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NEW SERIES- Questions And Answers For Judicial Service Examinations- By Justice V. Ramkumar [2]- Investigation By Police-II

Justice V Ramkumar
3 Nov 2022 7:27 AM GMT
NEW SERIES- Questions And Answers For Judicial Service Examinations- By Justice V. Ramkumar [2]- Investigation By Police-II
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A1. INVESTIGATION BY THE POLICE – Part IIQ.6 Is it not necessary that the FIR should be given by an eye-witness? Ans. No. FIR need not be given by an eye-witness. (Vide para 21 of Hem Raj v. State of Punjab (2003) 12 SCC 241 = AIR 2003 SC 4259 – N. Santhosh Hegde, B. P. Singh - JJ; Para 20 of CBI v. Tapan Kumar Singh (2003) 6 SCC 175 = AIR 2003 SC 4140 - N. Santhosh Hegde, B....

A1. INVESTIGATION BY THE POLICE – Part II

Q.6 Is it not necessary that the FIR should be given by an eye-witness?

Ans. No. FIR need not be given by an eye-witness. (Vide para 21 of Hem Raj v. State of Punjab (2003) 12 SCC 241 = AIR 2003 SC 4259 – N. Santhosh Hegde, B. P. Singh - JJ; Para 20 of CBI v. Tapan Kumar Singh (2003) 6 SCC 175 = AIR 2003 SC 4140 - N. Santhosh Hegde, B. P. Singh - JJ; Paras 26 and 24 of State of Maharashtra v. Ahmed Shaikh Babajan (2009) 14 SCC 267 - C. K. Thakker, D. K. Jain - JJ).

Personal knowledge of the incident not necessary for lodging an FIR. (vide Hallu v. State of MP (1974) 4 SCC 300 = AIR 1974 SC 1936 – M. H. Beg, Y. V. Chandrachud - JJ).

Locus standi of the complainant is irrelevant. Any citizen can lodge an FIR or file a complaint and set the criminal law in motion. A criminal proceeding is not a proceeding for vindication of a private grievance. (Vide Sheonandan Paswan v. State of Bihar (1987) 1 SCC 288 = AIR 1987 SC 877 – 5 Judges – P. N. Bhagwati – CJI, E. S. Venkataramiah, V. Khalid, G. L. Oza, S. Natarajan – JJ).

Q.7 When "information" is given by an eye-witness and a hearsay witness, who is to be preferred by the SHO ?

Ans. Eye-witness (Vide Umesh Singh v. State of Bihar (2013) 4 SCC 360 = AIR 2013 SC 1743 – C. K. Prasad, V. Gopala Gowda - JJ).

Q.8 Is there any distinction between the expressions "informant", "complainant" and "de facto complainant"?

Ans. Yes. In a case registered under Section 154 Cr.P.C the State is the prosecutor and the person who lodges the information with the SHO is the "informant". It is fallacious to call him "complainant" or "de facto complainant". A "complainant" is the person who makes a complaint as defined under Section 2 (d) read with Sections 190 (1) (a) and 200 Cr.P.C to a Magistrate. (Vide para 14 of Ganesha v. Sharanappa (2014) 1 SCC 87 = AIR 2014 SC 1198 C. K. Prasad, Kurian Joseph – JJ).

Q.9 If the FIR is given by the accused person himself, is it admissible?

Ans. If the F.I. Statement is non-confessional, then it is admissible and will constitute a conduct against him under Section 8 of the Evidence Act. (Vide Agnoo Nagesia v. State of Bihar AIR 1966 SC 119 = 1966 Cri.L.J 100 (SC) - 3 Judges – K. Subba Rao, Raghubar Dayal, R. S. Bachawat – JJ ; Bheru Singh v. State of Rajasthan (1994) 2 SCC 467 = 1994 KHC 1140 (SC) – Dr. A. S. Anand, Faizan Uddin - JJ. There can be situations where the accused sets the criminal law in motion by reporting the occurrence but hiding the fact that he is the culprit. In such cases his non-confessional statement is admissible as an FIR.

See also para 18 of Brajendra Singh v. State of M.P. (2012) 4 SCC 289 = AIR 2012 SC 1552 – A. K. Patnaik, Swatanter Kumar – JJ.

But, if the F.I Statement is confessional, then it is inadmissible being hit by Section 25 of the Evidence Act and can be looked into only for the limited purpose of identifying the accused as the maker of the FIR, unless his confession relates distinctly to "a fact discovered" within the meaning of Section 27 of the Evidence Act. (vide Agnoo Nagesia v. State of Bihar AIR 1966 SC 119 = 1966 Cri.L.J 100 (SC) - 3 Judges -– K. Subba Rao, Raghubar Dayal, R. S. Bachawat – JJ ; Khatri Hemraj Amulakh v. State of Gujarat (1972) 3 SCC 671 = AIR 1972 SC 922 – J. M. Shelat, H. R. Khanna - JJ; Bheru Singh v. State of Rajasthan (1994) 2 SCC 467 = 1994 KHC 1140 (SC) – Dr. A. S. Anand, Faizan Uddin - JJ.

FIR cannot be used against a co-accused or even against the maker of it if it is inculpatory in nature (Vide Bandlamuddi Atchuta Ramaiah and Others v. State of A. P (1996) 11 SCC 133 = AIR 1997 SC 496 – A. S. Anand, K. T. Thomas - JJ).

Q.10 Can a dying declaration recorded by a Police Officer under Section 32 (1) of the Evidence Act be treated as an FIR ?

Ans. Yes. Statement of the injured, in the subsequent event of her death may be treated as FIR. (Vide para 19 of Balbir Singh v. State of Punjab (2006) 12 SCC 283 = AIR 2006 SC 3221 S. B. Sinha, Dalveer Bhandari -JJ).

NOTE: The requirement that dying declarations should be recorded by a Magistrate is only a Judge-made law. The very fact that a dying declaration under Section 32 (1) of the Evidence Act is specifically excluded under sub-section (2) of Section 162 from the interdict under Section 162 (1) Cr.P.C., indicates that the law envisages a dying declaration to be recorded by the Investigating Police Officer.

In State of M.P. v. Direndra Kumar (1997) 1 SCC 93 = AIR 1997 SC 318 – G. N. Ray, B. L. Hansaria – JJ, the real first information was of the dying declaration given by the deceased in that case. The defense contention that the dying declaration was improbable since the subsequently registered FIR of a witness did not refer to the dying declaration, was not accepted by the Supreme Court. If so, the FIR which was subsequently registered was really hit by Section 162 Cr.P.C.


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