Implications of Fallacious FIR on Criminal Legal System
By Ananya Garg & Kushagra Goyal
ABSTRACT
The condition sine qua non for commencement of any criminal proceeding is the intimation about the commission of alleged offence to the police. FIR is the most primitive constituent of the case of prosecution and it must be set forth the Judge to contemplate the veracity or fallaciousness of the alleged accusations. Such information disclosed to the police is recorded in the form of a written statement under Section 154 of the Code of Criminal Procedure, 1973 which is termed as the ‘First Information Report’. The paper aims to scrutinize the legal outlook of Section 154 of The Code of Criminal Procedure, 1973 with regard to the notion of FIR and an exertion to reconnoiter the legal provisions with respect to lodging Doubtful FIR i.e. false FIR or registration of subsequent FIR with the motive of suppressing the initial FIR. Furthermore, the author will be accentuating on the evidentiary value of the FIR when the credibility of the information is under question, thereon the austere legal provisions to deter the reprobates who instigate contrived criminal proceedings. Also, the researchers have made an endeavor to divulge the idiosyncratic inherent-power of the High Court provided under Section 482 of the code of Criminal Procedure, 1973 which authorizes the court to quell either the Doubtful FIR or the whole criminal proceeding. This articles delves into the intricacies of FIR with the objective of answering three major questions namely, (i) What is an FIR?, (ii) What is a Doubtful FIR? and (iii) What are the consequences of Doubtful FIRs?
INTRODUCTION
All the countries have criminal laws to deal with the various forms of crimes. The most important facet of it is the procedure which has to be adhered to in order to stimulate substantive laws. In India, the major substantive law is the Indian Penal Code, 1860 and the analogous procedural law can be found in the Code of Criminal Procedure, 1973.
For any investigation to commence, it is quite palpable that the police needs to be acquainted with the offence that has been committed. This is conceivable only when someone apprises the police regarding the details of the crime committed. This is what is often titled as the ‘First Information Report (FIR)’ and the same has been contemplated under Section 154 of the Code of Criminal Procedure, 1973. The rudimentary prerequisites as per Section 154 are that, in case of a “cognizable offence”, if information is furnished to an officer-in-charge of a police station verbally, then it has to be penned down by such officer and after reciting out the information and getting it signed by him/her, it is to be entered in the diary/book ordained for this purpose. Also, a replica of the report is to be handed over to the informant under clause (2) of Section 154 of CrPC. The information of non-cognizable offence can be communicated under Section 155 of CrPC. The police officer can initiate the investigation in the reported offence after such information is received under Sections 156 and 157 of the CrPC.
However, sometimes, Doubtful FIRs are filed by people. Such FIRs are the subject matter of this project and will be discussed in great detail during the course of this project. What are Doubtful FIRs, what is the course of action once the same is lodged and if there are plausible solutions available?
The 192nd Law Commission Report¹ under the chairmanship of Justice M. Jagganadha Rao was solely congregated for the prevention of vexatious litigations. It prominently insinuated that the Parliament should bring forward a Central Legislation to curb vexatious litigation. The former State of Madras had enacted the Madras Vexatious Litigation (Prevention) Act, 1949, and in line with former State of Madras, the Government of Maharashtra also enacted a parallel legislation called the Maharashtra Vexatious Litigation (Prevention) Act, 1971, but similar enactments have not been legislated in other States. The Act legislated in the State of Madras acquired its validity from the Statute of England and it was acknowledged as a law in the case of Grepe v. Loam². The validity of the above-mentioned Madras Act of 1949 was sustained by the Supreme Court of India in Prabhakar Rao N. Mawle v. State of Andhra Pradesh³ and the Court carved out the advantages of having such a law.
WHAT IS AN FIR?
First Information Report or an FIR is a document transcribed by the police (in India, Pakistan and Japan) when they acquire information about the commission of a cognizable offence. It is the preliminary disclosure of the offence which is communicated to the police after its commission. Therefore it has been titled as the First Information Report. Conventionally, it is a complaint lodged to the police by the victim of a cognizable offence or by someone on his/her behalf. FIR can be registered either verbally or in written form to the police. Even an information providing commission of an offence through a telephone call can also be treated as a basis for an FIR.
