR would attract the provisions of the Prevention of Atrocities Act. Mere mention or non-mention of the provisions of the Prevention of Atrocities Act is of no consequence. In a given case, the contents of the allegations may attract the provisions of the Prevention of Atrocities Act, though there is no such mention of the provisions at the time of registration of the crime. Likewise, the allegations in the FIR or the complaint may not attract the provisions of the Prevention of Atrocities Act, at all, though a mention is made in the FIR of those provisions. What is required is a pragmatic assessment of the contents of the complaint in every given case. Even if there is a single averment attracting the provisions of the Prevention of Atrocities Act, it would be enough to exclude the operation of S. 438 of the Code. What is important is to have an assessment of the cumulative effect of the allegations made in the complaint or the FIR, as the case may be.”

Finding on Facts

After examining the contents of the complaint and other material on record, the Hon’ble High Court came to the conclusion that no offence under the Prevention of Atrocities Act is made out. And that the application for grant of Anticipatory Bail is therefore, maintainable.

While holding so, the Hon’ble High Court observed as under:-

“16. A plain reading of the complaint and the letter written by the deceased, in the instant case, in my considered opinion, do not reveal any accusation of the petitioners having committed the offences punishable under the provisions of the Prevention of Atrocities Act. Mere fact that the de facto complainant and the deceased belong to Scheduled Caste, itself, may not attract the provisions of the Prevention of Atrocities Act, more so, particularly, in a case of harassment of this nature. Under those circumstances, the application of Section 438 of the Code is not excluded and the Court’s jurisdiction to issue direction thereunder in no way could be restricted. …..”

 6.(i) An FIR cannot be quashed on the following grounds:-

1. a) Provision of Arbitration in agreement

In case Trisuns Chemical Industry v/s Rajesh Aggarwal & others, 1999 Cri.L.J.4325 (1)

Brief Facts of the case

In the month of October 1996 the accused Directors approached the complainant and

offered to supply 5450 metric tones of “Toasted Soyabean Extractions” for a price of

nearly four and a half crores of rupees. The rate quoted by the accused was higher than

the market price. The complainant had to pay the price in advance as demanded by the

accused. Same was paid through cheques. Accused sent the commodity which was of

inferior and sub-standard quality. Complainant produced Xerox copies of the reports

obtained from the laboratory to which samples of the commodities were sent for testing

purposes. The said laboratory remarked that the commodity was of “the most inferior

and sub-standard quality.” The complainant suffered a loss of 17 lakhs of rupees by the

one consignment alone. According to the complainant, he was induced to pay the price

on the representation that the best quality commodity would be supplied and the price

was paid on such representation. But by supplying the inferior quality the accused

deceived the complainant and thereby committed the offence.

The accused filed petition U/s 482 Cr.P.C. for quashing the proceedings.

Findings of the High Court

The Hon’ble High Court quashed the proceedings on the ground that there was a specific

clause in the Memorandum of Understanding arrived between the parties that in case

of dispute arising between the parties in respect of any transaction, it will be resolved

through arbitration.

Feeling aggrieved, complainant filed an appeal in the Hon’ble Supreme Court.

Proceedings before the Hon’ble Supreme Court

Plea of the appellant/complainant

One contention of the complainant was that in commercial/money transactions, the

element of cheating is not completely eluded. Many cheatings are committed in the

course of commercial/money transactions also. The provision for referring the dispute

to arbitration in an agreement cannot be a substitute for a criminal prosecution.

Question of Law

Whether when there are allegations of cheating and fraud, arbitration clause mentioned

in the agreement for referring the disputes to arbitration, bars criminal proceedings?

Findings of the Hon’ble Supreme Court

The Hon’ble Supreme Court held that arbitration is a remedy for affording reliefs to

the party affected by breach of the agreement. But it cannot be a substitute for criminal

prosecution when the offences of cheating and fraud are alleged.

While holding so the Hon’ble Supreme Court observed as under:-

Para “7. We are unable to appreciate the reasoning that the provision

incorporated in the agreement for referring the disputes to arbitration is an

effective substitute for a criminal prosecution when the disputed act is an offence.

