R.K. Anand v. UOI

Section 164 is brought

Absence of the original microchip can prove inconclusive only if the identity of the people is in question. In the case of R. K. Anand he never questioned the video in terms of the fact that he was not there in the video.

I.U. Khan on the other hand denies the fact that “bada sahib” is R. K. Anand. However, the court felt that the conduct f I.U.Khan was highly wrong as he was meeting the witness like that and was directing him to a “bada sahib”, irrespective of who it was. Thus, the court found him guilty. In addition to that the original microchip against IU Khan was present. This made the case stronger.

The sting operation, the court held, in itself was not wrong because it was in the interest public. The court rejected the argument that the sting operation is obstruction of justice or was a media trial in any manner. It only intended to expose a crime and did not intend to instigate one.

The court assesses the case in totality.

PHYSICAL EVIDENCE

Section 53– Examination of accused by medical practitioner at the request of police officer.

• Who can carry out examination: medical practitioner as defined under Section 2(h) of the Indian Medical Council Act, 1956 and whose name has been entered in a State Medical Register.

There are two laboratories which work 1) National Laboratories 2) State Laboratories.

• The examination is conducted of the person who is accused or arrested. This is done on a reasonable belief that there is a need for this to be carried out
• The medical examiner shall conduct this at the request of the police and not the magistrate. The police should not be below the rank of a sub-inspector
• The tests which are conducted should be necessary for the particular.
• These tests may be compelled.. “reasonably necessary.”
• The definition of what can be examined is included. For example, dental records are not included but these tests are included.

M. Prakash v. State of Karnataka –deals with self-incrimination through compulsive medical tests.

DNA tests

DNA tests are very expensive, but it is less fungible. DNA kryptonite is in the chain of custody. The DNA evidence flow must be shown to be transparent and it must be shown that there has been no change of hands. Because it can be contaminated easily.

Also, there are issues of Right to Privacy which come about. This came up in the case of R.  v. C.C.S. York says that there is

Priya Dharshini case.

INTERROGATION

167 – gives the police the power to interrogate

• Third degree interrogation: physical pain, but will include psychological duress. This is accusatory and leading questions will be posed. It is illegal.
  • Good Cop and Bad Cop
  • Light on the eyes and high pitched questions is the most common technique.
• The police may detain person for more than 24 hours if it has to complete the investigation. The magistrate may order a further investigation of 15day max. A competent magistrate may also order the detention for a period of 90days, or 60days. After these days a bail needs to be given.
• Torture is that which is causing mental or physical harm which is direct and not incidental in nature. This is defined under Article 1 f the Torture Convention.
• The ticking time bomb scenario gives justification to the time bomb.
• However, the evidence got out of the torture can be used under Section 27 if it can be corroborated by evidence.
• Selvi vs. State of Karnataka– Held that no individual should be forcibly subjected to any of the techniques in question, whether in the context of investigation in criminal cases or otherwise. Doing so would amount to an unwarranted intrusion into personal liberty. However, we do leave room for the voluntary administration of the impugned techniques in the context of criminal justice, provided that certain safeguards are in place. Even when the subject has given consent to undergo any of these tests, the test results by themselves cannot be admitted as evidence because the subject does not exercise conscious control over the responses during the administration of the test. However, any information or material that is subsequently discovered with the help of voluntary administered test results can be admitted, in accordance with Section 27 of the Evidence Act, 1872.

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Search – There has to be a nexus for a search, it cannot be random.

Seizure-

Section 165– Search by police officer : Here the Investigating officer/ or the OC is conducting search when they have reasonable grounds for believing that anything necessary for the purposes of an investigation into any offence which he is authorised to investigate may be found in any place within the limits of the police station of which he is in charge.

Elements of Section 165:

• When can he search? … Reasonable Grounds for believing – Section 93(1) gives the grounds under which the search warrant may be issued. The same standard of reasonable doubt exists.

Reason suspect is not equal to Reason to believe. Reason to suspect is a better ground.

• What can be found? … Necessary for the purpose of investigation
• Offense authorised to investigate – there are various levels of police officers who have responsibility. The job can be delegated but a junior officer cannot do the job at will. This is also given in Section 165(3)
• Limits of Police Station
• The search can become illegal if the search is not recorded in the Diary.

Procedure for Search: The police officer would come and get two ppl from the locality called the ‘Panchas’. The evidence of these ‘panchas’ are imp. if something is ceased. There is a document which they sign validating the search and its procedure. This is important otherwise the happening of the search cannot be substantiated.

A search memo needs to be made and submitted to the Magistrate. The Magistrate sends the memo to the owner/ the occupier of the place. This owner and occupier may not be the accused. Therefore, the accused may, at times, not get the memo at all, until the trial.

Section 47 – Search of place entered by person sought to be arrested: This gives duty to the person who or whose premises need to be searched by the person holding the warrant. If the police is not allowed in, they are allowed to break open the door. There is also an allowance for a ‘no-knock break-in’ to take place; this is to take the person by surprise.

A search memo needs to be made and submitted to the Magistrate. The Magistrate sends the memo to the owner/ the occupier of the place. This owner and occupier may not be the accused.. Therefore, the accused may, at times, not get the memo at all, until the trial.

Section 166 – When officer in charge of police station may require another to issue search warrant: A person of another limit may be requested to conduct any search, by the officer who is already conducting a search under Section 165. This has to be in accordance to Section 165. This other police officer must prepare a report and submit it to the original OC, after the search happens.

However, if an immediate search needs to be conducted in another jurisdiction, the officers may do so, but they would need to send a notice and the list of the search to the police station and to the nearest Magistrate.

Section 100 – Persons in charge of closed place to allow search

A police carrying a warrant should be allowed to conduct a search. If he is not allowed to conduct the search, then force may be used. The force used should however, be reasonable. The search is not only of premises but also of person. If it is a female, a female officer must search, with decency. The search should be made before two respectable people from the locality. If there are no people from the locality, then people from outside the locality may also be taken. These are the ‘Panchas’. The panchas need to sign the search document. These people need not necessarily be called as witnesses, infact they can’t be called as witnesses.

Section 187 of the IPC states there should be no omission to assist public servant when bound by law to give assistance.

Section 91 – Summons to produce document or other thing

Elements:

• Who can issue the summons? Court or Officer in Charge of Police Station
• What can they summon? Document or any other thing
• Why would they summon it? Necessary or desirable
• Who would they summon it from? Whoever the police believes is in possession of the document or is in possession of the object
• Where would the person produce it? The person may attend and produce it, or to produce it, at the time and place stated in the summons or order. The person may also ask someone else to produce it on his behalf.
• Which documents cannot be summoned? Things under Bankers book, things under Section 123 and 124 of the Evidence Act (‘Evidence as to affairs of state’ and ‘Official communications’ resp.)

Section 92- Produce as to letters and telegrams

District Magistrate, Chief Judicial Magistrate, Court of Sessions or High Court are the only ones who can ask for the letters and telegrams to be produced. Other Judicial officers may as well however, ask for the stopping of such letters and telegrams, but such letters and telegrams would not be delivered to the officers.

Section 349 – Imprisonment or Committal of person refusing to answer or produce document

Section 345 – Procedure in some cases for contempt

Section 346 – Procedure where Court considers that case should not be dealt with under Section 345. – This becomes a case of perjury.

