Questions And Answers By Justice V. Ramkumar(4) -Investigation By Police-PART IV

A1. INVESTIGATION BY THE POLICE – Part IVQ.16 In a corruption case the trap as well as the investigation was conducted by a DySP of Police in a station where a Superintendent of Police ("SP" for short) was available. When the charge-sheet was filed before the Special Judge the incompetence of the DySP to conduct the investigation was pointed out and the Special Judge directed re-investigation by the SP and accordingly fresh investigation was conducted by the SP. During the trial of the case when one of the prosecution witnesses deviated from his earlier stand taken during the investigation by the DySP, the prosecutor declared the witness hostile and attempted to cross examine him with reference to the statement given by him to the DySP. This was objected to by the defence contending that the initial investigation conducted by the DySP was illegal and non est. Can the prosecutor be allowed to proceed with the trial as attempted by him ? Ans. Yes. The objection raised by the defense cannot be sustained. The investigation conducted by the DySP although without sufficient authority, is nevertheless investigation in the eye of law. It cannot be treated as non est. (Vide para 5 of Bhanuprasad Hariprasad Dave v. State of Gujarat AIR 1968 SC 1323 = 1968 Cri.L.J. 1505 – 3 Judges – G. K. Mitter, C. K. Vaidyalingam, K. S. Hegde - JJ). Q.17 Is not an FIR a substantive piece of evidence and what is its use ? Ans. No. It is not a substantive piece of evidence and can be used to corroborate or contradict the statement of the maker at the trial but cannot be used to corroborate or contradict other witnesses. (Vide – Nisar Ali v. State of U.P AIR 1957 SC 366 = 1957 Cri.L.J. 550 -3 Judges – P. N. Bhagwati, B. P. Sinha, J. L. Kapur - JJ; Surjit Singh v. State of Punjab 1993 Supp. (1) SCC 208 = AIR 1992 SC 1389 – M. M. Punchhi, B. P. Jeevan Reddy – JJ; State of Punjab v. Mohri Ram 1994 Supp. (1) SCC 632 – K. Jayachandra Reddy - J; Bheru Singh v. State of Rajasthan (1994) 2 SCC 467 – Dr. A. S. Anand, Faizan Uddin - JJ; State of U.P. v. Babul Nath (1994) 6 SCC 29 - Dr. A. S. Anand, Faizan Uddin - JJ; State of Gujarat v. Anirudhsing (1997) 6 SCC 514 = AIR 1997 SC 2780 – K. Ramaswamy, D. P. Wadhwa - JJ; Para 5 of Bijoy Singh v. State of Bihar (2002) 9 SCC 147 = AIR 2002 SC 1949 – R. P. Sethi, D. M. Dharmadhikari - JJ; Para 15 of Ravi Kumar v. State of Punjab (2005) 9 SCC 315 = AIR 2005 SC 1929 – Arijit Pasayat, S. H. Kapadia – JJ ; Para 18 of Ashram v. State of M.P. (2007) 11 SCC 164 = AIR 2007 SC 2594 – S. H. Kapadia, B. Sudershan Reddy - JJ; Paras 16 and 18 of Viswanathan v. State (2008) 5 SCC 354 = AIR 2008 SC 2222 – S. B. Sinha, V. S. Sirpurkar – JJ; Para 38 of Pandurang Chandrakant Mhatre v. State of Maharashtra (2009) 10 SCC 773 – D. K. Jain, R. M. Lodha - JJ). Paras 11 and 12 of Kirender Sarkar v. State of Assam (2009) 12 SCC 342 = AIR 2009 SC 2513 – Dr. Arijit Pasayat, Dr. Mukundakam Sharma – JJ. FIR can be used only for the purpose of corroborating or contradicting the maker thereof. (Vide Babu Singh v. State of Punjab (1996) 8 SCC 699 = AIR 1996 SC 3250 – Faizan Uddin, G. B. Pattanaik - JJ). FIR cannot be used to discredit the testimony of any person other than the maker of the FIR. (Vide Andrews v. State of Kerala (2002) 10 SCC 126 – G. B. Pattanaik, M. B. Shah – JJ ). Where the informant did not support the prosecution case and was declared hostile, it does not follow that the FIR would loose all its relevancy and cannot be looked into for any purpose. Although it is not a substantive piece of evidence it is certainly a relevant circumstance of the evidence produced by the Investigating Agency. (Vide paras 13 and 14 of Bable @ Gurdeep Singh v. State of Chattisgarh (2012) 11 SCC 181 = AIR 2012 SC 2621 – Swatanter Kumar, Ranjan Gogoi - JJ). FIR being the earliest version, is of importance in appreciating the evidence of witnesses, though it is not a piece of substantive evidence. (Vide – Ladha Shamji Dhanani v. State of Gujarat 1993 Supp. (1) SCC 20 = AIR 1992 SC 956 – K. Jayachandra Reddy, R. C. Patnaik - JJ; Para 15 of Kalyan v. State of U.P. (2001) 9 SCC 632 = AIR 2001 SC 3976 – M. B. Shah, R. P. Sethi – JJ ; Budh Singh v. State of U.P. (2006) 9 SCC 731 = AIR 2006 SC 2500 – S. B. Sinha, P. P. Naolekar – JJ ; Para 9 of Mahmood v. State of U.P. (2007) 14 SCC 16 = AIR 2008 SC 515 – Altamas Kabir, B. Sudershan Reddy - JJ; Para 11 of Sujoy Sen @ Sujoy Kumar Sen v. State of W.B. (2007) 6 SCC 32 = 2007 Cri.L.J. 3727 – S. B. Sinha, Markandey Katju - JJ; Ramesh Maruti Patil v. State of Maharashtra AIR 1994 SC 28 = 1994 Cri.L.J. 8 – M. M. Punchhi, S. C. Agrawal – JJ). Where the examination of the first informant has been dispensed with by...

Questions And Answers By Justice V. Ramkumar(4) -Investigation By Police-PART IV

Justice V Ramkumar

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