Arbitration is a remedy for affording reliefs to the party affected by breach of the

agreement but the arbitrator cannot conduct a trial of any act which amounted

to an offence albeit the same act may be connected with the discharge of any

function under the agreement. Hence, those are not good reasons for the High

Court to axe down the complaint at the threshold itself. The investigating agency

should have had the freedom to go into the whole gamut of the allegations and to

reach a conclusion of its own. Pre-emption of such investigation would be justified

only in very extreme cases as indicated in State of Haryana v. Bhajaj Lal (1992 AIR

SCW 237 : AIR 1992 SC 604 : 1992 Cri LJ 527) (supra).”

 

1. b) On the ground of falsity of facts mentioned in the FIR

Or

1. c) On the plea of counterblast of complaint lodged by petitioner against the

complainant of the new FIR.

In case Chittappa & others v/s The State, 2001 Cri.L.J.3555

Brief Facts of the Case

One Rathnamma and Bhagymma along with others assaulted the petitioner on the ground

that he had informed to the press people about the incident of rape alleged to have been

committed by one Manjunatha. The said incident took place on17-10-2000 at 9.00

a.m. in Magadi village. The police registered the case in Crime No. 163/2000 for the

offences punishable under sections 143, 147, 148, 504, 114, 323, 324, 353, 355 and

506 read with Section 149 of IPC. The investigation was still pending.

On the same day at 2.30 p.m., on the complaint of Rathnamma, a case was registered

in Crime No. 172/2000 against the petitioners alleging that they have indulged in acts

of assault against Rathnamma and Bhagyamma and committed offences punishable

under Sections 323, 324,352, and 355 read with Section 149, IPC. The contents of FIR

relating to Crime No. 172/2000 were that on 17-10-2000 at 2.40 p.m. Rathnamma and

her daughter Bhagyamma were standing at N.M.C. Hotel. The petitioners/accused

formed themselves into an unlawful assembly, came and assaulted Bhagyamma and

Rathnamma. At the intervention of the persons named in the FIR, they were saved.

The petitioner/accused filed a petition U/s 482 Cr.P.C. for quashing the FIR No.172/

2000.

Proceedings before the Hon’ble Karnataka High Court

Plea of the petitioner/accused

The contention of the petitioners was that the lodging of FIR in Crime No. 172/2000

actuated with malice and as a counterblast to the complaint lodged by the first petitioner.

A false case was set up against them. It was further contended that the entire version set

out in the complaint of Rathnamma is false and liable to be quashed.

Question of Law

Whether varcity of the contents in the subsequent FIR can be disbelieved only on the

basis that an FIR, earlier to the FIR in question, was registered against the complainant

party?

Findings of the Hon’ble High Court

The Hon’ble High Court held that till the conclusion of investigation, an FIR cannot be

quashed on the ground of falsity of facts.

While holding so the Hon’ble High Court observed as under:-

Para “3. After hearing the counsel for the petitioners and the learned S.P.P. for some

time, I feel the petition lacks merit and no relief can be granted. There is nothing

illegal on the part of the police registering the FIR when a commission of cognizable

offence is reported. The mere fact that earlier to the FIR in question, a FIR was

lodged by the first petitioner cannot be a sole basis to disbelieve the varacity of the

contents in Crime No. 172/2000. The cases have now been registered and the police

have taken up investigation and it is only in the process of investigation, the truth

would be revealed. It is not proper and possible to appreciate the correctness or

otherwise of the contentions raised by the petitioner at this stage, which is very

premature. Whatever, the contentions, raised are purely factual in nature. Unless

the investigation is complete and police file the final report, it cannot be said at this

stage whether the averments in the FIR of Crime No. 172/2000 is false or otherwise.

Therefore, under the circumstances, the petition is dismissed.”

 

7. Evidentiary Value of FIR

(a) Contradictions between FIR, Dying Declaration, and statement of witnesses

In case Sohan Lal @ Sohan Singh v/s State of Punjab, 2003 Cri.L.J. 4569

Brief Facts of the case

It was a case of murder. The FIR was lodged on the basis of the statement of Bansi

Ram. The circumstances under which the deceased died were narrated on five different

occasions. First, there was the version in the FIR lodged by said Bansi Ram, second

was the version given in the deposition of Bansi Ram. Third was the Dying Declaration;

fourth was the version in the statement of deceased Kamlesh Rani recorded U/s 161

Cr.P.C. Fifth was the version given in the deposition of another witness Jit Singh.

