ARTICLES

First Information Report

First Information Report

Introduction:

The term (FIR) also known as First Information Report has not been defined anywhere in the Indian Laws. However, the following points make it easy to understand the concept of FIR.

  • It is a piece of information which is given to the police officer.

  • The information must relate to a cognizable offence.

  • It is a piece of information first in point of time.

  • It is on the basis of this information that the investigation into the offence commences.

  • The information given to the police officer and reduced into the writing as required by section 154 of Cr.PC is called as First Information Report. 

  • It is on the basis of this report that investigation of cognizable offences commences under this section.

Sec. 154 Cr.PC, 1973 states that ‘Every information relating to the commission of a cognizable offence, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction, and be read over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf’.


Where to lodge an FIR:

The general rule lays down that the information about an offence is ordinarily given in the police station under whose jurisdiction the offence has been committed, but the Apex Court in ‘State of Andhra Pradesh. v. Punati Ramube’ held that information about cognizable offence can be recorded in any area and subsequently it can be forwarded to the police station having jurisdiction over that area.

Purpose of FIR:

The immediate filing of the report with the police in respect of the commission of any cognizable offence enables the police to acquire early information regarding the situations in which the crime or offence was committed.  The delay in filing of FIR leads to deprivation of evidence and there are chances that the report gets bereft of the advantage of spontaneity.

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Who can file an FIR?

  • FIRs can be registered by a victim, relatives, witness, bystander or someone else with knowledge of the crime.

  • The Supreme Court in Hallu vs. the State of M.P. has observed that ‘Section 154 does not require that the Report must be given by a person who has personal knowledge of the incident reported. The section speaks of information relating to the commission of a cognizable offence given to an officer in charge of a police station and it remains silent as to who can file the same.’

 

Significance of FIR:

FIR is considered to be the first report of the crime committed thus, it is important from many points of views.  FIR is made immediately after the occurrence of the offence, hence the memory of the informant is fresh and the chances of fabrication are less. Delay in providing FIR is therefore viewed from grave suspicion.

 

Important aspects related to FIR:

  • The Indian Criminal law states that the informant/victim is entitled to avail a copy of the FIR which is lodged by him/her. The copy of the FIR is to be provided free of cost.

  • The concept of providing FIR copy to the informant/victim is mainly done with a view to providing him/her assistance in their respective case.

  • Not only this, under criminal law an accused is equally entitled to acquire a copy of the FIR. Section 207 of the Cr.PC, 1973 deals with this provisions.


Delay in Lodging of FIR:

Delay in giving first information can be condoned or excused if there is a justifiable explanation. Whether the delay is so long as to throw a cloud of suspicion on the deeds of the prosecution case depends upon a variety of factors. Where delay is caused due to its being lodged in the wrong police station, it was held to be reasonably explained. The Apex  Court in Harpal Singh v. State of Himachal Pradesh held that ‘if in the rape case lodging of FIR was delayed for ten days, the delay will be deemed to have been reasonably explained where the honour of the family was involved and the family members had to decide whether to take the matter to the court or not’.

It was held in Harbans Kaur v. State of Harayana, that even a long delay in lodging FIR can be condoned if witnesses have no motive of implicating accused and have given a plausible reason for delay. 

In Gajanan Dashrath Khartate v. State of Maharashtra, the Court observed that ‘delay in setting law into motion by lodging of the complaint and registration of first information report is normally viewed by courts with suspicion because there is possibility of concoction and embellishment of occurrence so it becomes necessary for the prosecution to satisfactorily explain the delay. The object of insisting upon prompt lodging of the report is to obtain early information not only regarding the assailants but also about the part played by the accused, the nature of the incident and the names of the witnesses. In the present case, the prosecution has satisfactorily explained the delay.’


Omission to Mention the Name of the Accused:

In Mittar Sen v. State of UP,  the name of the person who caused the injuries to the accused was not mentioned in the FIR. It was also not mentioned that how the accused received the injuries. Therefore, the Court did not accept the evidence of the prosecution witnesses. Further, it stated that where no satisfactory explanation is furnished for omission to mention the name of the accused in the FIR the veracity of the prosecution comes under suspicion. The Court was of the view that the inference arising from the fact that the names of the accused are not mentioned in FIR will differ from case to case. The fact that the names of some accused are not mentioned in the FIR is a circumstance, which the prosecution has to explain, though no rule of law stipulates that an accused whose name is not mentioned in the FIR is entitled to acquittal.

