Chapter XII – Part.3 – Second FIR
Second fir: What is?
Multiple information or subsequent information by same person or different persons on the same occurrence / incident is barred as second information.
Concept of second fir
Same set of information regarding the same facts cannot be registered but the “test of sameness” has to be applied otherwise there would not be cross cases and counter cases. Thus, filing another FIR in respect of the same incident having a different version of events is permissible [AIR 1979 SC 1791 – Ramlal Narang vs. State; AIR 2001 SC 2637 – T.T. Antony vs. State of Kerala; AIR 2001 SC 826 – Sudhir vs. State of M.P; AIR 2004 SC 4320 – Upkar singh vs. Ved Prakash; (2010) 12 SCC 254 – Babubhai vs. State of Gujarat relied in Shiv Shankar Singh vs. State of Bihar – 2012 (1) Crimes 16 (SC)].
Any statement which comes into being from any witness subsequent to the registration of the case, would still be a statement only under section 161 of Cr.P.C and yet another case cannot be registered under section 154 of the Cr.P.C on the said statement. Further, madras high court has held that therefore, in respect of an occurrence, if on the basis of the earliest information, a case has been registered under section 154 Cr.P.C., in our considered view, as per the settled law, there is no scope to register yet another case in respect of the same occurrence except a counter case [P.Pugalenthi vs. State of T.N – CDJ 2016 MHC 904 cited in V.Radhika Selvi vs. State of T.N – 2017 (2) MWN (Cri) 62 (Mad-DB)].
Second fir: If two firs registered on the same occurrence in two different states (places) which one shall be construed as first fir
In a case of matrimonial suicide, Tamilnadu police has registered FIR u/s 174 Cr.P.C against the husband/appellant. After the inquiry, I.O has stopped the investigation and further action dropped against the appellant. But, the father of the deceased has lodged the FIR against the husband/appellant in kerala for the offences u/ss. 304-B r/w 34 IPC. On this matter, the Apex Court has held that in a case of this nature and following the aforementioned decisions and particularly in view of the fact that the police at Courtallam, Tamil Nadu had already been informed, although stricto sensu, the same cannot be construed to be an FIR within the meaning of provisions of Section 154, Cr.P.C., and, thus, F.I.R. lodged at Kadakkavoor Police Station was maintainable [Premkumar and Ors. vs. State of Kerala – Crl. Apl No: 2088 of 2008 – dt: 19.12.2008 – SC – (2008)17 SCC 264].
First information report in counter case: Not second fir
Therefore, Upkar Singh clarified that this Court’s previous decision in T.T. Anthony will not bar the filing of a second complaint with respect to the same incident, if such second complaint is filed as a countercomplaint by the other party. We are in agreement with the aforementioned construction of T.T. Anthony. The grave implications of allowing such misuse may be understood better in light of the following exposition by this Court in Amitbhai Anilchandra Shah v. CBI & anr., (2013) 6 SCC 348:
“37. This Court has consistently laid down the law on the issue interpreting the Code, that a second FIR in respect of an offence or different offences committed in the course of the same transaction is not only impermissible but it violates Article 21 of the Constitution. In T.T. Antony [(2001) 6 SCC 181=2001 SCC (Cri) 1048] , this Court has categorically held that registration of second FIR (which is not a cross case) is violative of Article 21 of the Constitution…”
Article 21 of the Constitution guarantees that the right to life and liberty shall not be taken away except by due process of law. Permitting multiple complaints by the same party in respect of the same incident, whether it involves a cognizable or private complaint offence, will lead to the accused being entangled in numerous criminal proceedings. As such, he would be forced to keep surrendering his liberty and precious time before the police and the Courts, as and when required in each case. As this Court has held in Amitbhai Anilchandra Shah (supra), such an absurd and mischievous interpretation of the provisions of the CrPC will not stand the test of constitutional [KRISHNA LAL CHAWLA & ORS. vs. STATE OF U.P. & ANR – CRIMINAL APPEAL NO. 283 OF 2021 – MARCH 08, 2021].