The Plea of the accused was that each one of the versions is inconsistent with the

others; therefore, it would be unsafe to rely on such versions.

Findings of the Hon’ble Supreme Court

The Hon’ble Supreme Court held that such contradictions would not affect the version

recorded in the Dying Declaration.

While holding so the Hon’ble Supreme Court observed as under:-

Para “22. It is true that both in the FIR as well as in the deposition of Bansi Ram

(PW-2) an exaggerated version had been given. Merely, because Bansi Ram takes

it upon himself to give an exaggerated and coloured version of the circumstances

under which Kamlesh Rani died, we do not think that it would be proper to

reject the dying declaration (Ex. PN) which we have tested on the anvil of the law

laid down by the Constitution Bench of this Court in Laxman (supra) and found it to

have passed. We are, therefore, not inclined to accept the contention that the dying

declaration (Ex. PN) needs to be rejected because of the FIR of Bansi Ram and the

deposition of Bansi Ram do not tally with it.”

(b) Improvements between the statements recorded u/s 161 Cr.P.C. and

deposition given in the Court.

– Informant giving more details in evidence than given in the FIR-Such

improvement cannot be doubted

In case Om Parkash @ Raja v/s State of Utranchal 2003 Cri.L.J.483

Brief Facts of the case

One of the victims, a retired Brigadier working with ONGC at Dehradun, was living in

his house with his wife Rama Khanna, the informant, and his son Sarit Khanna who

had returned from U.K. after completing his studies two weeks earlier. The sister of the

informant by name Bishna Mathur was also staying in the house at the relevant time.

The accused was engaged as servant at their house about six months earlier.

The accused was residing in the servant’s quarter. There were instances in which

the accused proved to be unreliable. He had stolen money from the purse of her husband

once when she and her husband went to outstation. He killed her pet sparrow and also

put feathers inside the nose of her hen. She and her husband discussed about the conduct

and mentality of the accused and decided to dispense with his service from 1st December,

1994.

To this effect her husband informed the accused. On 14-11-1994, the accused

served bed tea at about 8 a.m. to her, her husband and her sister. At that time her son

was sleeping in the bed room. After the bed tea, her husband left the house for a morning

walk as usual. Rama Khanna and her sister went into the bath rooms adjacent to each

other. When Rama Khanna wanted to come out of the bath room she found it was

bolted from outside. From the window of the bath room, she communicated to her

sister to open the bolt. As her sister just came out of the bath room, Rama Khanna heard

her cries for about five minutes and then there was pin drop silence. At this Rama

Khanna became suspicious that some untoward incident had happened. Then, accused

himself opened the bath room door in which Rama Khanna was confined; but, before

fully opening the door and confronting the accused, she noticed that the accused was

holding chilly powder in one hand and sword in another. The sword happened to be of

her husband. As soon as the door was opened, the accused threw chilly powder on her

and attacked with the sword. The sword luckily hit the golden bangle which she was

wearing as a result of which her left wrist was fractured and in this process, the bangle

got dented. She managed to get into the bath room and bolted the door from inside. The

accused kept banging the bath room door. At that juncture, her husband returned from

morning walk and on hearing her panicky voice from the bathroom, he came straight to

the bed room to which the bathroom was attached. She pleaded with her husband to

open the door as the accused Raja (alias name of accused) was upto some mischief.

Her husband replied that Raja was not there, but immediately thereafter, she heard the

cries of her husband as the accused started attacking him with sword after throwing

chilly powder on his face. She heard her husband remarking Raja “why are you

doing this? We have not harmed you.” After sometime, the cries of her husband

subsided. Thereafter, the accused tried to injure her with the help of a danda from the

window of the bathroom. In the meanwhile, her husband gathered strength to open the

bathrdoom door from outside. Then Rama Khanna ran towards the main gate of the

house and closed it from inside to prevent re-entry of the accused inside the house as he

was standing outside at that time. At this, the accused started banging the main door

repeatedly and thereafter left the spot.