Omission to Mention Details of the Incidents:

It was held in Dharmendra Singh v. State of UP, that the FIR and the statements recorded under section 161 CRPC are not comprehensive to give each and every minute details which had come into the light during the deposition in the court. Sometimes witnesses do not think it proper to get it mentioned in the FIR or the statements recorded under section 161 Cr.PC but it does not mean that the facts do not exits.

It was held in Moti Lal v. State of UP,  that the FIR need not contain every minute detail about the occurrence. It is not a substantive piece of evidence. It is not necessary that the name of every individual present at the scene of the occurrence should be stated in the first information report.
 

Guidelines for Supply of FIR Copy to The Accused:

In Youth Bar Association of India v. Union of India,  the Apex court issued the following directions in matters related to FIR.

  • It directed Union of India and all the states to upload each and every FIR registered in all police station within the territory of India on the official website of the police of all states as early as possible preferably within 24 hours from the registration.

  • However, in scenarios where, there is a connectivity problem due to geographical location, or some unavoidable difficulty, the time can be extended up to 48 hours. The 48 hours, the period can be extended maximum up to 72 hours and it is an only relatable problem due to geographical location.

  • The copies of the FIR, unless the offence is sensitive in nature like sexual offences, offences pertaining to insurgency, terrorism of that category, offences under POCSO Act and such other offences must be uploaded to the police website and if there is no such website, on the official website of the state government within the 24 hours of the registration of the FIR so that the accused or any other person connected therewith can download it and file appropriate application before the court, as per law for the redressal of his grievances.

  • The decision not to upload a copy of the FIR on the website shall not be taken by the officer below the rank of Deputy Superintendent of police or any person holding the equivalent post. A decision was taken by a police officer or District Magistrate as the case may be duly communicated to the concerned judicial magistrate.

  • In case a copy of FIR is not provided on the ground of sensitive nature of the case, a person aggrieved after disclosing his identity can submit a representation to the superintendent of police or any person holding the equivalent post in the state, even to the commissioner of the police in metropolitan cities.

  • The officers are requested to constitute a committee of 3 officers, the committee so constituted will have to deal with the grievances within 3 days of the date of the receipt of the representation and communicate it to the aggrieved person.

  • In the case, wherein the decisions have been taken not to give a copy of FIR because of the sensitive information of the case. It will be open to the accused or his authorized representatives to file an application for grant of the certified copy before the court to which the FIR has been sent and the same must be provided promptly by the concerned court, not beyond 3 days of submission of FIR.

Zero FIR:

The concept of Zero FIR was highlighted after the Nirbhaya Case, 2012. Zero FIR is FIR which can be filed at any police station irrespective of its jurisdiction. The police station where a Zero FIR is filed has to mark the report specifically under the head ‘Zero FIR’ and has to give it a serial number as zero. Subsequently, the police station has to transfer the documents to the police station who has the jurisdiction to entertain the matter.

Zero FIR’s may be registered on the basis of a woman’s statement at any police station irrespective of jurisdiction. This means women can file an FIR at any police station and the complaint is required to be registered on the basis of the woman’s complaint verbatim.

Failure on part of a police officer to file a Zero FIR may invite prosecution under Section 166A of IPC and also departmental action.

Welfare Of Child Is Of Paramount Importance In Custody Cases: Supreme Court

Welfare Of Child Is Of Paramount Importance In Custody Cases: Supreme Court

SOUMITRA KUMAR NAHAR vs. PARUL NAHAR

A protracted court battle over child custody rights led the Supreme Court to comment on how children are always at the losing end of such family disputes. Observing that breakdown of marriage does not mean the end of "parental responsibility", the Court said children are "always the losers" and pay the "heaviest price" in a custody battle, adding courts should always give "paramount consideration" for the welfare of the child. 

