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Chapter XII Cr.P.C. Sections 154 to 173 Presented by : M.L.PANDIA Advocate – RAJASTHAN High Court JODHPUR E-mail: mlpandia@gmail.com Mobile: 9049142729

Criminal Justice System Police Cr.P.C. I.P.C. Evidence Act BP Act -1956 Advocates Prosecution & Defense Lawyers Judiciary -- -- -- Scrutinizes all acts done By police

First Information Report Section 154 Cr. P.C The Criminal law is set in motion by way of filing an FIR before the SHO at the police station. Moment FIR is lodged, the police derive unfettered powers. The police are duty bound to register an offence upon the disclosure of a cognizable offence However, a discretion lies with the police whether to arrest the accused or not

What FIR must contain ? FIR must disclose complete name of the complainant / age / back ground both current & permanent address of the complainant. This is useful to trace those temporarily staying persons, when the matter comes up for the hearing after couple of years, which could be anywhere from 5 to 8 in India.

Reason of complainant’s presence at the scene of offence Here complainant is supposed to mention how he was present there when the incident took place, like at market, Rly. &/or ST Stand/Stop, school, theatre, office, home, etc. If stated in FIR, then advocate for accused does not get chance to deny the presence of accused at the spot

Complainant – Victim or mere witness This must be disclosed in FIR If Victim – of physical violence or of paper crime like cheating or criminal breach of trust If witness – how came to know about offence, through whom, how and in what manner he is affected.

Place / Scene of offence in FIR Precise place (scene) of offence which can be described by directions N-S & E-W Distances are very important to mention, may approx. in terms of feet. Try to avoid using meters, which is not easy to follow. These distances must tally with spot panchama

Timing of the incident SHO must try get a perfect timing of the incident from the complainant If done, then Accused would not get an opportunity to claim an ‘alibi’ A difference of 15-20 minutes is ok But of 30-45 minutes might create a doubt about the incident

Motive (Intention = Mens rea) Only two types of people can do an offence Either a mad man (Section 100 CRPC) Of sane (okay man), who develops some intention / motive for commission of crime. Previous enmity or revenge Greed for money motive could be motive

Description of accused If accused known to complainant, then no difficulty. If unknown, then his height, built, colour complexion, hair style, teeth, moustache, clothing, shirt – full or half, trousers, chappals, shoes, etc. are of help if quoted in FIR, during the course of identification , if such person is luckily caught immediately after the offence

Manner of commission of crime The manner / mode in which the crime was committed. What weapons, instruments, articles were used, If more than one accused is involved, then the role or part played by each of the accused must be stated in FIR. This helps in case of Recovery Panchanama done U/s. 27 of Evidence Act.

Contact details of witnesses It is desirable to get all the contact details of the witnesses, with their full names, detailed addresses, etc. at the time of lodging of FIR itself, If this is done, then accused advocate does not get an opportunity to put suggestion of the fabrication of witnesses and hence evidence

Articles taken away from scene Very vital point in case of theft, robbery and / or dacoity If stated in FIR itself, then it helps the Complainant in his application for ‘Return of Property’ u/s. 457 of Cr.P.C If not properly stated, JMFC might refuse to give the custody of those article pending trial.

Traces left behind by accused If the articles like weapons used in crime are left behind Or like footwear, foot prints, handkerchief, wallet, etc. are left behind then must be stated in FIR Finger prints or marks or traces of hairs of accused might help to establish role of accused in crime

Memo must in case of injured Many SHOs are hesitant to issue memo to enable the accused to take the medical treatment. The freshness of injury is very vital in medical examination. If memo delayed, then it is detrimental to the Complainant & also might enable the accused adv. to suggest ‘self inflicted wound theory, to the complaint during his cross examination.

Intimating information to police This is a very vital point. Intimation can be given by personally visiting Pstn. and by orally or in writing. If telephonically, then SHO must make a note of it in Stn. Diary. This teleinfo must be re-mentioned when a detailed statement of complainant is taken when comes to Police station.

When was the information was given to police ? The time of intimating the information to the police is very vital. If there is delay, then SHO must find out from Complainant, the ‘reason for delayed reporting’. Column No. 8 of printed FIR format must be filled up with the ‘reason for delay

When delay can take place ? In case of evening or late night offences. Non availability of transportation like auto, bus, etc. Lack of safety in going out at night Discussion with elders in family in case of offence us. 354, 376, 509 of IPC. Such delays are ‘understandable’.

