Showing posts with label F.I.R.. Show all posts
Showing posts with label F.I.R.. Show all posts

27 December 2020

filing of a first information report is not a condition precedent to the exercise of the power under Section 438 of Cr.P.C.

(i) Grant of an order of unconditional anticipatory bail would be “plainly contrary to the very terms of Section 438.” Even though the terms of Section 438(1) confer discretion, Section 438(2) “confers on the court the power to include such conditions in the direction as it may think fit in the light of the facts of the particular case, including the conditions mentioned in clauses (i) to (iv) of that sub-section.”

(ii) Grant of an order under Section 438(1) does not per se hamper investigation of an offence; Section 438(1)(i) and (ii) enjoin that an accused/applicant should co-operate with investigation. Sibbia (supra) also stated that courts can fashion appropriate conditions governing bail, as well. One condition can be that if the police make out a case of likely recovery of objects or discovery of facts under Section 27 (of the Evidence Act, 1872), the accused may be taken into custody. Given that there is no formal method prescribed by Section 46 of the Code if recovery is made during a statement (to the police) and pursuant to the accused volunteering the fact, it would be a case of recovery during “deemed arrest” (Para 19 of Sibbia).

(iii) The accused is not obliged to make out a special case for grant of anticipatory bail; reading an otherwise wide power would fetter the court’s discretion. Whenever an application (for relief under Section 438) is moved, discretion has to be always exercised judiciously, and with caution, having regard to the facts of every case. (Para 21, Sibbia).

(iv) While the power of granting anticipatory bail is not ordinary, at the same time, its use is not confined to exceptional cases (Para 22, Sibbia).

(v) It is not justified to require courts to only grant anticipatory bail in special cases made out by accused, since the power is extraordinary, or that several considerations – spelt out in Section 437- or other considerations, are to be kept in mind. (Para 24-25, Sibbia).

(vi) Overgenerous introduction (or reading into) of constraints on the power to grant anticipatory bail would render it Constitutionally vulnerable. Since fair procedure is part of Article 21, the court should not throw the provision (i.e. Section 438) open to challenge “by reading words in it which are not to be found therein.” (Para 26).

(vii) There is no “inexorable rule” that anticipatory bail cannot be granted unless the applicant is the target of mala fides. There are several relevant considerations to be factored in, by the court, while considering whether to grant or refuse anticipatory bail. Nature and seriousness of the proposed charges, the context of the events likely to lead to the making of the charges, a reasonable possibility of the accused’s presence not being secured during trial; a reasonable apprehension that the witnesses might be tampered with, and “the larger interests of the public or the state” are some of the considerations. A person seeking relief (of anticipatory bail) continues to be a man presumed to be innocent. (Para 31, Sibbia).

(viii) There can be no presumption that any class of accused- i.e. those accused of particular crimes, or those belonging to the poorer sections, are likely to abscond. (Para 32, Sibbia).

(ix) Courts should exercise their discretion while considering applications for anticipatory bail (as they do in the case of bail). It would be unwise to divest or limit their discretion by prescribing “inflexible rules of general application.”. (Para 33, Sibbia).

(x) The apprehension of an applicant, who seeks anticipatory bail (about his imminent or possible arrest) should be based on reasonable grounds, and rooted on objective facts or materials, capable of examination and evaluation, by the court, and not based on vague un-spelt apprehensions. (Para 35, Sibbia).

(xi) The grounds for seeking anticipatory bail should be examined by the High Court or Court of Session, which should not leave the question for decision by the concerned Magistrate. (Para 36, Sibbia).

filing of a first information report is not a condition precedent to the exercise of the power under Section 438

(xii) Filing of FIR is not a condition precedent for exercising power under Section 438; it can be done on a showing of reasonable belief of imminent arrest (of the applicant). (Para 37, Sibbia).

(xiii) Anticipatory bail can be granted even after filing of an FIR- as long as the applicant is not arrested. However, after arrest, an application for anticipatory bail is not maintainable. (Para 38-39, Sibbia).

24 December 2020

Separate F.I.R. can be lodged by every depositor if they are cheated on different dates

Each instance of cheating of every investor/depositor would constitute an independent offence even if it is committed as a part of single conspiracy

    The principal issue herein is with regard to the applicability of Section 220 of the Cr.P.C. as well as the protection provided under Article 20 (3) of the Constitution to a case of inducement, allurement and cheating of a large number of investors/depositors in a criminal conspiracy. The issue posed is whether the offence of cheating - by acceptance of deposits made by individual investors - and there would be multiple such investors, would all constitute the "same transaction" - because the conspiracy or design may be the same or, whether, the act of cheating - by acceptance of deposits made by different investors, would constitute separate transactions - because each act of inducement, allurement and consequential cheating would be unique. The question is whether such transactions could be amalgamated and clubbed together into a single FIR, by showing one investor as the complainant, and the others as the witnesses. Consequently, convicted under one such case would pre-empt prosecution under the other pending cases.[Para No.22]