A person producing a document does not become a witness. Section 139 of the Indian Evidence Act it says that the person producing a document cannot be cross examined unless he is specifically called a witness.

SEIZURE

Section 101

Section 102

Impounding – this is pertaining to documents.

Section 7A

Section 165

Constitutional Implications of Search and Seizure

There is no express constitutional bar to search and

Section 460– Irregularities, which do not vitiate proceedings

Amendment 4 and 5 of the US constitution

EXCLUSIONARY RULE

Exclusionary rule of evidence – this states that things which are found out of an illegal search or seizure are not admissible: Silverthrone Lumber Co. v. USA. The exceptions are that

• they are discovered in spite of the tainted source, i.e., if whatever was found was stated by a witness who had no connection to the search.

In India however the ERoE is not generic in nature. One needs to show that the search was unfair in nature.

• There is no exclusionary rule in India because under the India Evidence Act this is not there – Puranmal Case
• State of Punjab v. Baldev Singh
• State v. Natwarlal

M.P. Sharma case

State of Gujarath v. Shyamlal AIR 1965 SC 1251

Wire tap – Tapping of the phone. The power to do this the power is given by Section5(2) of the Indian Telegraph Act

UCL v. Union of India

Pooran Mal v. Dy. Of Inspections

Facts: A search warrant is issued under the Income Tax Act against the petitioners. The petitioners claim that this is illegal and the evidence cant be admissible. Furthermore, they ask for the exclusion of that part of the evidence which is acquired from the property which was not mentioned for in the search warrant.

Decision: The court hold that any statute can call for search and seizure to be conducted, as long as it broadly follows the principles as laid down in the CrPC. It also said that the findings of a search and seizure cant be held to be inadmissible merely on the ground of the illegality of the search and seizure. Also, it held that if there are some materials acquired during the search which are useless, this doesn’t mean the entire evidence is inadmissible. There are no constitutional prinicples or fundamental rights interpretation which gives for exclusion of evidence.

 

State of Punjab v. Balbir Singh

Issue: Whether any arrest and search of a person or search of a place without conforming to the provisions of the Narcotic Drugs and Psychotropic Substances Act, 1985 (‘NDPS Act’ for short), becomes illegal and consequently vitiates the conviction.

Held: If a police officer, even if he happens to be an “empowered” officer while effecting an arrest or search during normal investigation into offences purely under the provisions of CrPC fails to strictly comply with the provisions ‘of Sections 100 and 165 CrPC including the requirement to record reasons, such failure would only amount to an irregularity.

Neither Section 41(2) nor Section 42(1) mandates such empowered officer to record the grounds of his belief. It is only proviso to Section 42(1) read with Section 42(2) which makes it obligatory to record grounds for his belief. To that extent we have already held the provisions being mandatory. A fortiori, the empowered officer though is expected to record reasons of belief as required under Section 165, failure to do so cannot vitiate the trial particularly when Section 41 or 42 do not mandate to record reasons while making a search. Section 165 in the context has to be read along with Sections 41(2) and 42(1) where under he is not required to record his reasons. The general principles laid down regarding the irregularities committed in such searches, equally apply even to cases where the grounds of belief as required under Section 165 are not recorded.

The provisions of CrPC namely Sections 100 and 165 would be applicable to such arrest and search.

Under Section 41(1) only an empowered Magistrate can issue warrant for the arrest or for the search in respect of offences punishable under Chapter IV of the Act etc. when he has reason to believe that such offences have been committed or such substances are kept or concealed in any building, conveyance or place. When such warrant for arrest or for search is issued by a Magistrate who is not empowered, then such search or arrest if carried out would be illegal. Likewise only empowered officers or duly authorized officers as enumerated in Sections 41(2) and 42(1) can act under the provisions of the NDPS Act. If such arrest or search is made under the provisions of the NDPS Act by anyone other than such officers, the same would be illegal.

State of Punjab v Baldev Singh

Facts:

The petitions are regarding the exact scope and effect of sec 50 the Narcotic Drugs and – Psychotropic Substances Act, 1985. Section 50 states that, the designated officer, prior to the search, must inform the person to be searched about his right to be searched in front of a gazetted officer or magistrate. The question arises is this mandatory?

Decision:

The court when discussing the nature and scope of the protection mentions that this is a protection offered by the legislature to a person being accused of such an act and one who is to be subject to the search. The purpose of this section is two-fold, it protects the person from fallacious charges and false claims and it ensures that there is a force of authority granted to the prosecution as well. This fulfills both purposes.

The court holds that this is obligatory on the officer in the case. Lack of such notice may not vitiate the trial process itself, but any conviction made solely on the basis of such evidence is unsustainable.

Also, any evidence adduced from such a search cannot be used as a presumption for a future search as, the grounds under 54 state that it must be in compliance with sec 50.

The provisions for search and seizure are in compliance with those of the CrPC, in sec 100 and 165 and the court relies on the decision of the court in state of Punjab v. Balbir Singh.

State of Maharashtra v. Natwarlal Damodardas Soni (SC – 1979)

Facts: The Anti-Corruption Bureau of the Police raided the house of the respondent and recovered gold biscuits with foreign markings stitched in a jacket lying in a steel trunk underneath some clothes. At the time of the raid, the respondent was not in the house but his wife and mother were present. At about the same time the Customs Authorities also raided his house and took proceedings under the Customs Act, 1962 in respect of the smuggled gold found in the house. The respondent, who remained absconding, surrendered to the police a week thereafter.

At the trial the respondent contended that the gold was brought into his house by someone and left there in his absence and that, therefore, he had no connection with the gold.

On appeal to this court it was contended on behalf of the respondent that (i) the search of his house and the seizure of gold by the police was illegal; (ii) that section 123 of the Customs Act was not applicable because the seizure was made not by the Customs Authorities but by the police under the Code- of Criminal Procedure and therefore the burden of proving the offence lay on the Police which it did not discharge.

Issue: Whether an illegal search will vitiate the trial? – relevant Sections of CrPC are 103, 105 and 165.

Analysis: Taking the first contention first, the court observed that the police had powers under the Code of Criminal Procedure to search and seize this gold if they had reason to believe that a cognizable offence was being committed. Even if the search was illegal (assuming), then also, it will not affect the validity of the seizure and further investigation by the Customs Authorities or the validity of the trial which followed on the complaint of the Assistant Collector of Customs.

Two case-law were cited: In Radhakrishan v. State of U.P. – “So far as the alleged illegality of the search is concern ed, it is sufficient to say that even assuming that the search was illegal the seizure of the articles is not vitiated. It may be that where the provisions of ss. 103 and 165, Code of Criminal Procedure, are contravened the search could be resisted by the person whose premises are sought to be searched. It may also be that because of the illegality of the search the Court may be inclined to examine carefully the evidence regarding the seizure. But beyond these two consequences no further consequence ensues.”

In Shyam Lal Sharma & Anr. v. The State of Madhya Pradesh: “even if the search is illegal being in contravention with the requirements of Section 165, Criminal Procedure Code, 1898, that provision ceases to have any application to the subsequent steps in the investigation.”