Re-writing statement of Complainant in Khabari Book Complaint ( Jabab ) of complainant must be promptly reduced in writing in printed book. Column No. 8 of ‘Delay’ should be filled up, without fail, if FIR is delayed for the reasons disclosed by the party. No variation in Jabab & statement reduced in Khabri book

Mentioning of FIR in Stn.Diary The synopsis of the complainant must be reduced in ‘Station Diary’ very promptly Together with C.R. No. Part I, II, etc. Sections & the law like IPC, B.P. Act, etc. Name of the person reducing this info in Station Diary must be mentioned

Reading over of FIR contents If the FIR contents are read over to the informant in the language, which is known to him. Such reading must be mentioned in the concluding para of the FIR. If complainant is non-Marathi, then a note of meaning of FIR in Hindi or English is desirable in conclusion.

Copy of Complaint Copy of the FIR be given to the complainant immediately (free of cost). His acknowledgement must be taken on Khabari Book copy Date & Timing must be quoted while giving him the copy.

Dispatching the copy to JMFC Any delay in dispatching the copy of FIR copy JMFC is bad for prosecution. It helps the accused to put up a theory, that FIR was noted much later and only crime number was reserve red/ registered / taken. Such copies should not be sent on holidays, before holiday JMFC

When FIR can be refused ? Only when the offence disclosed is purely of ‘Non-cognizable’ nature. Dispute is purely of civil nature. Offence has not yet taken place. Preparation to commit an offence as contemplated U/s. 511 of IPC is a crime, according to nature of intended crime, cognizable or NC. Refusal U/s. 157(1) of Cr.P.C.

Offences Under MOFA - 1963 Police normally do not register an offence against Promoter, who commits a ‘breach of an agreement’. FIR can very well be taken against Promoter U/s. 13 of MOFA – 1963, when : (i) he fails to comply with Section 3, 4, 10 & 11 of Act (3 Years imprisonment, fine or both (ii) criminal breach of trust of any amount advanced or deposited with him then Sec. 5, which warrants 5 yrs. Punishment. contd …. 2/-

MOFA – 1963 (Page 2) (iii) contravention of any other provision of this law, where no punishment is otherwise prescribed, then punishment is of 1 year. This will be an NC.

Credibility of a complaint Credibility of information is not the condition precedent for registration of the FIR. SHO is not supposed to scrutinize the complaint before recording it Disclosure of a cognizable offence is a condition precedent. No where in Cr.P.C. ‘an application enquiry’ is contemplated, but it is practice since the beginning .

FIR – Neither too short, nor too long FIR can not be too vague or short It should not be too exhaustive also. It should disclose a commission of a cognizable crime, by some one against someone, for some purpose motive, with or without / any objective in mind .

Options before Complaint, if you do not taken down his / her FIR He/She can file a private compliant Then JMFC, can order any of the following : - (i) An enquiry u/s. 202 of Cr.P.C. (ii) Can himself enquire into matter, (iii) can direct PI I/c. to taken down an FIR U/s. 156 (3) of Cr.P.C. (iv) can take the cognizance by himself

What JMFC can do when you file charge sheet Duty on PI I/c. to intimate the complainant, about filing or even non filing of a charge sheet in court When charge sheet is filed : - (a) JMFC can take cognizance i.e. ‘Issue Process’ against all accused, (b) or against some accused, (c) can add more persons as accused during the trial, if their role comes on record.

JMFC not bound to accept the charge sheet U/s. 173 of Cr.P.C. JMFC, can refuse to ‘Issue process’ i.e. to take the cognizance. Similarly, when 202 report is submitted to him, he can take the cognizance of the matter, even if the report d is negative, i.e. not disclosing a commission of any crime. Such report not binding on JMFC.

Duties of PI I/c. before sending a charge sheet in court PI I/c. signs a charge sheet (Dakhal Pahun ravana) in those matters, which have been investigated by his subordinate officers. He can refuse to sign an charge sheet , if he feels that the evidence is not sufficient to come to know about the involvement of accused in commission of crime.

What court orderly must do ? When he submits the copy of FIR to Assistant Supdt. ( Bhausaheb ), he must obtain his signature with a date and timing, etc. He should be encouraged to put up his rubber stamp if available. Such precaution saves police from lots of subsequent embracement

What law presumes about “Issue Process” order of JMFC Law presumes, that when JMFC issues process i.e. summons u/s. … of any Act, then it is presumed that he has read the entire charge sheet and papers annexed to it and he is satisfied about the involvement of accused in crime Evidence sufficient to secure their conviction.