    Thus even Section 220 does not help the Petitioner as will apply where any one series of acts are so connected together as to form the same transaction and where more than
Separate F.I.R. can be lodged by every depositor if they are cheated on different dates
one offence is committed, there can be a joint trial. In the present case, as is borne out from the record, different people have been alleged to have been defrauded by the Petitioner and the Company and therefore each offence is a distinct one and cannot be regarded as constituting a single series of facts/ transaction.[Para No.31]

22 December 2020

When police refused to register F.I.R. the complainant must approach the Magistrate under Section 156(3) of CrPC and not to the High Court directly

While referring to the judgment of Sudhir Bhaskarrao Tambe (supra), it is observed that if the High Courts entertain such writ petitions seeking registration of FIR, then they will be flooded with such writ petitions and will not be able to do any other work, except dealing with them. It is specifically held that the complainant must avail of his alternate
When police refused to register F.I.R. the complainant must approach the Magistrate under Section 156(3) of CrPC and not to the High Court directly
remedy to approach the Magistrate concerned under section 156(3) of Cr.P.C and if he does so, the Magistrate will ensure, if prima facie he is satisfied, registration of the FIR and also ensure a proper investigation in the matter.
While approving the aforenoted view, the Supreme Court has set aside the direction of the High Court for registration of the FIR and has directed the respondent thereto to approach the court of Magistrate if deem appropriate and necessary. Thus, the law on the registration of FIR is well settled and has been reiterated in the recent judgment of the Supreme Court as noted herein above.[Para No.4]

    In the present case, the petitioner has not approached the concerned Magistrate and has directly approached this Court for the aforesaid prayer.[Para No.5]

    Under the circumstances and in light of the observations made by the Apex Court, the writ petition is rejected since the petitioner has the remedy to approach the approach the concerned Magistrate under section 156(3) of the Cr.PC.[Para No.6]

24 September 2020

If charge sheet is not corroborating with the facts stated in the Motor Vehicle Accident Claim Petition, then the Tribunal should not considered the Claim Petition at all

The entire facts and circumstances raises a doubt in the mind of the Court. As far as the accident claims are concerned, the facts must be unambiguous. Even in case, there is a loss of memory or the claimant due to the injury, unable to provide the correct vehicle number, at least the Police Investigation should reveal the accident occurring time and the place specified as in the Claim Petition. If the charge sheet of the Police is not corroborating with the facts stated in the Claim Petition, then the Tribunal ought not to have considered the Claim Petition at all. In most of the cases, the facts stated in the FIR has been taken for consideration to establish the accident. But, in the present case, even after the investigation and filing of the charge sheet, Police officials deposed that the facts stated in the Claim Petition is mistaken facts. This being the Primafacie case established before the Tribunal, the Tribunal has not appreciated the contradiction in the Claim Petition as well as in the FIR and the Charge sheet filed by the Police. The deposition of Mr.Raja cannot be taken as a valid evidence, in view of the fact that he is an interested witness. However, the FIR and the Charge sheet cannot be neglected and it is to be given due weightage. If the basic facts regarding the accidents are not corroborating with the FIR as well as the charge sheet filed by the Police, then there is every reason to disbelieve the case of the respondent/claimant. This Court is of the considered opinion that many number of false claims are filed, processed and the Tribunals are also awarding compensation in a routine manner. Though the issues were dealt on several occasions by the Hon'ble High Court as well as by the Hon’ble Supreme Court, still such false claims are being noticed. Full Proof System in the matter of accident claims are necessary in order to avoid the bogus and fraudulent claims. This apart, unethical practices in settlement of claims are to be eradicated in order to protect the interest of the genuine accident victims. Undoubtedly, the accident victims are to be provided medical treatment immediately and 'just compensation' is to be granted without any lapse of time. The very purpose and object of the statute is to ensure speedy remedy to the accident victims. However, such things are not happening on account of various corrupt practices in the process of settling the compensation. Courts are also struggling to minimize such irregularities and illegalities. In the process of rectification, Court can make suggestions and issue directions to improve the system, so as to minimize the level of corruption and any other illegal activities in Motor Accident cases. This being the factum and the case of false claims are brought to the notice of the Courts, the Hon'ble High Court and the Hon’ble Supreme Court, on several occasions, issued directions, so as to ensure the genuine claimants receive compensation at the earlier point of time in accordance with law.[Para No.10]

If charge sheet is not corroborating with the facts stated in the Motor Vehicle Accident Claim Petition, then the Tribunal should not considered the Claim Petition at all

    Both the above provisions of the Motor Vehicles Act, 1988 unambiguously reveals that the Police officer, on receipt of information regarding any accident involving death or bodily injured to any person, has to register the F.I.R and conduct investigation and submit a report and such a report is to be communicated to the Claims Tribunal as well as the insurer and the copy should be made available to the owner of the vehicle also. The above statutory provisions is crystal clear that the duty of the Police officer to prepare the Accident Information Report and the detailed accident report and communicate the report to the Tribunal and Insurance company and thereafter, the Claims Tribunal under Section 166(4) of the Act shall treat the report of Accidents forwarded to the Tribunal as an application under Sub-Section (6) of Section 158 for compensation under the Motor Vehicles Act.[Para No.15]

23 July 2020

Writ petition u/A 226 is not maintainable against inaction of police in registration of FIR

Investigation is the function of the police and writ court cannot be converted as an investigation agency.