When she came inside the bed room, she found that her husband was lying injured

with profuse bleeding and heavy breathing. She noticed the injuries on his neck and

chilly powder smeared on his face. Then she rushed to the bed room of her son and

found that he was lying dead in a pool of blood with his neck severed from his body. A

stone slab was found on his legs. On entry into the room of her sister Rama Khanna

found that chilly powder was spilled all over the room and her sister was dead with

severe injuries on her face and neck. On opening the drawing room window, she found

Jamadar Raju (P.W. 4) approaching the house. She cried out and asked him to open the

main gate and told him that the accused had murdered the inmates of the house. Then

the neighbours gathered and took her and her injured husband to ONGC hospital.

Husband was declared dead at the hospital.

Rama Khanna was given first aid and then she was dropped back at the house.

P.W. 8 who was known to the family of Rama Khanna was in the crowd and he scribed

the complaint as per her dictation. She handed over the report at Vasant Vihar Police

post at about 10.30 a.m. The police then inspected the place of occurrence, took

photographs and sent the dead body for post-mortem. Again, Rama Khanna was taken

to ONGC hospital and X-ray of her wrist was taken and she was treated for her fracture.

On the basis of the complaint of Rama Khanna, FIR was registered. Accused was

arrested. After completion of investigation the charge-sheet was filed.

Findings of the Trial Court and of the High Court

The Trial Court convicted the accused for the offence of murder and awarded death

punishment was imposed. The High Court dismissed the appeal preferred by the accused

and confirmed the death sentence.

Feeling aggrieved, the accused filed an appeal in Hon’ble Supreme Court.

Proceedings before the Hon’ble Supreme Court

Plea of the accused

One contention of the accused was that PW1 Rama Khanna made major improvements

in her deposition in the Court over her earlier version mentioned in the FIR. It was

pointed out that the alleged cries of her husband – “Raja, why are you doing this!” did

not find mention in the FIR. Nor was it mentioned in the FIR that the accused replied to

PW-1 saying “you have lodged complaint against me”. These remarks attributed to the

husband of PW-1 and the accused cannot be true, because they were not mentioned in

the FIR.

Question of Law

Whether improvements made by a witnessin his deposition in Court over his earlier

version mentioned in FIR, make the whole version doubtful?

Findings of the Hon’ble Supreme Court

While answering this question in the affirmative, the Hon’ble Supreme Court observed

as under:-

Para “11. We find it difficult to accept this contention. It is axiomatic that the FIR

need not contain an exhaustive account of the incident. It is to be noted that the

report was given to the police within one and a half hours after the incident. PW 8, a

known person, had drafted the report that she dictated. She had given all essential

and relevant details of the incident naming the accused as culprit. We cannot expect

a person injured and overtaken by grief to give better particulars. The possibility

of PW-1 inventing a story at that juncture trying to implicate the accused is absolutely

ruled out. The contents of the FIR, broadly and in material particulars, conform to

the version given by PW-1 in her deposition.”

 

Cases Referred:-

1. Superintendent of Police, CBI v/s Tapan Kr. Singh, 2003 Cri.L.J. 2322(1)
2. S.M. Dutta v/s State of Gujarat, 2001 Cri.L.J.4195
3. Rajesh Bajaj v/s State NCT of Delhi 1999 Cri.L.J.1833,
4. S.G. Gundegowda @ Moganna v/s State, 1996 Cri.L.J.852
5. Sunil Kumar and others v/s State of M.P., 1997 Cri.L.J. 1183
6. Thaman Kumar v/s State of Union Territory of Chandigah 2003 Cri.L.J.

3070(1)

7. Sadre Alam Mulic v/s State, 1997 Cri.L.J.2441
8. Kari Chaudhary v/s Most. Sita Devi & others 2002 Cri.L.J. 923,
9. Des Raj Taneja v/s State of Punjab 2000 Cri.L.J.3393.
10. K. Mallesham v/s State of A.P. 1999 Cri.L.J. 324
11. Om Parkash @ Raja v/s State of Utranchal 2003 Cri.L.J.483
12. Sohan Lal @ Sohan Singh v/s State of Punjab, 2003 Cri.L.J. 4569
13. Trisuns Chemical Industry v/s Rajesh Aggarwal & others, 1999

Cri.L.J.4325(1)

14. Chittappa & others v/s The State, 2001 Cri.L.J.3555.

First Information