V. S. Kuttan Pillai

This is given under Statements to Police – Self Incrimination

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According to the case of Maneka Gandhi v. Union of India (1978), laws can be struck down as unconstitutional on grounds of reasonability, as per Articles 21 and 19. This is the incorporation of due process in Indian law, where the Supreme Court can strike down laws plainly on the basis of how reasonable it is and how well it upholds the principles of fairness, equity and justice even if there is no explicit violation of fundamental rights of lack of competency.

Therefore, the CrPC has to conform to the fundamentals of due process or the SC can strike the relevant sections down as unconstitutional if they are inhumane or contrary to principles of natural justice.

• DUE PROCESS

Due Process – Fair process

Developed by Magna Carta and used by the American Constitution. In India it came in because of the 1975 Emergency. The Maneka Gandhi case brought about the idea of due process of law.

Article 21 talks about due process of the law.

Expressio unius est exclusio alterius – the US constitution gives everything else to the people and the state. The Indian Constitution includes it by interpreting it under A. 14 19 and 21.

Article 14, 19, 21 forms the due process. Only Royappa case read them together. Only later did they start reading them together.

Article 21 – No person shall be deprived of his life or personal liberty except according to procedure established by law.

1. Substantive due process
2. Procedural due process

• FAIR TRAIL

Zahira Habibulla H Sheikh v. State of Gujarat – Given under Rights of the Court

• TREATED EQUALLY- ART. 14

Article 14 – The State shall not deny to any person equality before the law¹ or the equal protection of the laws² within the territory of India.

² Equal protection would mean that the state extends to the state the duty to protect.

• “EX-POST FACTO LAWS”

Article 20(1) – Cant be convicted retrospectively (only in criminal cases not for civil cases). Even then the defences of estoppels and

Article 20(2) – Right against double jeopardy

Section 300 of the CrPC

• The elements of the section:
  • Tried by court of competent jurisdiction
  • Convicted or acquitted
  • Same offence or “same facts” – Section 26 of the General Clauses Act, Section 258 of the CrPC. There are different kinds of judgements which may be pronounced. They are conviction there is an acquittal and there is discharged and there is quashing. For S. 300 there needs to be only either conviction or acquittal.

Maneka Gandhi v. Union of India

The Supreme Court in this case reiterated the proposition that the fundamental rights under the constitution of India are not mutually exclusive but are interrelated. According to Justice K. Iyer, ‘a fundamental right is not an island in itself’. The expression “personal liberty” in Article 21 was interpreted broadly to engulf a variety of rights within itself. The court further observed that the fundamental rights should be interpreted in such a manner so as to expand its reach and ambit rather than to concentrate its meaning and content by judicial construction. Article 21 provides that no person shall be deprived of his life or personal liberty except in accordance with procedure established by law but that does not mean that a mere semblance of procedure provided by law will satisfy the Article , the procedure should be just , fair and reasonable. The principles of natural justice are implicit in Article 21 and hence the statutory law must not condemn anyone unheard. A reasonable opportunity of defense or hearing should be given to the person before affecting him, and in the absence of which the law will be an arbitrary one.

One of the significant interpretation in this case is the discovery of inter connections between Article 14, 19 and 21. Thus a law which prescribes a procedure for depriving a person of “personal liberty” has to fulfill the requirements of Article 14 and 19 also. Moreover the ‘procedure established by law’ as required under Article 21 must satisfy the test of reasonableness in order to conform with Article 14.

Justice Krishna Iyer in this case observed that, “the spirit of man is at the root of Article 21”, “personal liberty makes for the worth of the human person”.

Sunil Batra v. Delhi Administration

While it is true that a person who is convicted is deprived of certain fundamental rights like the right to carry on business from jail, in certain aspects, yet, his rights under Arts. 21 and 14 are still enforceable. Limitations on his right to life and movement are subject to the procedure established by law. The question here is whether the procedure is reasonable and just.

The term under the sentence of death is applicable only to prisoners who have exhausted all sources of appeal, i.e., all appeals till the plea for presidential/governor’s clemency. Only once the plea for clemency which is the highest appeal available is exhausted then only can any prisoners fall under this term. Till then, they are not under the ambit of the term.

Sec 366(2) directs that once a decision for death sentence has been granted by a sessions court, the prisoner is remanded to jail custody under a warrant. Sec 73 & 74 of the IPC show that solitary confinement is a substantive punishment.

It was contended here that sec 30(2) amounts to double jeopardy as they are facing punishments under sec 366(2) as well as sec 73 & 74 of the IPC which is violative of Art. 20(2) of the Indian constitution. The court holds that, ‘But as the prisoner is not to be kept in solitary confinement and the custody in which he is kept under s. 30(2) would prelude detention in solitary confinement, there is no chance of imposing a second punishment upon him and, therefore, s. 30(2) is not violative of Art. 20.’

It further holds that there is no unreasonable restriction on his life or liberty as once the obnoxious element of sec 30(2) is read down, it is in tune with the procedure established by law. The court holds that the prisoner should not be deprived of his rights as available to other prisoners, like the right to eat with them, to enjoy certain time outside of his cell, etc. This is all subject to certain limitations with regard to safety. Thus, it’s not violative of Art. 21.

Also, when looking at Art. 14 it is hard to dispute that a person under the sentence of death is in a separate category as compared to other prisoners. This classification looking at the scenario, state of the prisoners mind and safety is reasonable. Thus, sec 30(2) is not violative of Art. 14.

Regarding sec 56:

It was also held that the prisoners have a right to counsel provided by prison authorities to them so they can find recourse about the treatment meted out to them in jail. Majority of the prisoners are illiterate and need the assistance of the court in this regard.

Held:

Sec 30(2) is expanded to include certain liberties but is not considered ultra vires.

Sec 56 is read down and restrictions are to be imposed on it to ensure that bar fetters are used only in the rarest circumstances.

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This is the right of a person to not be tried for the same offence twice. There are three provisions in Indian law that deal with this. It is based upon the common law principle of ‘nimo bis in idipsum’ which means that no man ought to be punished twice for the same offence.

Autrefois acquit – if a person is charged and subsequently acquitted of the offence, he cannot be put on trial for the same offence again (embodied in S.300, not Art.20(1))

Autrefois convict – if a person is prosecuted and punished for a particular offence, he cannot be put on trial for the same offence again. (embodied in both, Art.20(1) and S.300)

Article 20(2), Constitution of India

“No person shall be prosecuted and punished for the same offence more than once.”

A limitation read into Art. 20 (2) is that the former ‘prosecution'(which indicates that the proceedings are of a criminal nature) must be before a court of law, or a judicial tribunal required by law to decide matters in controversy judicially on evidence and on oath which it must be authorized by law to administer, and not before a tribunal which entertains a departmental or administrative enquiry, even though set up by a statute, but not required to proceed on legal evidence given on oath. It is thus established that action taken by a quasi-judicial body does not bar a latter prosecution before a court. Thus, immunity against a second prosecution has become confined to a situation when the first proceeding has been before a court of law. The same will be the position when after ‘prosecution and punishment’ for an offence, further action is taken by a quasi-judicial body.

It also only refers to autrefois convict as it limits the applicability of the plea to a person who has been prosecuted and punished previously.