The acronym ‘FIR’ is the abbreviated form of First Information Report. “First Information” or “First Information Report” is not expressly provided in The Code of Criminal Procedure, 1973. Exegesis of Section 154(1) of CrPC has been interpreted to elucidate on the legal provisions for lodging an FIR. The Hon’ble Supreme Court in Soma Bhai v. State of Gujarat observed, “It is the information given to a police officer in the form of a complaint or accusation regarding the commission of or suspected commission of a cognizable offence. FIR is the information which is given to the police first in point of time on the basis of which the police may select and record as First Information.”⁴
It is only after the registration of an FIR that a police officer can initiate investigation of the case. Anyone who is acquainted with the commission of the cognizable offence can lodge an FIR. It is not obligatory that only the victim of the crime can file an FIR. A police officer who is conversant with the commission of a cognizable offence can file an FIR himself/herself.⁵
The main object of an FIR from the perspective of the informant is to set the criminal law into motion and from the viewpoint of the investigating authorities, it is to procure information about the alleged criminal activity enabling them to take apposite steps to get hold of the trails of the accused. FIR is the preliminary step towards criminal justice system that leads to the trial and punishment of the delinquent. It is also the most imperative and supportive evidence on which the entire foundation of the prosecution of the case is built up.
It has been asserted that Section 154 of the Code of Criminal Procedure, 1973 has three-fold objective, that is⁶:
· Firstly, to acquaint the District Magistrate and the District Superintendent of Police with the information of the alleged offence, who are in-charge for the law and order of that district;
· Secondly, to apprise the concerned judicial officers about the material evidences which lays the foundation of the investigation ;
· Thirdly, to protect the information from subsequent manipulation and aggrandizement.
The following are the essential ingredients of an FIR⁷:
· It must comprise information pertaining to the commission of a cognizable offence.
· It must be conveyed to an officer-in-charge of the police station.
· It must be transcribed, if given verbally.
· It should be appended with the signature of the informant (refusal to sign the report is an offence under section 180 of IPC).
· It should be narrated to the informant.
· The crux of the information should be recorded in the Station General Diary.
· A replica should be given forthwith free of cost to the informer.
DOUBTFUL FIRs
A Doubtful FIR can be taken in the following two conditions⁸:
Ø Filing a false FIR
Ø Original FIR suppressed by giving another FIR
I. Filing a False FIR
A false FIR can be described as one that has been maliciously and wrongfully fabricated to instigate the procedure of investigation against a certain individual. Usually, it can be said that FIRs are uncorroborated and are made to fallaciously implicate a person for some offence. The law in India is extremely strict against such abuse of procedure established to maintain the criminal justice system.
In Shashikant v. Central Bureau of Investigation & Ors.⁹ the Supreme Court stated that preliminary inquiry is indispensible if the information has been filed on basis of anonymity. When an anonymous complaint is obtained, no investigating officer would set off investigation procedure instantaneously thereupon. It may for beneficial reasons carry out a preliminary enquiry to find out the verity or otherwise of the allegations enclosed therein. Once an FIR is lodged, the officer in charge of the police station is statutorily liable to report to the Magistrate, who is authorized to take cognizance of the matter. However, the proviso to Section 157(1) of The Code of Criminal Procedure, 1973 authorizes the Investigation Officer not to conduct any reconnaissance when it appears to him that there are no adequate grounds for entering into an investigation.
There are several provisions in the Indian Penal Code,1860 that provide a remedy against false information. Some of them have been highlighted here along with other probable remedies:
a. Section 211 of the Indian Penal Code, 1860
Section 211 of the Indian Penal Code provides for the substantive law in each case such abuse occurs. Section 211 reads as:
An offence of instigating or causing to be initiated in any criminal proceeding or falsely incriminating any person of having perpetrated an offence even when there is no merited or lawful ground for such proceeding to the knowledge of the person initiating or causing the institution of the criminal proceedings.¹⁰ The penalty attributed for such an offence can be extended up to two years, or fine, or both and if the false allegations are made regarding an offence punishable with death or life imprisonment, then in such cases the punishment may extend to seven years or more along with fine.
In the case of Queen v. Subbanna Gaundan¹¹ the Madras High Court held that in order to constitute the offence of false charge envisaged in Section 211 of IPC, it is not compulsory that the charges should be held before a Magistrate. The Court also held that the police cannot refuse to file a case on the pretext that such information is false, before conducting preliminary investigation.