A bench of Justice A M Khanwilkar and Justice Ajay Rastogi in the case of Soumitra Kumar Nahar v. Parul Nahar made the observations in judgement while dealing with a matter in which a couple had been embroiled in a matrimonial dispute since long.

The apex court also observed that rights of the child need to be respected as he or she is entitled to love of both the parents and said if efforts to settle matrimonial dispute through the process of mediation do not fructify, then courts should try to resolve it as expeditiously as possible because with every passing day the child pays a heavy price.

Further, the court interpreted that in a custody battle, no matter which parent wins but the child is always the loser and it is the children who pay the heaviest price as they are shattered when the court by its judicial process tells them to go with the parent whom he or she deems fit. The top court also said while deciding the matter of custody of the child that primary and paramount consideration is always the welfare of the child and if the welfare of the child so demands, then technical objections cannot come in the way.

However, while deciding the welfare of the child, it is not the view of one spouse alone which has to be taken into consideration. The courts should decide the issue of custody on a paramount consideration which is in the best interest of the child who is the victim in the custody battle.

In the instant case, the grandparents were not only deprived of love and affection of their children but also of their grandchildren and because of this matrimonial tussle between the parties, they have lost their lives. Therefore, the bench said "very few are fortunate" to have this pleasure in the fag end of their life where the grandparents remain in company of their children and also grandchildren.

 

https://publication.intolegalworld.com/100-landmark-judgment-2019-20.aspx

The Court was dealing with an appeal filed challenging a 2015 Delhi High Court verdict concerning child custody and visitation rights over two children born to the warring couple. Divorce proceedings initiated back in 2011 are pending before a lower court. Despite its best efforts, the Apex Court found that the couple were unable to reconcile with each other or arrive at a consensus on the issue of child custody and visitation rights.

Therefore, recently, it disposed of the appeal, while granting the parties liberty to move the appropriate court for custody or guardianship over the minor children. In the meanwhile, an interim arrangement directed by the Court in 2017 is to continue.

The Court also ordered that the pending divorce proceedings be completed expeditiously by the concerned court, and not later than December 31, 2020.

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LEGAL NOTES

DEFINITIONS UNDER ARBITRATION ACT

DEFINITIONS UNDER ARBITRATION ACT

Sec 2 (1), in this part unless the context otherwise requires:

 

  1. ‘arbitration’- means any arbitration whether or not administered by a permanent arbitral institution.

Explanation-  the definition is not comprehensive, it does not assign ant particular meaning to the term arbitration, therefore, its commonly understood meaning shall apply. The terms as defined in this clause connote that although arbitration is supposed to be entrusted to individuals appointed by the parties themselves this Act would recognize arbitration entrusted to permanent arbitral institutions also.

 However, individuals of the party’s choice can still be appointed as arbitrators because it is not obligatory to entrust it to an institution.

 

  1. ‘arbitration agreement’- means an agreement referred to in section 7.

Explanation- according to sec 7, arbitration agreement means an agreement by the parties to submit to arbitration all or certain disputes which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not.

An arbitration agreement may be in the form of an arbitration clause in a contract or in the form of a separate agreement or may arise where parties by reference import the arbitration clause contained in an earlier document into a subsequent contact so as to incorporate it.

 

  1. ‘arbitral award’-  includes an interim award.

Explanation-  sec 2(1)(c) merely clarifies that an arbitral award would include an interim award. It does not define the term. It must be read with sec 31. of the Act which deals with the form and contents of an arbitral award.

 

  1. ‘arbitral tribunal’-  means a sole arbitrator or a panel of arbitrators.

Explanation-  the expression arbitral tribunal means a sole arbitrator or a panel of arbitrators. In view of the provisions of sec 10 reference can be made to a sole arbitrator or an uneven number of arbitrators termed as an arbitral tribunal.

  1. ‘court’- means the principal Civil Court of original jurisdiction in a district and includes the High Court in exercise of its original jurisdiction, having jurisdiction to decide the questions forming the subject matter of the arbitration if the same had been the subject matter of a suit, but does not include ant Civil Court of a grade inferior to such principal Civil Court, or any Court of Small Causes.