   Indeed that Section 39 of the Cr.P.C enables the public to set the criminal law in motion, but if the officer in-charge, fails to register an FIR, the Hon'ble Supreme Court as well as this Court, in the above decisions have considered whether the only remedy open to the complainant or the first informant or the member of public to approach the High Court under Article 226 of the Constitution of India and that there is no other remedy provided under any other law, and answered that writ is not the remedy.[Para No.103]

   It is clear from the above provisions in the Cr.P.C., that if the police did not register a case on the basis of a complaint filed by the complainant, then he has got a remedy in the Code of Criminal Procedure, by approaching the jurisdictional Magistrate under Section 156(3) of the Code or even file a private complaint under Section 190 read with Section 200 of the Code, and when a complaint is filed, then the Magistrate has to conduct enquiry under Sections 200 and 202 of the Code, and if the Magistrate is satisfied on the basis of the materials produced before that court that commission of an offence has been prima facie made out, then the Magistrate can take cognizance of the case and issue process to the accused under Section 204 of the Code. If the Magistrate is not satisfied with the materials produced and if he is satisfied that no offence has been made out, then the Magistrate can dismiss the complaint under Section 203 of the Code.[Para No.104]

Writ petition u/A 226 is not maintainable against inaction of police in registration of FIR
   Even if the Station House Officer commits a mistake in arriving at the conclusion that the allegations are not sufficient to attract the ingredients of commission of a cognizable offence, even this Court cannot invoke the power under Article 226 of the Constitution of India, go into the question as to whether non satisfaction by the Station House Officer is proper or not, to issue a writ of mandamus or other writs directing the Station House Officer to register a crime as it is a matter to be considered by the Magistrate under Section 190 read with Section 200 of the Code on a complaint filed by the aggrieved party on account of the inaction on the part of the police in not registering case in such cases. If an enquiry has to be conducted for satisfaction regarding the commission of offence, then it is not proper on the part of the High Court to invoke the power under Article 226 of the Constitution of India and parties must be relegated to resort to their statutory remedy available under the Code in such cases. After lodging the complaint before the concerned police and if the police is not registering the case, the aggrieved person/complainant can approach the Superintendent of Police with written application under Section 154(3) of the Code of Criminal Procedure, and even in a case the Superintendent of Police also does not register an FIR or no proper investigation is done, the aggrieved person can approach the Magistrate concern under Section 156 (3) of Cr.P.C. Without resorting to the procedure as contemplated in the Cr.P.C, the petitioner has approached this Court under Article 226 of the Constitution of India.[Para No.105]

20 May 2020

F.I.R. can not be doubted if name of accused is not mentioned in F.I.R

It is settled law that FIR is not an encyclopedia of facts and it is not expected from a victim to give details of the incident either in the FIR or in the brief history given to the doctors. FIR is not an encyclopedia which is expected to contain all the details of the prosecution case; it may be sufficient if the broad facts of the prosecution case alone appear.[Para No.15]

10 May 2020

Offence of atrocity can not be registered against a member of SC & ST

Can an offence of atrocity under SC ST (Prevention of atrocity) Act be registered against another person belonging to SC ST ? 
  The person which is making such allegations or utterances should not be a member of either Scheduled Caste or a Scheduled Tribe, as per T. Toranath & Anr. v. State of A.P. & Ors., reported in 1999 (1) Crimes 188 That means, the offence under these can be lodged against those persons only who are not being a member of a Scheduled Caste or a Scheduled Tribes.[Para No.12]

01 May 2020

Subsequent complaint can be clubbed with existing F.I.R.

F.I.R. made by the father of victim girl that she might have been kidnapped/abducted. After registration of FIR, complaint made by the victim girl about her sexual exploitation with detail incident.

   Can such complaint be clubbed with existing FIR?

   If the FIR lodged by her father is the skeleton, victim's complaint is the flesh and blood to it.

   If the investigating agency had taken a decision to club the subsequent complaint with earlier FIR it cannot be said that the investigating agency violated any provision of law. In fact, such clubbing was legally justified. 

 It is well settled that a first information report need not necessarily be lodged by the victim of a sexual offence. Any person having information of the offence can report. It is equally well settled that an FIR need not be an encyclopedia of all the facts and allegations describing an offence. The object of lodging a first information report is to report an offence, cognizable in nature, so that the matter is investigated and a police report is submitted in court to enable it to take cognizance and proceed against the accused.

19 April 2020

Can registration of F.I.R. be denied if civil proceeding is pending?

FIR-in-civil-disputeA civil dispute should not be given the colour of a criminal offence, and at the same time, mere pendency of the civil proceeding is not a good ground and justification to not register and investigate an FIR if a criminal offence has been committed.[Para No.9]

Adv. Jainodin's Legal Blog