Section 300, CrPC

“(1) A person who has once been tried by a court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offence, nor on the same facts for any other offence for which a different charge from the one made against him might have been made under sub-section (1) of section 221, or for which he might have been convicted under subsection (2) thereof.”

What does this mean?

• If a person is convicted or acquitted by a court of competent jurisdiction, he cannot be tried for the same offence.
• If charge has been made against a person under sub – section (1) of 221 and the facts are the same and he has been charged under sub -section (2) of Sec. 221 then he cannot be tried on the same facts. Of course this holds true only till the conviction or acquittal remains in force.
• “Tried” does not mean tried on merit. It just has to be an acquittal of the accused.
• The basic rule is that the offences should be same i.e. identical. It is therefore necessary to analyse and compare not the allegations in the two complaints but the ingredients of the two offences and see whether their identity is made out. 300 bars the trial for same offences and not different offences which may result from the commission or omission of the same set of acts. Where the legislature provides that on the same facts proceedings could be taken under two different sections and the penalties provided under those sections are also different, it is obviously intended to treat the two sections as distinct.

“(2) A person acquitted or convicted of any offence afterwards tried with the consent of ore State Government for any distinct offence for which a separate charges have been made against him at the former trial under sub-section (1) of section 220.”

What does this mean?

• Where a person has been acquitted or convicted of any offence and a separate charge for another offence could have been made but was not made against him in the former trial, he should not be liable to be again prosecuted for the other offence as a matter of course because this might lend itself to abuse.
• To provide a check against such abuse, 300 (2) makes it obligatory to obtain the consent of the State Government before a new prosecution is launched against any person for any distinct offence for which a separate charge might have been made against him at the formal trial under Sec. 220 (1).
• Where the charge on the second trial is for a distinct offence the trial is not barred i.e. the section permits a trial for a distinct offence.

“(3) A person convicted of any offence constituted by any act causing consequences which, together with such act, constituted a different offence from that of which he was convicted, may be afterwards tried for such last-mentioned offence, if the consequences had not happened or were not known to the court to have happened, at the time when he was convicted.”

What does this mean?

• This section is applicable only in cases of conviction and not in cases where there has been an acquittal.
• This section allows the re-trial of an accused for acts which did not come to light in front of the court of prior conviction.
• A conviction simply in itself does not bar re-trial of the accused for similar offences which were not bought to the notice of the courts. The facts or the circumstances must be such as to indicate a different kind of offence of which there could be no conviction at the first trial. The new evidence must constitute a different kind of offence for which the accused could not have been tried at the first trial. The new facts or consequences must have occurred since the conviction or acquittal at the first trial. For, if the new facts or consequences were known to the court at the time of the first trial, a second trial for the offence constituted by the new facts would be barred.

“(4) A person acquitted or convicted of any offence constituted by any acts may, notwithstanding such acquittal or conviction be subsequently charged with, and tried for, any other offence constituted by the same acts which he may have committed if the Court by which he was first tried was not competent to try the offence with which he is subsequently charged.”

What does this mean?

• If any court is incompetent to try an accused of any offence which is the consequence of an offence for which he has already been convicted or acquitted, the prior acquittal or conviction would not act as a bar to the proceedings for the consequential offence as the court could not have possibly tried the accused of that offence.

“(5) A person discharged under section 258 shall not be tried again for the same offence except with the consent of the court by which he was discharged or of any other court to which the first-mentioned court is subordinate.”

What does this mean?

• In a summons case instituted otherwise than upon a complaint the court has got power under 258 to stop the proceedings at any stage without pronouncing the judgment. If the stoppage of proceedings is made before the recording of the evidence of the principal witness, it shall have the effect of discharge of the accused person.
• However, according to 300 (5) such accused person cannot be tried again for the same offence without the consent of the concerned court. It is believed that this provision will be helpful as a safeguard against the abuse of power of fresh prosecution in such cases.

“(6) Nothing in this section shall affect the provisions of section 26 of the General Clauses Act, 1897 (10 of 1897) or of section 188 of this Code.”

What does this mean?

• When S.26 applies, S.300 is not required.
• For S.26 to operate, the offences have to have the same ingredients.
• More on S.26 in the next section.

“Explanation: The dismissal of a complaint, or the discharge of the accused, is not an acquittal for the purposes of this section.”

These pleas are taken as a bar to criminal trial on the ground that the accused person had been once already charged and tried for the same alleged offence and was either acquitted or convicted. Therefore, it encompasses the plea of autrefois acquit as well.

Section 26, General Clauses Act

 “Provision as to offences punishable under two or more enactments – Where an act or omission constitutes an offence under two or more enactments, then the offender shall be liable to be prosecuted and punished under either or any of those enactments, but shall not be liable to be punished twice for the same offence.”

Although, the above Sec. 26 refers to “acts and omissions constituting an offence under two or more enactments”, the emphasis is not on the facts alleged in the two complaints, but rather on the ingredients which constitute the two offences with which a person is charged. This is obvious from the concluding portion of the section which refers to “shall not be liable to be punished twice for the same offence”. If the offences are not the same but are distinct, the ban provided by Sec. 26 cannot be imposed.

Kolla Veera Raghava Rao v. Gorantla Venkateswara Rao

Issue:

Whether a person can be prosecuted under the same facts, but for a different offence under a different statute? (Difference between Article 20(2) of the Constitution of India, 1949 and Section 300(1) of the Indian Penal Code)

Decision: Prosecution barred as Art.20 (2), Constitution of India, 1949- . Protection in respect of conviction for offences (2) No person shall be prosecuted and punished for the same offence more than once.

Section 300(1), IPC- Person once convicted or acquitted not to be tried for same offence-

(1) A person who has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offence, nor on the same facts for any other offence for which a different charge from the one made against him might have been made under Sub-section (1) of Section 221 or for which he might have been convicted under Sub-section (2) thereof.

Difference between Article. 20 (2) and Sec 300 (1)

The Sec is wider in the sense that it says that no one can be tried and convicted for the same offence or a different offence ON THE SAME FACTS.

While Art 20(2) may leave a lingering doubt in our minds as to whether a person can be prosecuted for the same offence on different facts, the Sec makes it clear that as long as the facts are same, the person cannot be prosecuted at all.

Monica Bedi v. State of Andhra Pradesh

Facts:

1) Monica Bedi obtained a second passport in the assumed name of Sana Malik from the regional passport office in Secundarabad by submission of false documents such as residence proof, educational certificates etc. This was done with the help of accused no.4 to accused no. 7.

2) This passport was used to travel to Portugal and Lisbon.

3) The accused has been convicted under s. 419,420 and 120 B of IPC for the above mentioned offence.

4) Monica Bedi was convicted under section 256 of the IPC of Lisbon and served a part of her sentence.

Issues:

Was the convict entitled to the protection u/Art. 20(2) of the Constitution and S. 300 of the CrPC?

Decision:

The Judgment and sentence passed against Monica Bedi is not violative of Article 20(2) of the Constitution and s. 300 of CrPC.