Chapter XII – Part.4 – General propositions as to first information report
First information report can be registered in any police station
Registration of FIR is mandated when information on cognizable offence is received by the police. Precedents suggest that at the stage of investigation, it cannot be said that the concerned police station does not have territorial jurisdiction to investigate the case [Rhea Chakraborty vs. State of Bihar and Ors. – dt: 19.08.2020 – SC – Transfer Petition (Crl.) No. 225 of 2020 – AIR 2020 SC 3826].
Question of law raised
“The limited question is whether the High Court was justified in quashing the FIR on the ground that Delhi Police Station did not have territorial jurisdiction to investigate the offence”
It is true that territorial jurisdiction also is prescribed under Sub-section (1) to the extent that the Officer can investigate any cognizable case which a court having jurisdiction over the local area within the limits of such police station would have power to inquire into or try under the provisions of Chapter XIII. However, Sub- section (2) makes the position clear by providing that no proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered to investigate. After investigation is completed, the result of such investigation is required to be submitted as provided under Sections 168, 169 and 170. Section 170 specifically provides that if, upon an investigation, it appears to the Officer in charge of the police station that there is sufficient evidence or reasonable ground of suspicion to justify the forwarding of the accused to a Magistrate, such officer shall, forward the accused under custody to a Magistrate empowered to take cognizance of the offence upon a police report and to try the accused or commit for trial. Further, if the Investigating Officer arrives at the conclusion that the crime was not committed within the territorial jurisdiction of the police station, then F.I.R. can be forwarded to the police station having jurisdiction over the area in which crime is committed. But this would not mean that in a case which requires investigation, the police officer can refuse to record the FIR and/or investigate it [Satvinder Kaur vs. State (Govt. of N.C.T. of Delhi) and Ors – Crl. A. No: 1031 of 1999 – dt: 05.10.1999 – SC – (1999) 8 SCC 728]
First information report: Jurisdiction for investigation
Hence, in the present case, the High Court committed grave error in accepting the contention of the respondent that investigating officer had no jurisdiction to investigate the matters or the alleged ground that no part of the offence was committed within the territorial jurisdiction of police station at Delhi. The appreciation of the evidence is the function of the Courts when seized of the matter. At the stage of investigation, the material collected by an investigating officer cannot be judicially scrutinized for arriving at a conclusion that police station officer of particular police station would not have territorial jurisdiction. In any case, it has to be stated that in view of Section 178(c) of the Criminal Procedure Code, when it is uncertain in which of the several local areas an offence was committed, or where it consists of several acts done in different local areas, the said offence can be inquired into or tried by a Court having jurisdiction over any of such local areas. Therefore, to say at the stage of investigation that S.H.O., Police Station Paschim Vihar, New Delhi was not having territorial jurisdiction, is on the face of it, illegal and erroneous. That apart, Section 156(2) contains an embargo that no proceeding of a police officer shall be challenged on the ground that he has no territorial power to investigate. The High Court has completely overlooked the said embargo when it entertained the petition of respondent No. 2 on the ground of want of territorial jurisdiction [Satvinder Kaur vs. State (Govt. of N.C.T. of Delhi) and Ors – Crl. A. No: 1031 of 1999 – dt: 05.10.1999 – SC – (1999) 8 SCC 728].
The police constable at the police station refused to record the complaint presented by PW 1 on the ground that the said police station had no territorial jurisdiction over the place of crime. It was certainly a dereliction of duty on the part of the constable because any lack of territorial jurisdiction could not have prevented the constable from recording information about the cognizable offence and forwarding the same to the police station having jurisdiction over the area in which the crime was said to have been committed [State of A.P v. Punati Ramulu & Others – AIR 1993 SC 2644=1933 Cr.L.J 3684 (SC)=1994 (SCC)1 (supp) 590].
First information report: Whether Investigation Officer can foreclose?
Besides, the Code gives power to the police to close a matter both before and after investigation. A police officer can foreclose an FIR before an investigation under Section 157 of the Code, if it appears to him that there is no sufficient ground to investigate the same. The Section itself states that a police officer can start investigation when he has a ‘reason to suspect the commission of an offence’. Therefore, the requirements of launching an investigation under Section 157 of the Code are higher than the requirement under Section 154 of the Code. The police officer can also, in a given case, investigate the matter and then file a final report under Section 173 of the Code seeking closure of the matter. Therefore, the police is not liable to launch an investigation in every FIR which is mandatorily registered on receiving information relating to commission of a cognizable offence [PARTY: Lalita Kumari Versus Govt. of U.P. & Ors – WRIT PETITION (CRIMINAL) NO. 68 OF 2008 – NOVEMBER 12, 2013 (5 Judge Constitution Bench)].