The prosecution must provide substantiated evidence to affirm any intention on the part of the accused to cause ‘injury’ which according to Section 44 of IPC denotes any harm whatever unlawfully caused to any person, in body, mind, repute or property. The accused must either initiate any criminal proceeding against any person or cause the same to be initiated. If such is not the case, then he must fallaciously charge any person for having committed a felony. In all cases it must be ascertained that the accused had acquaintance that there was no just or lawful ground for such proceeding or charge, as the case may be, against that person against whom false proceedings were initiated. If the criminal proceedings are instigated on spurious allegations of a capital offence or an offence carrying a punishment of life imprisonment or, imprisonment with seven years or more, the penalization is stern.
The expression ‘false charges’ must be understood as false accusations before a competent authority. The Supreme Court has observed in Santokh Singh v. Izhar Hussain¹², that this expression does not imply giving false evidence as a prosecution witness against an accused during the passage of a criminal trial. It refers to initial accusation seeking to put in action the machinery of criminal investigation and not then seeking to prove the false charge framed in that trial. The words ‘false charges’ should be read in line with the words ‘institution of criminal proceeding’.
In Balak Ram v. Emperor¹³ it was held that a person who sets the criminal law in motion by making false allegations to the police, of a cognizable offence institutes criminal proceedings within the meaning of Section 211 of the Indian Penal Code 1860, which includes the information given to the police under Section 154 of CrPC as well as the complaint which is made directly to a magistrate under Section 200 of CrPC.
b. Section 182 of the Indian Penal Code, 1860
Section 182 of the Indian Penal Code, 1860 talks of the specific circumstance wherein a public servant is falsely accused. Section 182 is read as under:
Whoever knowingly furnishes any fallacious information to any public servant, or which he supposes to be false, with the intent to cause such public servant:
i. to act or omit from acting based on such information, which the public servant ought not to do or omit if true information was communicated to him, or;
ii. to induce such officer to exercise his lawful authority to cause injury or exasperation to any person, shall be liable to be punished with imprisonment of either description up-till six months or fine up to one thousand rupees, or both
It has been acknowledged by the Calcutta High Court in Pasupati Banerji v. King¹⁴ that in order to provoke the essentials of Section 182 of the IPC, it must be ascertained that the person who furnished the information to a public servant had the knowledge or the suspicion that the information provided was incorrect and the act was done with the intention to cause injury or annoyance to any person.
The Punjab and Haryana High Court has further stated in the case of Sukhdeo Singh v. State¹⁵ that in order to constitute an offence under Section 182 IPC, it is necessary to establish that the accused had the knowledge that the information he provided was false. It will not suffice if the person only had apprehensions to consider it to be false; what is necessary is that the person must have certain information or belief that it was false.
c. Section 177 of the Indian Penal Code, 1860
Section 177 of the IPC comprises penal provisions for the persons providing false information. This Section provides that whoever, is lawfully obligated to convey any information on any matter to a public servant, as such, furnishes as true, information which he knows to be fallacious or apprehends it to be false, shall be liable to be punished with simple imprisonment for a term of six months or up to fine of one thousand rupees, or both; or, if he provides false information regarding the occurrence of an offence or, to avert the commission of an offence, or comprehending an offender, which he is duty bound to provide then he shall be liable to be punished with imprisonment of either description up to two years or, fine or, both.
It is evident from the above provision that registering a fallacious FIR is considered a grave offence and is hence strongly castigated and penalized.
d. Malicious Prosecution
Alternatively, remedy obtainable against a person filing a false criminal complaint is filing a civil suit for ‘malicious prosecution’.
In Maiz v. Rosen¹⁶, it was perceived that if a person apprises to the police with a depiction which he knows to be fallacious, it would be a concrete evidence of malevolence, necessary for a successful action for malicious prosecution.