Article 20(2) of the Constitution states that, “No person shall be prosecuted and punished for the same offence more than once”. This provision finds its roots in the common law principle that man shall not be brought into danger for one and the same offence more than once.Section 300 of the CrPC also embodies the same principle. It is important to note that the ban against second prosecution under s. 20(2) of the Constitution and s. 300 of CrPC can be attracted only when a person has been a) prosecuted and b) punished c) for the same offence.

Thus, there must be prosecution and punishment for the same offence. If the offences are distinct there can be no ban on second prosecution. In the case of State of Rajasthan v. Hat Singh it was held that if the same facts give rise to two distinct offences, then there can be no ban on second prosecution under s. 20(2) of the Constitution and s. 300 of CrPC.

In the present case, Monica Bedi was convicted in Lisbon u/s 265 of the IPC of Lisbon. However, it cannot be accepted or admitted that she was convicted for the offence of forgery of documents in Lisbon for which she was convicted under the IPC in India. Thus, same set of facts is giving rise to two distinct offences and therefore the ban of Art. 20(2) of the Constitution and s. 300 of CrPC is not applicable.

Institute of Chartered Accountants v. Vimal Surana

Facts:

A gentleman is found to be impersonating a Chartered Accountant and extracting money and entering into agreements with people. Therefore, he is culpable under Sections 24 and 26 of the Chartered Accountants Act. However, he is also liable to be punished under Sections 419, 420, 465, 467 and 473 read along with the sections of the Act.

Issues:

Whether the provisions contained in Sections 24, 24A and 26 of the Chartered Accountants Act, 1949 (for short, `the Act’) operate as a bar against the prosecution of a person who is charged with the allegations which constitute an offence or offences under other laws including the Indian Penal Code (IPC).

Holding:

A person can be convicted for the same actions under different acts as are applicable to the offences. The court recognised the inequality if someone who had committed an offence similar to the sections under the IPC but could also fall under the law in another act with lesser punishment.

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Section 169- Release of accused when evidence is deficient

Section 170- Cases to be sent to Magistrate when evidence is sufficient

• The Magistrate cannot direct the police to give a particular kind of report. However, once the report is given, the Magistrate needs to apply his mind. The Magistrate may then look at the police dairy to see the direction of the investigation. Under Section 156(3) the Magistrate may order a further investigation by the policy. The Magistrate may also drop the charges. The complainant may file a protest petition against this drop. However, this is a mere hearing and does not have a persuasive value.

Section 207- Supply to the accused of copy of police report and other documents

Section 171 – Complainant and witnesses not to be required to accompany police officer and not to subject to restraint.

The main reason is to ensure that they are not subjected to questioning.

Section 173 – Report of police officer on competition of investigation

Here there is a time frame within which investigation needs to be completed. This is however, not a hard rule and is flexible. The case will continue even if the time period is extended.

173(2)(ii)- This is just a protective measure to ensure that there is no compromise of the security of the complainant in any manner.

173(3) – The senior police officer is the Superintendent as given in Section 36.

 

173(6) – This is a strange power to the police officer that all documents need not be given to the accused. A reason however, has to be given as to why the documents are not being given. The denial of documents is only till the date of the trial. This power cannot deny the right to cross examine in any manner.

The defence, however, is not under any obligation to disclose their case. They only have to defend the case of the Prosecution.

173(8) – The police has the right to further investigate a case. This is different from the power with the Magistrate under Section156(3), where the Magistrate may ask for further investigation in a case.

Further investigation refers to the investigation subsequent to the initial report which has been filed by the police.

‘Investigation’ : Section 2(h)- Collection of physical evidence, statements, expert evidence, examination of a body etc. conducted by a police officer or by any person other than a magistrate, who is authorized by a Magistrate.

State of Bihar v. JAC Saldhana

ISSUE

• Whether the State Government was competent to –

1. Appoint further investigation to Inspector General Vigilance (a.k.a IGV) as per S.173(2) of the CrPC
2. Give the Magistrate jurisdiction to try the case

• Whether the Magistrate in exercising his jurisdiction committed an illegality to postpone the case?
• Whether the HC was justified in interfering with the investigation?

REASONING

1) a) In the present case, the State Government had given the investigation the Inspector General Vigilance.

36 – CrPC

The officer directed by the State Govt. to carry on the investigation is the Inspector General Vigilance who as per S.36 of the CrPC is an officer superior in rank to the officer in charge of a police station. In S. 36 –

• The use of word rank leads to the hierarchy of police officers
• The Vigilance Department is deemed to be a police station having its jurisdiction throughout the State of Bihar.
• They can also exercise the powers of an officer in charge of a police station throughout the local area to which he was appointed meaning the State of Bihar.

S. 173(8) – CrPC

The source of power of the State Government to direct IGV to investigate comes from S.173(8) which enables an officer in charge of a police station to carry on investigation. Also, due to the unfettered nature of the State Government’s power to direct an officer superior in rank to investigate is allowed with a combined reading of S.173(8) and S.36.

2) The power of the Magistrate under S.156(3) to direct further investigation is not in conflict with the power of the State government. The Magistrate can exercise the power even after submission of a report by the investigating officer to accept the conclusion or not. And this power does not affect the power of the investigating officer to further investigate the case as is provided in S.173(8). Therefore, the HC was in error holding that the State Government, in exercise of S.3 of the Police Act as superintendence, lacked the power to direct further investigation.

3) There is a clear-cut and demarcated sphere of activity in the field of crime detection and crime punishment. Investigation of an offence is the field exclusively reserved for the executive through the police department, the superintendent over which vests in the State Government. The executive is charged with a duty to keep vigilance over law and the police investigates a crime. After the full investigation and when the Court takes cognizance of the offence, the police investigation comes to an end, as stated in S.173(8). The adjudication function by the state commences. The present case is at the stage where investigation is not complete and by the order of the HC there is interference in this investigation in exercise of extra-ordinary jurisdiction. The Court should take a step back and refrain from entering this sphere which is clearly demarcated for the police and executive.

Therefore, the order by HC is quashed and the order by Addl Chief Judicial Magistrate restored to continue investigation.

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S.2(g) CrPC 

• Inquiry, according to Sec. 2(g) Cr.P.C. means every inquiry, other than a trial, conducted under the Code, by a Magistrate or a Court.
• It follows that Inquiry, as contemplated in the Cr.P.C can be held either by a Magistrate or by a Court.
• What is done by a Police Officer under the Cr.P.C. can never be described as Inquiry.
• Inquiry is distinct and different from trial. In practice, trial begins when the Inquiry ends.
• The object of inquiry is determination of truth or falsehood of certain allegations with a view to taking further action according to law.
• Inquiry may involve examination of witnesses and inspection of the locale.

Types of Inquiry:

• Judicial Inquiry
• Non-Judicial/Administrative Inquiry
• Preliminary Inquiry
• Local Inquiry
• Inquiry into an offence
• Inquiry relating to a matter other than the offence 

S.No.	Subject	Investigation	Inquiry
1.	By Whom	By a Police Officer or a person other than a Magistrate who is authorised by a Magistrate	By a Court or Magistrate
2.	Object	Collection of Evidence	Ascertainment of Truth
3.	Nature	Always non-judicial, pertaining to an offence	It may relate to an offence or a matter other than the offence
4.	Initiation	It commences when there are grounds for investigation, based on information or otherwise.	It may start on vague rumours with shadowy beginning vide AIR 1968, Madras 117.
5.	Sequence	In cognizable offence, police investigation is a normal preliminary to the accused being put up for trial.	In a warrant case instituted other than on Police report, the proceeding upto the framing of the charge is inquiry. Here, Trial follows inquiry.