Chapter XII – Part.5 – Appreciation of first information report
First information report: Delay in lodging – object
Delay in setting the law into motion by lodging of complaint and registration of first information report is normally viewed by courts with suspicion because there is possibility of concoction and embellishment of the occurrence. So it becomes necessary for the prosecution to satisfactorily explain the delay. The object of insisting upon a 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 witnesses [Gajanan Dashrath Kharate vs. State of Maharashtra – (2016)2 SCC (Cri) 436=(2016) 4 SCC 604].
First information report: Whether delay in registering the fir is always fatal to the prosecution
It can thus be seen from the evidence of PW-14, IO that the police had information about the incident at least prior to 11.45 PM on 3rd November 2006. No doubt that mere delay in registering FIR would not be fatal to the prosecution case. The effect of delay in lodging the FIR would differ in the facts and circumstances of each case [Nand Lal and Ors. vs. The State of Chhattisgarh – Criminal Appeal Nos. 1421 of 2015 – dt: 14.03.2023 – SC – [2023] 2 SCR 276].
First information report: No hard and fast rule applicable for delay
From the observations quoted above, it is also evident that there is no hard-and- fast Rule which can be applied to determine the effect of delay in filing the FIR, and the Court is duty-bound to determine whether the explanation afforded is plausible enough based on the given facts and circumstances of each case. A similar view was taken by this Court in Ram Jag v. State of U.P – (1974) 4 SCC 201, wherein this Court observed as follows:
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… It is true that witnesses cannot be called upon to explain every hour’s delay and a common sense view has to be taken in ascertaining whether the first information report was lodged after an undue delay so as to afford enough scope for manipulating evidence. Whether the delay is so long as to throw a cloud of suspicion on the seeds of the prosecution case must depend upon a variety of factors which would vary from case to case. Even a long delay in filing report of an occurrence can be condoned if the witnesses on whose evidence the prosecution relies have no motive for implicating the Accused. On the other hand, prompt filing of the report is not an unmistakable guarantee of the truthfulness of the version of the prosecution.
[State of M.P. vs. Ratan Singh and Ors – dt: 05.09.2018 – SC Criminal Appeal No. 1034 of 2013 – (2020) 12 SCC 630]
First information report: Duty of the judge if delay in fir
It is settled in law that mere delay in lodging the FIR cannot be regarded by itself as fatal to the case of the prosecution. However, it is obligatory on the part of the court to take notice of the delay and examine, in the backdrop of the case, whether any acceptable explanation has been offered, by the prosecution and if such an explanation has been offered whether the same deserves acceptance being found to be satisfactory [Kankaujal Lal vs. State of Rajasthan – 2013(6) SCALE 242].
First information report: How to prove before the court?
Neither is it necessary to doubt the FIR because Girjesh Rai was not examined. The FIR has been otherwise proved in the evidence of the Police Officer (P.W. 7) who states that Himanshu Mohan Rai and Girjesh Rai came with a written report and he wrote the chik recorded as GD 1/005 on the FIR. This is supported by the deposition of P.W. 1 who referred to the handwriting of Girjesh Rai and his signatures and identified it on the Tehrir [Himanshu Mohan Rai vs. State of U.P. and Ors – Criminal Appeal Nos. 827 of 2011 – Decided On: 07.03.2017 – (2017) 4 SCC 161]].
Confession: Fir by accused: Use of
However, there is a clear indication in the first statement given by the accused himself which formed the FIR in this case to the effect that the deceased in an aggressive manner went to the shop of the accused and showered virulent abuses. It may be mentioned here that we are not using the statement of the accused before the SHO for any purpose in favour of prosecution and against the accused. The only admission which we find in the statement in favour of the accused is being taken into account to examine whether the case falls under exception No. 1 to Section 300, I.P.C., particularly, in view of the fact that there is no other evidence disclosing as to how the quarrel ensued and attack took place. Having carefully considered the entire material, we are of the view that Exception No. 1 to Section 300 is attracted in this case [Shri Murli @ Denny vs State Of Rajasthan – AIR 1994 SC 610, 1994 CriLJ 1114 (SC)].