In a suit for malicious prosecution damages can be claimed under three heads:
· damage to reputation
· damage to persona
· damage to property
It was affirmed in R.K. Soni v. S. Singhara Singh¹⁷ that in a lawsuit for malicious prosecution, the plaintiff can assert for all legitimate expenses incurred by him in defending himself in the criminal proceedings.
e. Vexation Litigation Act
In 2016, a bill was proposed in the Parliament, the Vexatious Litigation (Prevention) Bill, 2016 to prevent the institution or continuance of vexatious proceedings, in civil and criminal matters in the High Courts and Courts subordinate thereto and for matters connected therewith and supplementary thereto. The notion behind the legislation was that it was noticed that many persons exploit the process of law and indulge in the habitual and intentional filing of frivolous and vexatious civil or criminal proceedings to pester other persons without any reasonable ground.
The Bill provides that the Advocate General will submit an application in the High Court to declare a person “a vexatious litigant” by targeting out the fact that he/she has recurrently and arbitrarily initiated vexatious proceedings, either against the certain individual or against distinct persons. If the High Court is satiated that the complaint has credence, it will hear the person before proclaiming him/her a “vexatious litigant”. If he/she cannot manage to pay for an advocate, the court will arrange for one.
Repercussions after a person is declared a “vexatious litigant”?
The court will issue a mandate barring him/her from initiating any civil or criminal proceeding in any court of the State without permission from either the High court or the District and Sessions Court. Approval will be given only after the Court has satiated itself that the intended proceedings are not for exploitation of the legal process. The “vexatious litigant” will not be entailed to procure leave of the court before filing a writ petition for habeas corpus, or a bail application.
f. Compensation to the accused
“Penal law of ancient communities is not the law of crimes; it is the law of wrongs. The person injured proceeds against the wrong done by an ordinary civil action and recovers compensation in the shape of money damages if he succeeds” — Sir Henry Maine¹⁸
Sections 250 and 358 of the Code of Criminal procedure, 1973 bestows the Magistrate with the power to award compensation to an accused against whom an accusation has been made and who has been arrested without adequate grounds. In accordance with Section 250 of the Code of Criminal Procedure, 1973 the powers are exercisable in cases triable by him and when he has heard the case and has come to the conclusion that accusation has been made without reasonable grounds. Under Section 358 of the Code, he can award compensation to a person for causing his arrest without sufficient grounds when the Magistrate has heard the case.
In conformity with the recommendations of the 41st Law Commission¹⁹, the Code of Criminal Procedure, 1898 report, an all-encompassing provision to provide reparation to the victims of crime has been provided in Section 357 of the Code of Criminal Procedure. Section 357 of the Criminal Code under its sub-section (4) empowers the appellate court comprehensive of the High Court and the Court of Sessions to accolade compensation to the persons affected and also for defraying the expenses sustained appositely in prosecution from the fine amount to be paid by the convicted person.
g. Quashing the Complaint under Section 482 of CrPC
Section 482 of the Criminal Procedure Code, 1973 confers the High Court with the inherent power to intercede in criminal proceedings in order to prevent the abuse of the process of the court and in order to secure the ends of justice. If a false complaint is filed against a person, he/she can approach the High court by filing a petition under Section 482 of the Code of Criminal Procedure, 1973 seeking to quash the false proceedings.
The Supreme Court in State of Haryana v. Bhajan Lal²⁰, inter alia stated that the criminal complaint can be quashed when the complaint is manifestly attended with the mala fide intention or where the proceedings is maliciously instituted with an ulterior motive for wreaking vengeance on the accused person and with a view to spite him due to private and personal grudge.
The High Courts are thus empowered to quash a criminal complaint on petition under Section 482 of the Code of Criminal Procedure, 1973 if the complaint is instituted with a mala fide intent to harass the petitioner or if a civil suit has been give the shape of a criminal offence in order to unnecessarily harass the petitioner.
II. Original FIR suppressed by giving another FIR
Sometimes, an FIR recorded may be embellished or altered by registering another FIR and suppressing the preceding FIR. In many cases, the latter might be even faux. Similar penalties as mentioned above would follow. Although, it is prudent to mention here that in case the police are directly involved in such alteration, and some material gain is obtained by the police in exchange of altering the FIR, then elements of Prevention of Corruption Act, 1988 and Section 197 of the Code of Criminal Procedure, 1973 as mentioned below would also be attracted.
