It is the spirit and not the form of law that keeps justice alive.
The prime objective of first information report or FIR is to set criminal law in motion. Information can be made regarding commission of two kinds of offences
Section 154 of IPC deals with information in cognizable cases
A cognizable offence in simple words means an offence in which arrest is made by police without any warrant. The information of commission of cognizable offence can be given either orally or in writing. However when the information is given orally the same is required to be reduced to writing by the police officer and using exactly the same words of the informant. And every such information whether given orally or in writing shall be signed.
Moreover a copy of the information as recorded shall also be given forthwith, free of cost, to the informant.
Information in case of non-cognizable offence:
A non-cognizable offence being an offence in which arrest cannot be made without warrant & thus power of police to investigate the matter does not arise unless ordered by Magistrate.
S.157provides that when information is given to an officer of commission of a non-cognizable offence, he shall enter or cause to be entered the substance of the information in a book to be kept by such officer and refer, the informant to the Magistrate.
This section clearly contemplates that no police officer shall investigate a non-cognizable case without the order of a Magistrate having power to try such case or commit the case for trial. And it’s only after that a police officer receives such order he may exercise the same powers in respect of the investigation except the power to arrest without warrant.
The provisions of this section also lays down in case of two or more offences of which at least one is cognizable, the case shall be deemed to be a cognizable case, notwithstanding that the other offences are non-cognizable.
Recourse in case of refusal to record F.I.R
Section 154 (3) provides remedy in case police officer refuses to record the information by providing that such person may send the substance of such information, in writing and by post, to the Superintendent of Police concerned. If superintendent of Police is satisfied that such information discloses the commission of a cognizable offence, then he shall either investigate the case himself or direct an investigation to be made by any police officer Subordinate to him, in the manner provided by the Code, and such officer shall have all the powers of an officer in charge of the police station in relation to that offence.
Beginning of the investigation
1)As soon as the F.I.R of cognizable case is made, Section 156 authorizes 2 category of people to commence the investigation-
a) Police Officer
The Police officer in charge of a police station may commensurate the investigation, without the order of a Magistrate
Secondly, Magistrate of first class and any magistrate of second class may also order such investigation.
2)However police officer in charge of investigation,is required forthwith to send a report of the same to a Magistrate empowered to take cognizance of such offence upon a police report and shall proceed in person, or shall depute one of his subordinate officers not, to proceed, to the spot, to investigate the facts and circumstances of the case, and, if necessary to take measures for the discovery and arrest of the offender.
The police officer may not investigate the matter in following two cases as per proviso of section 157:
(a)When information as to the commission of any such offence is given against any person by name and the case is not of a serious nature, or;
(b) If it appears to the officer in charge of a police station that there is no sufficient ground for entering on an investigation, he shall not investigate the case.
But in each of the cases mentioned above the officer in charge of the police station shall state in his report reasons for not complying provisions of the Code, and, in the case of situation (b) as above stated, the officer shall also forthwith notify to the informant, the fact that he will not investigate the case or cause it to be investigated.
3) On receiving the report Magistrate, may direct an investigation, or, if he thinks fit, at once proceed or depute any Magistrate subordinate to him to proceed, to hold a preliminary inquiry into or otherwise to dispose of, the case in the manner provided in the Code. The power of the police to investigate a cognizable case is uncontrolled by Magistrate & it’s only in the cases where that the police neglects their duties or are desisting on insufficient ground, Magistrate himself or any subordinate Magistrate deputed to him proceed to inquire the case (as held in the case Madhuresh v. CBI 1997 CriLJ 2820).
Evidentiary value of FIR
1) It’s a settled law that F.IR. is not substantive evidence i.e. it’s not the evidence of the facts which it mentions (As held in case of S.K Hasib v. State of Bihar 1972 4 SCC 773 )
2) However it can be used to corroborate the information u/s 157 of The Indian Evidence Act.
3) It can be used to contradict him u/s 145, The Indian Evidence Act, if he is called as witness at the time of trial.
4) It may also become relevant u/s 32 (1) & also u/s 8 of The Indian Evidence Act too.
Coming to the nutshell the dark reality is that despite the provisions on registering FIR & investigation guidelines being crystal clear in the Code yet police officers refuse to register F.I.R’s bluntly. It’s interesting to note that SC is not blindfolded to this bitter reality & in Lalita Kumari v. Government of UP & others, vide an order dated Order 14.07.2008 it was held by the court that :
- if steps are not taken for registration of F.I.Rs immediately and copies thereof are not made over to the complainants, they may move the concerned Magistrates by filing complaint petitions to give direction to the police to register case immediately upon receipt/production of copy of the orders and make over copy of the F.I.Rs to the complainants, within twenty four hours of receipt/production of copy of such orders.
- It may further give direction to take immediate steps for apprehending the accused persons and recovery of kidnapped/abducted persons and properties which were subject matter of theft or dacoity.
- In case F.I.Rs are not registered within the aforementioned time, and/or aforementioned steps are not taken by the police, the concerned Magistrate would be justified in initiating contempt proceeding against such delinquent officers and punish them for violation of its orders if no sufficient cause is shown and awarding stringent punishment like sentence of imprisonment against them inasmuch as the Disciplinary Authority would be quite justified in initiating departmental proceeding and suspending them in contemplation of the same.
The guidelines are an improvision upon already existing provisions; however the effectivity is still a long distance dream.