Second fir: Why not admissible?
In our opinion, this Court in that case only held that any further complaint by the same complainant or others against the same accused, subsequent to the registration of a case, is prohibited under the Code because an investigation in this regard would have already started and further complaint against the same accused will amount to an improvement on the facts mentioned in the original complaint, hence will be prohibited under Section 162 of the Code [Upkar Singh v. Ved Prakash & ors., (2004) 13 SCC 292 followed in KRISHNA LAL CHAWLA & ORS. vs. STATE OF U.P. & ANR – CRIMINAL APPEAL NO. 283 OF 2021 – MARCH 08, 2021].
Chapter XII – Part.6 – Evidentiary value of first information report
Author’s note:
In this chapter I have borrowed certain notes from Indian Evidence Act, 1872 settled propositions for the purpose of deciding evidentiary values embedded in the Code. Without knowing the basic principles of Indian Evidence Act 1872 and its evidentiary value, it is little hard to understand the importation of evidentiary values of certain sections under the Code. The sections embedded in this code is either having same principles or overriding effect. Hence it is important to know the basic principles of Evidence Act.
Now …
What is substantive evidence?
Substantive evidence is the evidence of the witness in the court on oath, which can never be rendered inadmissible on this count [Sidhartha Vashisht @ Manu Sharma – AIR 2010 SC 2352=2010(4) SCALE 1].
It is trite that a case has to be decided on the basis of the evidence adduced by the witnesses during the trial and any previous statements made by any of such witnesses can be used by the defence for the purpose of only contradicting and discrediting that particular witness in the manner laid down in Section 145 of the Evidence Act. Under no circumstances can such previous statements be treated as substantive evidence as has been treated by the High Court in the instant case [Chinnamal vs State of T.N. and Others – (1996) 8 Scale 502=(1997) 1 SCC 145=(1997) SCC (Cri) 51].
FIR: Value & use
The first information report recorded u/s 154 Cr.P.C is not a substantive piece of evidence. It may be used to corroborate the informant u/s 157 of the Evidence Act or to contradict him u/s 145 of the Evidence Act in case the informant appears as a witness at the trial. Where the accused himself lodges the first information report, the fact of his giving the information to the police is admissible against him as evidence of his conduct u/s 8 of the Evidence Act and to the extent it is non-confessional in nature, it would also be relevant u/s 21 of the Evidence Act but the confessional part of the first information report by the accused to the police officer cannot be used at all against him in view of the ban of section 25 of the Evidence Act [Bheru Singh vs. State of Rajasthan – 1994(1) Crimes 630 (SC)=JT 1994(1) SC 501=1994(1) SCALE 353=(1994)2 SCC 467].
Death of informant (if not victim): Content cannot be proved
Equally unjustified was the High Court’s reliance upon the contents of the FIR lodged by Walaiti Ram who, as stated earlier, could not be examined during the trial as he had died in the meantime. The contents of the FIR could have been used for the purpose of corroborating or contradicting Walaiti Ram if he had been examined but under no circumstances as a substantive piece of evidence [Harkirat Singh vs. State of Punjab – AIR 1997 SC 3231].
In the instant case, two persons lost their lives and three were injured. Nagu, complainant/informant, died before the trial could commence and thus, the contents of the FIR could not be substantiated by him as he could not be examined [Ranjit Singh & Ors vs. State of M.P – AIR 2011 SC 255=2011 Cr.L.J 283 (SC)=2011(2) SCC (Cri) 227].
What is dying declaration?