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S.174, S.175 and S.176 

• An inquest by the police falls under S.174 of the CrPC. The main object is to ascertain the cause of death in cases of suicide, unnatural death and death caused in commission of offence, etc. The police cannot administer oath to the person summoned for inquest.
• An inquest by the magistrate falls under S.176 of the CrPC. Its main object is to determine the cause of death occurring in police custody and in the cases mentioned in S.174. A magistrate is authorised to administer the oath to the people examined by him.
• 175 of the CrPC talks about the power to summon persons. It gives the police the authority to summon witnesses at the inquest. It is not necessary for the police officer to record any statements from them or get them to sign the inquest report. Their statements fall under S.162 of the CrPC.

Inquest Report:

• Document of vital importance and has to be prepared promptly as it is handed over to the doctor along with the dead body when it is being sent for the post-mortem examination.
• If the facts of the inquest are mentioned in the report, it shows the true version of the occurrence has been given therein. If they are not mentioned, it shows that the police officer was unsure about the facts.
• It is not substantive evidence.
• It can corroborate the evidence given by the officer making the report.

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1. 160, S. 161, S.162, S. 163, S. 161 A, S. 164 of CrPC
2. 24, S.27 of the IEA

• 160 deals with the power of the police to require attendance of witnesses.

Examination of Witnesses by the Police

• 161 and S.162 deal with the oral examination of witnesses by the police, the record to be made of the statements and their use subsequently.
• 161 aims at obtaining evidence which may later be produced at trial. In case of a trial of a warrant case or before a sessions court, a charge may be framed against the accused on the basis of such statements.
• A statement of a person recorded by the police may be used for contradiction under S.145 of the Evidence Act for purposes of contradiction if the person is called as a prosecution witness.
• “Any person” in 161(1) includes any person who may be accused of the crime subsequently. “Any person supposed to be acquainted with the facts and circumstances of the case” includes the accused.
• 161(2) and Article 20(3) cover the same area and the accused is protected by the right against self-incrimination in light of the requirements of S.161(2).
• 161(3) gives the police a wide discretion to decide whether or not to record statements. If he does so, he must furnish a copy to each person whose statements he records.
• 162(1) says that there is no requirement for the person giving the statement to sign it and S.161(3) doesn’t require the same.
• Delays in the taking of statements by the police could render the evidence unreliable if there is a suggestion of unfair practice by the investigating agency.
• Recording of one joint statement of all witnesses is in contravention of S.161(3). It will not make their statements inadmissible but just affect the weight of the evidence.\
• Non-compliance of S.161(3) will not vitiate the entire trial unless it causes prejudice to the accused in his defence and that resulted in a failure of justice.
• “Statement” includes all written, oral statements and signs and gestures. S.161(3) and S.162 mean all that is stated by a witness to the police during the course of the investigation.

Evidentiary Value of Statements made to the Police

• A statement recorded by the police officer during investigation is not given on oath or tested by cross examination. According to the law of evidence, this is not evidence of facts stated and so cannot be substantive evidence.
• 162 bans the use of the statements collected by the police in the course of the investigation for corroboration. However, the proviso says that if the person giving the statement is called as a witness in court, the statement can be used to corroborate his testimony.
• The expression “statement or any part of a statement” in S.162 is not confined to a single statement given by a witness to a police officer but includes the statements given by him/her on different dates at different stages to the same or different IO.
• Evidence of a witness in court becomes inadmissible if it is established that the statement was signed by the witness at the instance of the police officer.
• Defence witnesses cannot be contradicted using such statements. The proviso only applies to prosecution witnesses.
• The bar in S.162 applies only to “an inquiry or trial in respect of any offence under investigation at the time when such statement was made”.

Inducement or Pressure

• 163 prohibits the offering of inducement to witnesses to obtain statements.
• 164(4) overrides this.

Kathi Kalu said that self incrimination is the conveying information based upon the personal knowledge of the given and does not include the mere mechanical process of producing documents in court which do not contain’ any statement of the accused based on his personal knowledge;

Aghnoo Nagesia v. State of Bihar

Facts:

The appellant was tried for murder. The principal evidence against him consisted of a first information report containing a full confession of the crime. The appellant was convicted under s. 302 Indian Penal Code by the trial court and the High Court upheld the conviction, by special leave he appealed to the Supreme Court.

The question before the court was whether the whole confessional statement in the first information report was banned by s. 25 of the Evidence Act or only those portions of it were barred which related to the actual commission of the crime.

Decision:

A confession may consist of several parts and may reveal not only the actual commission of the crime but also the motive, the preparation, the provocation etc. If the confession is tainted the taint attaches to the whole statement of the accused. [140 B-C]. If a statement contains an admission of an offence, not only that admission but also every other admission of an incriminating fact contained in the statement is part of the confession. Little substance and content would be left in ss. 24, 25 and 26 if proof of admissions of incriminating facts in confessional statement is permitted.

The appellant’s first information report was a confessional statement to a police officer and as such no part of it could be admitted into evidence on account of the ban in s. 25 except in so far as the ban was lifted by s. 27 and except in so far as it identified the appellant is the maker of the report.

The custody may also mean constructive custody. Therefore, in the current case though the person was technically not in the custody of the police while filing the FIR, it was held that the statement was self-incriminatory.

M.P. Sharma v. Satish Chandra

Issue: Search and seizure of documents under ss. 94 and 96 of the Code of Criminal Procedure. Whether compelled production of items acquired under Section 94 and 96 is within the meaning of Art. 20(3)?

Decision:  Held, that the provision for the search warrants under the first alternative of a. 96(1) of the Code of Criminal Procedure does not offend art. 19(1)(f) of the Constitution. A search and seizure is only a temporary interference with the right to hold the property searched and the articles seized. Statutory recognition in this behalf is a necessary and reasonable restriction and cannot per se be considered to be unconstitutional.

A compelled production of incriminating documents by a person against whom a First Information Report has been made is testimonial compulsion within the meaning of Article 20(3) of the Constitution. But a search and seizure of a document under the provisions of as Section 94 and 96 of the Code of Criminal Procedure is not a compelled production thereof within the meaning of Article 20 (3) and hence does not offend the said Article.

A power of search and seizure is, in any system of jurisprudence, an overriding power of the State for the protection of social security and that power is necessarily regulated by law. When the Constitution makers have thought fit not to subject such regulation to constitutional limitations by recognition of the fundamental right to privacy, analogous to the American Fourth Amendment, there is no justification for importing into it, a totally different fundamental right by some process of strained construction.

V.S. Kuttan pillai v. Ramakrishnan & anr.

Facts:  A search warrant was issued by the magistrate in favor of the petitioner to search the office premises and seize the books, documents etc. described in the application. The office premises is the HDMP Sabha.

Issue:  Whether the documents obtained by manner of search and seizure lead to self-incrimination of the individual?  Whether the Sabha could be searched?

