Nagaland

Importance of FIRs (Law in Motion – 16) by Rupin Sharma, IPS

Importance of FIRs (Law in Motion - 16) is in continuation to the articles on ‘Law’, written by Shri Rupin Sharma, IPS

Kohima, October 20 (NEx): The Importance of FIRs (Law in Motion – 16) is in continuation to the articles on ‘Law’, written by Shri Rupin Sharma, IPS, to educate people about the process of Law in matters of crime to create awareness and bridge the gap between law and people;

Law in Motion – 16: FIRs- Importance;

Having gone through the basics of an FIR, it will be good to examine some other connected issues which may be important from a common man’s perspective.

*How detailed should be the FIR?

To the extent possible, the FIR should contain as many details about the crime as possible. The factual information is important and should be correctly mentioned e.g., the date, time and place of crime and identities of the victims and accused/suspects (if known with certainty) should be mentioned.

However, caution should be exercised and no incorrect details should be incorporated in the ‘incident report’ which is in the descriptive.
Incorrect information in one part can later hit the trials adversely as the entire intent of the complainant can be doubted by the defence and once a doubt is sown on the minds of the magistrates, it becomes difficult to convict the accused on the basis of a doubtful testimony.

When exact details are not known or available, it is better to remain silent on them rather than mention incorrect details.

The law does not necessitate that the victim or accused details should be known or mentioned in the complaint/information to the police. The only pre-requisite is that there should have been a cognizable offence committed. It is upto the police and the investigators to find out details of the victim(s) or accused persons or the conspirators.

*How soon should an FIR be lodged?

The general rule of prudence is that the FIR should be lodged as soon as the knowledge of the offence becomes known. The Supreme Court has held that delay results in the embellishment and the report gets bereft of the advantage of spontaneity and additional elements get built in.

An FIR is a statement made soon after occurrence and there is a presumption that the memory of the informant is fresh and therefore would be devoid of fabrication and hence more reliable.

Delay is therefore viewed with suspicion.

However, in continuing offences, an FIR may be lodged at any time whenever possible. However, what is delay is a subjective matter in each case. Nevertheless, lodging of an FIR should not be foregone even if there is delay or incomplete information.

The Supreme Court has held (Moti Lal v. State of UP (2010) 2 Cr.LJ 1937(SC) 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 2017, the Supreme Court issued the following directions in matters related to FIR where 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.

In case there is connectivity problem due to geographical location, there is some unavoidable difficulty, the time can be extended up to 48 hours and upto a max of 72 hours due to remoteness of geographical location.

However, there are certain exceptions where the FIRs may not be uploaded on the police websites:

Offence is sensitive in nature like sexual offences,

Offences pertaining to insurgency, terrorism of that category,

Offences under POCSO Act etc.

This directive has been issued 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 equivalent post.

A decision taken by police officer or District Magistrate on not uploading the FIR on a website may be duly communicated to the concerned judicial magistrate.

When a copy of FIR is not provided/uploaded on the ground of sensitive nature of the case, aggrieved person can submit a representation to the superintendent of police or any person holding the equivalent post in state, even to the commissioner of the police in metropolitan cities.

In case wherein the decisions have been taken not to give 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.

*Non-Registration of FIR – Redressal of Grievances;

I have mentioned earlier that a complaint against the O/C or police station lies to the concerned Superintendent of Police. A written complaint can be made about the grievance along with a copy of the original complaint made to the police station and a GD Entry, if the informer has obtained one. This will help the SP seek a report from the O/C.

The complainants also have the recourse of writing to the judicial magistrates about their complaints not being addressed properly besides writing to the District magistrates or SDMs (SDOs). The Judicial Magistrates – the Sub-Divisional judicial Magistrate (SDJM) or the Judicial Magistrate (1st Class) or the Chief Judicial Magistrate (CJM) or even the Sessions Judge about their grievances. The judicial magistrates may ask the SP for a report or even the O/C concerned. They may also order registration of FIRs. Similarly, the SP, in exercise of his supervisory powers can also direct FIRs to be registered.

It is not uncommon for people/complainants to write directly to the president of India or Prime Minister or Governor or CM or Chief Secretary or Home Secretary etc., about crimes and request investigation and registration of FIRs. Most such offices maintain exclusive registers and documentation for such complaints. The original complaints are usually marked through the ‘Chain of Command’ to the concerned SP for a report and action. The SPs have to then get such matters investigated or inquired into. This particular mechanism – or at least the documentation of the complaints is quite weak in Nagaland and the ‘report back mechanism’ is weak too. This needs to be strengthened.

These miscellaneous complaints can be investigated through the concerned police station or through the Crime Cell Police Station (nomenclature differs from State to State) or the Central Investigation Agency (CIA) which works directly under the SP of a district. These Central Police Stations usually have jurisdiction over the entire district and can thus act within the jurisdiction of any other police station in a district. These are usually the SPs most trusted and capable investigators and also act to counter-balance and counter-check the work being done or omissions of the police stations within their own territorial jurisdiction.

All complaints made to senior functionaries which reach an SP or an SDPO or an O/C have to be attended to and a response prepared. The response may result in registration of an FIR or taking Security for Good Behaviour or simply making a GDE or making a Preliminary Enquiry and closing the case. However, a response is required.

*e-FIRs;

In modern times, a fair bit of sharing of information takes place through various electronic media – whatsapp, emails, facebook and a large number of other apps. The Section 154 only mentions about information in ‘writing’ or ‘orally’ and does not require the physical presence of the informer or even his signature, strictly speaking. If an information is about a cognizable offence, even without a signature, the O/C can construe it as an FIR and reduce it to writing.

However, emails, whatsapp and FB like media usually carry an ‘electronic signature’ or at least an identification of the informer. This can be treated as an FIR. In some states, the states have enabled filing of e-FIRs with advanced features, where the complainant/informer conveys the information to a central location, which subsequently sends it to the concerned territorial district and police station for investigation based on the date, place and time stamps on the e-FIRs.

Moreover, the Indian Evidence Act has incorporated a provision which legalises electronic communication as evidence and categorises it as ‘documentary evidence’.

“Evidence means and includes all documents including electronic records produced for the inspection of the Court, such documents are called documentary evidence.”

Therefore, FIRs can be registered or even complaints raised by sending emails or whatsapp messages or sms or even FB posts. Police officers cannot refuse registration if cognizable offences are made out.

by Rupin Sharma IPS