Which police & court actions can be challenged in HC U/s. 482 of Cr.P.C. (i) Station Diary entry made by SHO (ii) Lodging of an FIR (iii) Investigation of crime (iv) Filing of a charge sheet (v) Issue Process / summons order passed by JMFC. (vi) Framing of a charge (vii) Hearing of criminal case.

How police machinery is misused in civil matters ! Family in Rabodi, Thane has Mother who has 3 sons (S1, S2 & S3) On 28.05.1989 S3 marries Dispute starts over the partition of their Jalgaon property Fight intensifies between M-S1-S2 with S3 & his new wife. On 25.06.1989 S3 & wife quits home and stays separately from the family.

From 25.06.1989 till Mid – 1997 S3 & his wife has no contact with mother & two sons. In Mid 97 she makes an application to Dy.CM about alleged ill-treatment without writing to local Pstn. PI, ACP, DCP, Addl. CP, Jt.CP., CP & / or DG. Dy.CM. writes to CP ‘Look into matter’, which ends up with P Stn. PI. PI asks SHO to take an FIR u/s. 498-A against mother in law & two brother in laws.

Page : 3 Hence offence registered in 1997 & after investigation charge sheet is filed. Matter comes for the hearing in 1999 for hearing and trial court JMFC acquits, mother in law & two brother in laws of the complainants. Since then complainant lady starts making allegations against local police about their soft corner to opp. party and alleges of making a weak charge sheet and therefore the accused were acquitted in her case.

In 1999, she writes to DGMS & Dy.CM threatening that she would commit a suicide in front of DG office and / or Mantralaya by call all media to see it. She sends 20 odd letters out of which in dozen letters her suicide threat is reflected. All applications are re-routed to local PI for necessary enquiries and actions.

Page : 5 On Saturday, 02.04.2001 an HM incident takes place at Rabodi, persons from both sides arrested and kept in lock up. On this day one officer takes a charge of PI Admn. at Thane Nagar Police Stn. He acquaints with the job & leaves the Pstn. Around 11 PM.

Page : 6 On Sunday 03.04.2001 same lady along with her husband & two daughters comes near Thane Ngr. Pstn. She pours a kerosene on her husband and kids and also on her person and then tries to take out a match stick to set them on fire. An alert female WPC senses the problem and hits her hand so the match stick is not lit up A commotion takes places. One PSI, who was SHO, is informed by WPC about the incident.

PSI-SHO makes a SDE and hands over a charge temporarily to some one and himself comes out of PStn. to find out what has happened. PSI himself lodges an FIR against her U/s. 307 of IPC for attempting to set her husband & kids on fire & also u/s. 309 IPC (suicide attempt) All are taken into custody.

PI I/c. & ACP physically present since 9 AM in Thane Court premises for bandobast, HM riots accused of earlier day were to be brought. Necessary SDE entries are there. This lady & her husband produced before the holiday JMFC & no remand sought since all articles like kerosene can, match box, earth sample, etc. was collected from scene of offence. Kids sent to Bhiwandi Remand Home.

JMFC grants JC, husband sent to Thane Jail & She is sent to Adharwadi, Kalyan jail. Investigation progresses and charge sheet is filed. Trial completed in Sessions Court by 2004 end. She & her husband acquitted.

State prefers an appeal against acquittal in HC, but it is rejected. She then files a private complaint before CJM, Thane seeking prosecution of PSI (Complainant) & PI (Admn.) who was an IO, for falsely implicating her. CJM dismisses her complaint for want of prosecution sanction U/s.197 of CR.P.C.

She files a criminal revision in Sessions court Thane against CJM order. Sessions Judge, asks her lawyer to check her & her husbands 313 statements in the Sessions trial in which both were accused in which she and her husband were acquitted.

Judge asks lawyer to find out whether she & husband has stated in her 313 statement that “PSI lodged an FIR even though there was no such incident & IO has done an investigation of a crime, about which he was knowing that no such incident had taken place at all. No such allegation against police in their 313 statements.

Judge asks why did not say so in her 313 statement ? No explanation was given about it. Judge also upholds CJM order and Cri. Revision also dismissed. She does not keep quiet and finally approaches HC in 2005 seeking a CID enquiry about the conduct of all officers, by way of filing a WP.