Decision: The court held that the allowing of the search in itself cannot be considered as an act of self-incrimination. The reason being that during the search one does not have to be a party to the search. It is a mere passive submission and not a compulsion on the person being searched. Therefore, the documents therein acquired cannot be said to be inadmissible.

Additionally, the Sabha can be searched as it is a public place within the ambit of Section 93(1)(c) .

Nandini Satpathy v. P. L. Dani

Holding:

The appellant shall undertake to answer all questions put to her which do not materially incriminate her in the pending or imminent investigations or prosecutions. If she claims immunity regarding any questions she will, without disclosing details, briefly state in which case or offence in the offing makes her reasonably apprehend self- incrimination by her refused answers. If, after the whole examination is over, the officer concerned reasonably regards any refusal to answer to be wilful violation under pretence of immunity from self-incrimination, he will be free to prosecute the alleged offender after studying the refusal to answer in the light of the principles earlier set out, Section 179 I.P.C. should not be unsheathed too promiscuously and teasingly to tense lay people into vague consternation and covert compulsion although the proper office of Section 179 I.P.C. is perfectly within the constitutional limits of Art. 20(3).

161(2) meaningfully uses the expression ‘expose himself to a criminal charge’. Obviously, these words mean, not only cases Where the person is already exposed to a criminal charge but also instances which Will imminently expose him to criminal charges. In Art. 20(3) the expression (accused of any offence’ must mean formally accused in present not in future-not even imminently as decisions now stand. The expression “to be witness against himself” means more than the court process, Any giving of evidence, any furnishing of information, if likely to have an incriminating impact ensures the description of being witness against himself. Not being limited to the forensic stage by express words in Art. 20(3) the expression must be construed to apply to every stage where furnishing of information and collection of materials takes place. That is to say, even the investigation at the police level is embraced by Art. 20(3).

The right to consult an advocate of his choice shall not be denied to any person who is arrested. This does not mean that persons who are not under arrest or custody can be denied that right. The spirit and sense of Art. 22(1) is that it is fundamental to the rule of law that the service of a lawyer shall be available for consultation to any accused person tinder circumstances of near-custodial interrogation. Moreover, the observance of the right against self-incrimination is best promoted by conceding to the accused the right to consult a legal practitioner of his choice. Lawyer’s presence is a constitutional claim in some circumstances in our country also, and, in the context of Art. 20(3), is an assurance of awareness and observance of the right to silence.

Murray v. UK

M was arrested after being found in a house in which an IRA informer, L, had been held captive. On being taken for police questioning M was refused access to a solicitor for 48 hours. M chose to remain silent during a number of police interviews, despite being warned that adverse inferences might be drawn at trial from his silence. He was convicted of aiding and abetting the false imprisonment of L and sentenced to eight years’ imprisonment. The trial judge exercised his discretion under the Criminal Evidence (Northern Ireland) Order 1988 Art.4 and Art.6 to draw adverse inferences from the fact that M refused to account for his presence at the house. When M’s appeal against conviction was dismissed he lodged an application with the European Commission of Human Rights who referred the case to the European Court of Human Rights.

Held, that (1) by 14 votes to five, an accused’s right to silence was not absolute in the sense that no adverse inferences could ever be drawn at trial from that silence. It was a matter for the court in every case to determine what weight should be given to the fact that an accused had chosen not to offer an explanation of the circumstances of his case and to determine whether there had been improper compulsion on the part of the authorities. Having regard to all the evidence in the instant case, it could not be concluded that the drawing of reasonable inferences infringed M’s rights under the European Convention on Human Rights 1950 Art.6(1) and Art.6(2) and (2) by 12 votes to seven, having regard to the scheme under the 1988 Order, it was imperative in the interests of fairness for an accused to have access to a lawyer at the initial stages of police questioning. The refusal of the police to grant M access to a solicitor during the first 48 hours of his detention was therefore in breach of Art.6(1) read with Art.6(3)(c).

State of Bombay v. Kathi Kalu

Issue:

Whether handwriting and fingerprints would amount to self-incrimination?

Decision:

Section 73, Evidence Act also contemplates the obtaining of specimen handwriting. If a person gives the specimen handwriting voluntarily ,it cannot be said that he was compelled to give it. If the police merely requests the accused, then it does not amount to compulsion, but if it directs the

“To be a witness” means imparting knowledge in respect of relevant fact, by means of oral statements or statements in writing, by a person who has personal knowledge of the facts to be communicated to a court or to a person holding an enquiry or investigation.

When an accused person is called upon by the Court or any other authority holding an investigation to give his finger impression or signature or a specimen of his handwriting, he is not giving any testimony of the nature of a ‘personal testimony’. The giving of a “personal testimony’ must depend upon his volition. He can make any kind of statement or may refuse to make any statement. But his finger impressions or his handwriting, in spite of efforts at concealing the true nature of it by dissimulation cannot change their intrinsic character. Thus, the giving of finger impressions or of specimen writing or of signatures by an accused person, though it may amount to furnishing evidence in the larger sense, is not included within the expression to be a witness’.

A specimen handwriting or signature or finger impressions by themselves are no testimony at all being wholly innocuous because they are unchangeable except in rare cases where the ridges of the fingers or the style of writing have been tampered with. They are only materials for comparison in order to lend assurance to the Court that its inference based on other pieces of evidence is reliable.They are neither oral nor documentary evidence but belong to the third category of material evidence which is outside the limit of ‘testimony’.

Smt. Selvi v. State of Karnataka

Polygraph test, narco-tests etc are considered to be self-incriminations. This is unless it is done voluntarily. Even then, it can be used only as directive evidence.

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Investigation includes all the proceedings under the CrPC for the collection of evidence conducted by a police officer or any person, other than a Magistrate, who is authorised by a Magistrate.

The Supreme Court has viewed an investigation as consisting of:

1. Proceeding to the spot
2. Ascertaining facts and circumstances of the case

• Discovery and arrest of the suspected offender

1. Collection of evidence related to the offence – examination of persons related to the case including the written statements; search and seizure of things that may be necessary for the investigation or at the trial stage
2. Forming an opinion about whether there is a case that can be presented before a Magistrate for trial based on the materials collected.

 

FIR – Section 154 of CrPC

Contradiction–  Section 157 of IEA

Corroborations– Section 145 of IEA

Cross- examination – Section 145 of IEA

Dying declaration – Section 32 of IEA

The basic objective of the FIR is to set criminal law in motion through the agency of the police and to furnish to the police early information of any alleged criminal activity.

 

The characteristics of an FIR are:

• It must disclose the commission of a cognizable offence
• It should be given to the officer-in-charge of a police station
• It should be at the earliest point in time

If the above conditions are satisfied, the information lodged with the police and recorded under Section 154 CrPC can be treated as an FIR.

 

Other features of FIRs:

• In writing
• If orally given, reduced to writing by the police officer
• Signed by the person giving it
• A copy should be delivered to the informant free of charge
• It can be made by any person irrespective of whether he/she has first-hand knowledge of the crime (except in certain cases)
• Any delay in making the FIR must be mentioned and explained in the FIR itself
• Telegrams and telephonic messages cannot be treated as an FIR because they are not given in writing signed by the informant; neither are they reduced to writing by the police and read back to the informant. There is also no guarantee of their authenticity.