 

  1. ‘international commercial agreement’-  means an arbitration relating to disputes arising out of legal relationships, whether contractual or mot, considered as commercial under the law in force in India and where at least one of the parties is-

  • an individual who is national of, or habitually resident in, any country other than India or

  • a body corporate which is incorporated in any country other than India or

  • the Government of a foreign country.

 

  1. ‘legal representative’- means a person who in law represents the estate of a deceased person and includes any person who intermeddles with the estate of the deceased and where a party acts in a representative character, the person on whom the estate devolves on the death of the party so acting.

Explanation-  the definition of the term ‘legal representative’ can be divided into three parts. According to the definition the following persons are to be regarded as legal representatives;

  • a person who in law represents the estate of the deceased, for example, an executor of a will or administrator of the estate of the deceased or an heir under the personal law; or in the Court of Wards who administers the estate of the ward;

  • a person who intermeddles with the estate of the deceased, that is, a person who retains possession of the properties belonging to the estate of the deceased with the intention of representing it.

  • in the case of claims of a representative character a person on whom the estate devolves on the death of a party to the arbitration.

         The following persons have been held not to be legal representatives:

  •  an assignee from a deceased zamindar to whom the holding reverts on the death of the tenant.

  • A person who claims adversely to the estate of the deceased.

  • A new trustee appointed or elected on the death of the deceased trustee.

 

  1. ‘party’- means a party to an arbitration agreement.

Explanation-  the meaning of the expression ‘party’ is not restricted to a party who signed the agreement to the extent as provided in secs. 40, 41 and 35 since the context requires otherwise. Therefore, to the extent, as provided in secs. 40 and 41 the term party will include the legal representatives of the party upon the death of the party or a receiver or official assignee in the case of insolvency of the party, further, in sec 35 persons claiming under the parties are equated with parties for the purposes of the binding character of an arbitral award.

 

  1. Sec 2(7) defines ‘domestic award’- as an arbitral award made under Part-I shall be considered as a domestic awards

Explanation- in order to constitute a domestic award it is essential that-

  • The arbitral award should be made in arbitration proceedings conducted in India. It is immaterial whether the arbitration is an international commercial arbitration or non-international commercial arbitration.

  • Such proceeding must be in accordance with Part –I of the Act.

Cross-Examination of Approver by the Accused

Cross-Examination of Approver by the Accused

Category; trial procedure 

The term approver is neither defined nor used under Criminal Procedure Code but is usually applied to a person, supposed to be directly or indirectly concerned in or privy to an offense to whom a pardon is granted under section 306 of CrPC with a view to securing his testimony against other persons guilty of the offense. The examination of the approver under section 306(4) of the code is mainly concerned with the examination of the complainant and witness by the Magistrate while processing the complaint under section 200 of the CrPC before setting up the process. The question of ‘Examination of the witness’ arises only after charges are framed under section 228 of CrPC. As there is no express provision u/s 306(4) CrPC which permits the accused to cross-examine an approver before committing the case to the Court of Session the Magistrate is not empowered to appreciate the evidence in session triable case. Further, the term “Examination’ under section 306(4)(a) cannot be interpreted to mean ‘Examination’ as contemplated under section 138 of Evidence Act, so as to give an accused the right to cross-examine the approver, at the pre committal stage. In Suresh Chandra Bahri v. State of Bihar (2000) the Supreme Court Bench has regarded section 306(4) as mandatory provision and observed that the object and purpose in enacting this mandatory provision is obviously intended to provide a safeguard to the accused in as much as the approver has to make a statement disclosing his evidence at the preliminary stage before the committal order is made and the accused not only becomes aware of the evidence against him but he is also afforded an opportunity to meet with the evidence of an approver before the committing Court itself at the very threshold. 

In no stretch of circumstances the cross-examination which is contemplated under section 306(4) of the Code can be equated with the ‘examination of witness’ under section 138 of Evidence Act. where u/s 305 CrPC when an approver is being examined by a Magistrate, he is merely recording his statement after grant of pardon and as such he merely acts as a post office by recording a statement u/s 306 CrPC and thereafter forwards it to the court of session which is the court competent to try the case and therefore the term ‘examination’ used in section 306(4) cannot be equated with the term ‘examination of witness’ meant u/s 138 of Evidence Act. 

 

 

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