She makes PI I/c. Respondent No.1, ACP – Respondent No. 2 & DCP Zone I, Respondent No. 3, PI – I/O. Respondent NO. 4 & PSI – Complainant as Respondent No.5. She makes a fresh allegation against ACP, that on 03.04.2001, she had gone to Pstn. for application enquiry after she was intimated by police.

She admits her presence on 03.04.01 at TN Pstn. She alleges that ACP asked one WPC to take out gold ornaments worth Rs. 22,000/- which were on her person. She also alleges that DCP slapped her in presence of all.

HC Division Bench asks, why she did not made ACP & DCP as accused in her private compliant, when the allegations them are about an incident of 03.04.2001. Her lawyer could not answer. Judges ask whether she had made any compliant about ACP & DCP till this date against any one. Reply is ‘No’.

Judges ask about explanation for not doing so, which she could not give. Any attempt to file an FIR against ACP & DCP at police stn. Level. ‘No’. Why they were not made party to private complaint along with PSI & PI. No explanation. Judges tell indirectly, you either withdraw or they will pass an appropriate order.

No ‘prosecution sanction’ was necessary against ACP & DCP in private compliant, because their alleged acts do not come under ‘Police duties’ as per Bombay Police Act. She finally withdraws the writ petition before HC, to avoid allegations.

If her grievance against ACP & DCP and also against PSI & PI Admn. were genuine, then she could have lodged a complaint orally or in writing at Thane Nagar Pstn. Or by sending it by RPAD to PI I/c. Or by directly making an application to CP Thane. No such steps were taken by her.

From 1999 to 2005, 5 PIs and their subordinates lost several hundreds of man hours (time), energy, money and suffered headache over her false applications to the higher ups in police. What IO missed to do was to include her dozen odd letters in which she had mentioned about ‘suicide threats’ in her own hand writing with a signature sent from 1999 to 2001.

If these letters, which had become part of Thane Nagar Pstn. Record could have been easily used by prosecution to establish her ‘Mens rea’, i.e. intention to kill herself. An extremely useful evidence was brought before Sessions court, during her trial.

= Out come Entire case shows, how the FIR needs to be filed. How the evidence is to be recorded. How previous correspondence needs to be seen. How ‘intention to commit an offence’ is to be found out and how to use it. How to file the charge sheet.

Out come. The entire police machinery was used by her for settling her husband’s property share in Jalgaon. All police personnel from PC to PI were engaged in explaining their actions in her case to th higher ups like CP to DG & also Dy CM. Due to this police machinery could not concentrate adequately on serious crimes like 302, 307, etc. Be cautious while entertaining family or purely civil matters ! - The End’

Part – II Case Laws / Rulings of Bombay HC and / or SC Court These judgments are practicable in your day to day policing

Arresting a female accused Section 41 & 151 Cr. P.C . It may not be always possible and practical to have a lady constable present – In such a case arresting officer may arrest a female person for lawful reasons at any time of day or night even without presence of lady constable – He, however, should record reasons either before arrest or immediately after arrest for adopting such a course. State of Mah. V/s. Christian Community Welfare Council of India 2004 ALL MR (CRI) 301 SC.

Section 107 – Bond for keeping good behaviour & maintenance public peace Notice under Section 107 should show as to what information has been received by the magistrate so as to give the idea to higher court about the reasonableness of action taken by Magistrate. Suresh Hariram Sadarangani V/s. State of Maharashtra 2004 ALL MR (CRI) 392

Section 110 – Furnishing a bond of good behaviour None can be asked to furnish bond of good behaviour without an adjudication – A person can not be asked to furnish a bond of good behaviour only because two trials alleging that he committed the murder are pending in courts. Chandrakant Dharni Bharmaji V/s. Special Executive Magistrate 2004 ALL MR (CRI) 81

Registration of written complaint against police officers sent by Petitioner to CP Complaint very specific & replete with requisite information – Complaint ought to be registered as FIR – No scope for informal inquiry because such enquiry would partake the colour of investigation – It is only when the information received were to be vague information , anonymous or irresponsible rumour , it would not in itself constitute information within the meaning of Section 154 or the basis for an investigation U/s. 157 of Cr.P.C. Sudhir M. Vora V/s. Commissioner of Police & others. 2004 ALL MR (Cri) 2745