 

The value of the FIR can be explained in the following:

• Gives the earliest version of the occurrence
• Not a substantive piece of evidence
• It can be used for corroboration under Section 157 of the Evidence Act
• If the maker is if a witness, it can corroborate his testimony (FIRs are recorded before the investigation and so do not come under the purview of Section 162 of the CrPC.)
• It can be used to contradict the author under Section 145 of the Evidence Act.

 

Special uses of an FIR:

• As a conduct under 8 of the Evidence Act if lodged by the accused
• As an admission under 21 of the Evidence Act if lodged by the accused
• As a dying declaration, if lodged by the deceased whose death is in the issue
• As an entry by a public servant in the discharge of his official duties under 35 of the Evidence Act

S.180 of the IPC punishes refusal by the informant to sign the FIR.

If the police refuses to record the FIR, the remedy is provided by S.154(3) of the CrPC.

Tapinder Singh v. State of Punjab

Facts: Tapinder Singh fired 5 shots of bullets on his wife’s sister’s husband. The man was taken to a hospital. There was a phone call made to the police station (anonymous). A dying declaration was also taken from the deceased.

Issue:

• Whether the telephonic conversation was the FIR
• Whether the dying declaration was the FIR

Decision:

• The telephonic conversation is not an FIR as it did not in terms clearly specify a cognizable offense and cannot be treated as an FIR. The conversation merely informed the police about the happening of an event, so that further action can be taken.

Dying declaration can be recorded by the Executive Magistrate or any other person in a particular format. Even if it is not in a particular format it would not be in violation to § 162.

• The dying declaration was taken as the FIR. The importance of it being taken as an FIR is that now it could be corroborated with other evidence. Thus, making the case stronger. 

Aphren Joesph v. State of Kerala

The principal contention on behalf of the appellants (accused) was that there was a major delay in the lodging of the FIR and therefore that itself was sufficient to destroy the credibility of the prosecution case. Therefore, they also alleged that the complaint was not lodged as the prosecution witnesses took that time to concoct the story and they were not actually present at the sight of the crime.

Ratio of the case (majority opinion):

FIR, relating to the commission of an offence, is not a condition precedent to setting in motion of a criminal investigation. Nor does the statute provide that such information report can only be made by on eyewitness. F.I.R. is not even considered a substantive piece of evidence. It can only be used to corroborate or contradict the informant’s evidence in court. But this information when recorded is the basis of the case set up by the informant. It is very useful if recorded before there is time and opportunity to embellish, or before the informants’ memory fades.

Undue or unreasonable delay lodging the F.I.R., therefore, gives rise to suspicion, which put the Court on guard to look for the possible motive and the explanation for the delay and consider its effect on the trustworthiness of the prosecution version. No duration of time in the abstract can be fixed as reasonably for giving information of a crime to the police, the question of reasonable time being a matter for determination by the court in each case.

In the present case, the eye-witnesses were afraid to go to the police station during night time and their evidence could not be shaken in cross-examination Keeping in view the local tense atmosphere and the effect of the ghastly murder on the eye-witnesses, their strong disinclination to go and lodge the report during the night after the alleged occurrence, which seems quite normal, cannot by itself arouse any suspicion about the prosecution case. Further, both the Courts below have also accepted the prosecution version as a whole, for reasons, which cannot be said to be unsound or implausible. Therefore, the delay in making the F.I.R. has reasonably been explained by the prosecution witnesses.

Conclusion: There is no automatic presumption of lack of credibility of prosecution’s case in the event of a delay in lodging of an FIR. FIR is an important start to the investigatory process, but not the only one (the level of it’s importance has been elucidated above in the ratio). If a delay has occurred, the prosecution has the leeway to establish reasons for the delay and the Court can assess it’s credibility on a case to case basis.

State of Haryana v. Bhajan Lal

Irregularities in the investigation do not vitiate the proceedings.

Ramsinh Bavaji Jadeja v. State of Gujarat

Facts:

There were two brothers who wanted to watch a movie. The cycle stand owner, the appellants, in the theatre was charging a higher rate of 40ps. when compared to the price of other stands of 30ps hence the deceased decided to park their vehicles in a hotel adjacent to the theatre. This angered the appellants who then refused to let them enter the theatre. This led to a quarrel in which the deceased was hit.

Issue:

• Whether the telephonic conversation may be treated as an FIR (as in the case of Soma Bhai State of Gujurat)?

Decision:

However, it was held that in the current case, unlike in the Soma Bhai case, there was no information with regard to who the accused was amongst other details. This case is in furtherance of the Tapinder case, which held that a telephonic conversation since it did not provide proper information cannot be treated as an FIR and it was a mere information to the police of the happening of the event.

Babubhai v. State of Gujarat

Facts:   FIR 1 (7/7/2008) – There is a fight which ensues between two communities. This fight further leads to massive brawl. By the time the police was informed, the crowd had dispersed.   FIR 2 (8/7/2008) – At about 5.30 pm the same fight continued leading to the murder of 3 people and extensive rioting between the two communities. Some of the conspirators were common in both the FIR and the object of conspiracy in both the cases was not the same.

Issue: This Court while considering the question as to whether investigation and further proceedings on the basis of both the FIRs was permissible held that no straightjacket formula can be laid down in this regard. The only test whether two FIRs can be permitted to exist was whether the two conspiracies were identical or not.

Held:  After considering the facts of the said case, the Court came to the conclusion that both conspiracies were not identical. Therefore, lodging of two FIRs was held to be permissible.

Reasoning:  In T.T. Antony Vs. State of Kerala, the investigating agency has to proceed only on the information about commission of a cognizable offence which is first entered in the Police Station diary by the Officer In-charge under S.158 of CrPC and all other subsequent information would be covered by S.162 CrPC.

This is for the reason that it is the duty of the Investigating Officer not merely to investigate the cognizable offence report in the FIR but also other connected offences found to have been committed in the course of the same transaction or the same occurrence and the Investigating Officer has to file one or more reports under

S.173 CrPC.

Even after submission of the report under S.173(2) CrPC., if the Investigating

Officer comes across any further information pertaining to the same incident, he can make further investigation, but it is desirable that he must take the leave of the court and forward the further evidence, if any, with further report ounder S.173(8) CrPC.

There cannot be any controversy that Clause (8) of S.173 CrPC empowers the police to make further investigation, obtain further evidence (both oral and documentary) and forward a further report to the Magistrate. However, the sweeping power of investigation does not warrant subjecting a citizen each time to fresh investigation by the police in respect of the same incident, giving rise to one or more cognizable offences, consequent upon filing of successive FIRs whether before or after filing the final report under S.173(2) CrPC.

It would clearly be beyond the purview of S.154 and 156 CrPC if a case of abuse of the statutory power of investigation in a given case. In the Court’s view a case of fresh investigation based on the second or successive FIRs, not being a counter-case, filed in connection with the same or connected cognizable offence alleged to have been committed in the course of the same transaction and in respect of which pursuant to the first FIR either investigation is under way or final report under S.173(2) has been forwarded to the Magistrate, may be a fit case for exercise of power under S.482 CrPC which deals with the powers of HC to give an order necessary for securing means of justice or under Articles 226/227 of the Constitution.

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