Section 197 of the Code Of Criminal Procedure, 1973 provides immunity to any person who is a judge or a magistrate or a public servant and is acting in the course of his official duty and is alleged to have done or omitted to have done an act, shall not be discharged of his duties except with the prior sanction of the government and no court shall take cognizance of the same without prior sanction of the government.
It has been seen that many influential people who have reports of offences committed by them may have them altered, removed. This affects the moral fiber of the society and defeats the purpose of the criminal justice system. Such people must be dealt with strictly and the police officials helping such people must also be adequately punished.
III. Effect of Doubtful FIRs
As seen above, Doubtful FIRs can cause much harm to the reputation of innocent people and/or dangerously affect the criminal justice system due to undue corruption. It has been observed by the Hon’ble Supreme Court in the case of Joginder Kumar v. State of Uttar Pradesh²¹ that the action on part of the police due to the institution of a false FIR can cause incalculable harm to the reputation and self-esteem of a person.
Such FIRs not only harm the reputation and self-esteem of the person against whom they are instituted but also adversely impact the criminal justice system. Such complaints lead to futile investigations and wastage the time for the both the police and the courts. Our Courts are already over-burdened with cases, most of which are genuine ones; however, such false FIRs add up to this burden and causes delay by taking up the precious time of the courts and the police.
It is, therefore, in the interest of justice that strict substantive laws have been put in place to check the malafide institution of false FIRs. It must be ensured that those who institute such FIRs are adequately punished.
CONCLUSION
FIR is an extremely vital report which sets the criminal investigation in motion. Also, being the earliest report, it holds paramount importance as it is the foundation stone of the structure of the prosecution’s case. An FIR is an essential piece of evidence in any criminal trial either for corroborating evidence or for contradicting witnesses. Therefore, it becomes obligatory that such report be recorded in all circumstances, especially where the person has come to the police station to lodge an FIR against a particular crime. But, a clear reading of Section 154 of the Code of Criminal Procedure,1973 does not put any mandate on the Police Officer to lodge an FIR. The provision merely stops by saying that in case of any refusal on the part of the officer in charge, the informant may report the matter to the Superintendent of Police who will then take necessary actions. Courts have observed in the case of Vijai Kumar Verma v. State of Uttar Pradesh²² and Amravati v. State of Uttar Pradesh²³. that in recent times, a lot of false FIRs are being lodged under Sec. 498A or Section 3 or 4 of the Dowry Prohibition Act, 1961.
It is hence, an utmost necessity that Doubtful FIRs must be effectively dealt with and the people lodging such FIRs should be penalized. As has been already discussed, Indian criminal law provides for the mechanism of punishing these people, and the same needs to be implemented strictly.
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[1] Law Com No.192, 2005.
[2](1879) 39 ChD 168.
[3] A.I.R. 1965 S.C. 1827.
[4] A.I.R. 1975 S.C. 1453.
[5] K.N. Chandrashekharan Pillai, R.V. Kelkar’s Criminal Procedure 128 (6thedn, Eastern Book Company, Lucknow 214).
[6] Y.V Chandrachud, J. (revd.),Ratanlal&Dhirajlal’s The Code of Criminal Procedure(15thedn, Wadhwa& Co., New Delhi 1998).
[7] Vol. 1, M.R. Mallick (ed.), B.B. Mitra on The Code of Criminal Procedure, 1973 (16thedn, Kamal Law House, Calcutta 1987).
[8] P S Bawa, Krishnamurti’s Police Diaries 54 (7thedn., LexisNexis Butterworths 2002).
[9](2007)1 SCC 630.
[10] Perumal v. Janaki, (2014) 5 S.C.C. 377.
[11](1883) ILR 7 Mad 197.
[12] 1974 SCR (1) 78.
[13]A.I.R 1942 Oudh 100.
[14] A.I.R. 1950 Cal. 97.
[15] 63 Punj. L.R. 566.
[16] (1966) 1 W.L.R 1008.
[17] A.I.R. 1992 Del. 264.
[18] Henry Maine, Ancient Law 370 (1901).
[19] Law Com №41, 1969.
[20] 1992 Supp. (1) SCC 335.
[21] A.I.R. 1994 S.C. 1349.
[22] 2002 Cri. L.J. 4561.
[23] 2004 Cri.L.J. 755.
The authors are year III B.A. LL.B(Hons.) students at the Amity Law School, Delhi.
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