The dying declaration is a statement by a person as to the cause of his death or as to any of the circumstances of the transaction which resulted in his death and it becomes relevant under Section 32(1) of the Indian Evidence Act in a case in which the cause of that person’s death comes into question. It is true that a dying declaration is not a deposition in court and it is neither made on oath nor in the presence of the accused. It is, therefore, not tested by a cross-examination on behalf of the accused. But a dying declaration is admitted in evidence by way of an exception to the general rule against the admissibility of hearsay evidence, on the principle of necessity. The weak points of a dying declaration just mentioned merely serve to put the court on its guard while testing its reliability, imposing on it an obligation to closely scrutinise all the relevant attendant circumstances [Tapinder Singh vs. State of Punjab and Ors dt: 07.05.1970 – AIR 1970 SC 1566 followed in Uka Ram vs. State of Rajasthan dt: 10.04.2001 – SC – AIR 2001 SC 1814 [3 judge bench].
Informant not examined
It is well settled that unless a First’ Information Report can be tendered in evidence under any provision contained in Chapter II of the Evidence Act, such as a dying declaration falling u/s 32(1) as to the cause of the informant’s death, or as part of the informant’s conduct u/s 8, it can ordinarily be used only for the purpose of corroborating, contradicting or discrediting (under Sections 157, 145 and 155, Evidence Act) its author, if examined, and not any other witness. As already noticed, in the present case, Smt. Ishwari the informant was not examined as a witness. It is admittedly not a statement falling under any provision in Chapter II of the Evidence Act. The High Court was thus in error in using Ex. Kha 2, as they did [Shanker vs. State of U.P – AIR 1975 SC 757=1975(3) SCC 851=1975 SCC (Cri) 270].
How to prove the contents of a document?
Under the Law of Evidence also, it is necessary that contents of documents are required to be proved either by primary or by secondary evidence. At the most, admission of documents may amount to admission of contents but not its truth. Documents having not been produced and marked as required under the Evidence Act cannot be relied upon by the Court. Contents of the document cannot be proved by merely filing in a court [L.I.C. Of India & Anr vs Ram Pal Singh Bisen on 16 March, 2010 – 2010 AIR (SCW) 1900].
Further, mere admission of a document in evidence does not amount to its proof. Nor, mere marking of exhibit on a document does not dispense with its proof, which is otherwise required to be done in accordance with law [Kaliya vs State of Madhya Pradesh – (2013) 9 SCALE 661].
Use of first information report
The legal position as to the object, value and use of first information report is wells settled. The principal object of the FIR from the point of view of the information is to set the criminal law in motion and from the point of view of the investigating authorities is to obtain information about the alleged criminal activity so as to be able to take suitable steps for tracing and bringing to book the guilty party. The FIR, we may point out, does not constitute substantive evidence though its importance as conveying the earliest information regarding the occurrence cannot be doubted. It can, however, only to used as a previous statement for the purpose of either corroborating its maker u/s 157[1] of the IEA or for contradicting him u/s 145[2] of the Act. It cannot be used for the purpose of corroborating or contradicting other witnesses [Hasib vs. State of Bihar – 1972 Cr.L.J 233(SC) – 3 Judges also see Asharam and anr vs State of M.P – (2007) 6 SCALE 140=(2007) 11 SCC 164=(2008) 1 SCC(Cri) 648=(2007) 4 Supreme 154].
Further study
Cr.P.C., 1973. Notes no.2: A General Introduction (with powers of police)
Cr.P.C., 1973. Notes no.3: General Provisions as to Inquiries and Trials – Part.1
Cr.P.C., 1973. Notes no.4: General Provisions as to Inquiries and Trials – Part.2 (Duty of judge)
Cr.P.C., 1973. Notes no.8: Procedure for registration (Chapter XII – Part.2)
Delay in recording statement of witnesses: Impact
[1] INDIAN EVIDENCE ACT, 1872 – CHAPTER X – OF THE EXAMINATION OF WITNESSES: SECTION 157. FORMER STATEMENTS OF WITNESS MAY BE PROVED TO CORROBORATE LATER TESTIMONY AS TO SAME FACT – In order to corroborate the testimony of a witness, any former statement made by such witness relating to the same fact, at or about the time when the fact took place, or before any authority legally competent to investigate the fact, may be proved.
[2] INDIAN EVIDENCE ACT, 1872 – CHAPTER X – OF THE EXAMINATION OF WITNESSES: section 145. CROSS-EXAMINATION AS TO PREVIOUS STATEMENTS IN WRITING: A witness may be cross examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him, or being proved; but, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him.
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