Delay in giving FI statement to police Deceased was dragged out his house & murdered by accused persons at about 7 / 7.30 PM. His wife who tried to rescue him, was also assaulted – Deceased’s wife states that she was afraid to go to police station at night, so she went only on next day and give FI statement – Held, her evidence can not be rejected on ground of delay in giving the FI statement when her evidence was corroborated by another eye witness who too, had sustained several injuries in the incident . State of Karnataka V/s. Bhaskar Kushali Kotharkar & ors. 2004 Supreme Court Cases (Cri) 1963

Delay in sending the FIR copy to JMFC U/s. 157 of Cr.P.C. to magistrate, delay of three days – delay due to the fact that investigation officer was busy during that period – delay causing no prejudice to the accused – delay not fatal to prosecution. State of Maharashtra V/s. Devappa Siddhapa Kamble & ors. 2004 ALL MR (CRI) 2716

FIR - Discrepancies / Omissions in FIR Names of witnesses not appearing in FIR – Held, that by itself can not be a ground to doubt their evidence – There is no requirement of mentioning the names of the witnesses in FIR. Raj Kishor Jha V/s. State of Bihar & Ors. 2004 Supreme Court Cases (Cri) 212

Delay of two days in lodging FIR Accused Collector of Customs, outraging modesty of woman, a probationer of Indian Customs & Excise Service Group A – Complainant waiting for arrival of her husband from outstation and apprised of the incident – Other higher ups in Customs department and legal opinion from senior criminal lawyers before lodging FIR – Held, the conduct of Complainant in circumstances in which she was place was perfectly natural and circumstances per say, sufficient explanation for the delay in filing the complaint. …. Continued in next side.

Section 154 – FIR delay in lodging – Rape Case Commission of rape on prosecutrix taking place on 25th November, 2000 – FIR lodged on 27th November, 2000 – Prosecutrix age in range of 13 to 14 years – Father of Prosecutrix not at home on the day of incident – Until evening 26th November, 2000 delay satisfactorily explained – Held mere delay in lodging the report itself is not fatal. Fulchand Vasant Bhirat V/s. State of Maharashtra 2004 ALL MR (CRI) 1729

FIR – Molestation of woman – Omission of lurid details in FIR Omission of lurid details in FIR – Hand written complaint by victim woman- Filed after consultation with her husband – held she would naturally have felt embarrassed to place lurid details of the assault on her by the accused – Complainant avoided giving any embarrassing details of the molestation even in her testimony – Omission of lurid details of the assault on her in the FIR is not a ground to discard to testimony of the Complainant. State of Maharashtra V/s. Satyendra Dayal Khare 2004 ALL MR (CRI) 2339

Delay in lodging FIR Incident taking place at 8 PM on earlier night – Complainant approaching Police Station only next morning – incident occurred in remote tribal area – No transportation or any means of communication during night – Taking into account these circumstances held, there was no delay in lodging FIR. Dharma Ravji Andher V/s. State of Maharashtra 2004 ALL MR (CRI) 2068

Criminal Trial – Prosecution – Non Examination of I.O. – Effect on trial If any statement of PW is contrary his previous statement recorded U/s. 161 of Cr.P.C. suffers from omission from certain material particulars, then the previous statement can be proved by examining the IO, who had recorded the same – In absence thereof, non-examination of investigation officer, held, would be of no consequence when the accused were not prejudiced – Acquittal solely on ground of non – examination, in the circumstance was not justified – Penal Code, 1860, Ss 304 Pt. II / 149 and 324 / 148 and 143. State of Karnataka V/s. Bhaskar Kushali Kotharkar & ors. 2004 Supreme Court Cases (Cri) 1963

Criminal Trial – Investigation – Highly unsatisfactory investigation Multiple Murder case – Incident inside a bus – Not seized – absence of proper scene Panchanama – Relevant facts not noted by IO – Delay of 6 days in sending FIR to JMFC. – Material witnesses not examined by accused for 15 days by IO. – Failure to produce all material witnesses – Case involved in death of eight persons should have been conducted with more circumspection & seriousness – failure of police to produce to produce best evidence before the court cast serious reflection on the system that is followed in investigation of criminal cases. Sahdeo & others v/s. State of Uttar Pradesh 2004 Supreme Court Cases (Cri) 1873

Grant of Bail No bail can be cancelled unless an opportunity is given to the accused to oppose the application

Sec. 46(4) : Arrest of female Accused No arrest to be made during night time EXCEPT in emergency circumstances, only by Women Police Officer, with the prior permission of the Magistrate where the offence is lodged or where the arrest is to be made. M.L.PANDIA,MA,LLB,PGDPM.

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