5]

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can be considered and used as FIR, if the same is recorded before the commencement of the investigation, but not otherwise. Simply because the statement was the first one recorded by the police in point of time, would not make it FIR if such a statement was recorded after the commencement of the investigation.29 As will be seen later, the evidentiary value of FIR is far greater than that of any other statement recorded by the police during the course of the investigation. Therefore the question, whether a statement is FIR or is one made after the FDR. assumes importance. Considering the relative importance of FIR, the Code contains adequate safeguards to ensure its accuracy. Thus Section 154 requires the FIR to be recorded verbatim in the very language of the informant (as far as possible), to be read over and explained to him, and to be signed by the informant. The idea behind reading over the information reduced into writing and obtaining signatures of the first informant thereon are intended to ensure that what has been reduced into writing is a true and faithful version of the information given to the officer in charge of the police station.30 The section also makes it obligatory that a copy of the FIR is given to the informant. Section 157 further requires the investigating officer to send the FIR at once to the magistrate taking cognizance on police report. Hence, though subsequent interpolations in the FIR are not unknown, nevertheless the aforesaid provisions to a large extent ensure the accuracy of the FIR.31 83. Evidentiary value of FIR..A first information report means the information, by whomsoever given, to the officer in charge of ?a police station in relation to the commission of a cognizable offence and which is first in point of time and on the strength of which the investigation into that offence is commenced.32 It is settled law that a first information report is not substantive evidence, that is to say, it is not evidence of the facts which it mentions.33 However, its importance as conveying the earliest information regarding the occurrence cannot be doubted.34

29, Somappa Vamanappa Madar v. State o f Mysore, (1980) 1 SCC 479' 1979 SCC (Cri) 910: 1979 Cri LJ 1358. 30, Tehal Singh v. State o f Rajasthan, 1989 Cri LJ 1350 (Raj). 31, See 41st Report, Vol, 1, Note o f dissent, p. 376, para 12, 32, State o f Bombay v, Rusy Mistry, AIR 1960 SC 391: 1960 Cri U 532; Gurusami Naidu v, Guruswami Naidu, AIR 1951 Mad 812,813: 1951 Cri LJ 857. 33, State o f Assam v, U,N. Rajkhowa, 1975 Cri LJ 354, 378 (Gau); Damodarprasad Chandrikaprasad v. State o f Maharashtra, (1972) 1 SCC 107: 1972 SCC (Cri) 110, 114: 1972 Cri LJ 451.453-454; Pritam Singh v. State o f Punjab, 1977 Cri LJ 51 (P&H); tee also Kapil Singh v. State o f Bihar, 1991 Cri LJ 1248 (Pat). 34, Sit. Haslb v. State o f Bihar, (1972) 4 SCC 773: 1972 Cri LJ 233, 236.

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Considering Sections 157 and 145 of the Evidence Act, it is quite obvious that the FIR cannot be used for the purpose of corroborating or contradicting any witness other than the one lodging the FIR.45 If the FIR is given to the police by the accused himself, it cannot possibly be used either for corroboration or contradiction. The accused cannot be the prosecution witness, and he would very rarely offer himself to be a defence witness under Section 315 of the Code. Moreover if the FIR is of a confessional nature it cannot be proved against the accused-informant as it would be hit by Section 25 of the Evidence Act.46 That section provides that no confession made to a police officer shall be proved as against a person accused of any offence . If the FIR given by the accused is non confessional, it may be admissible in evidence against the accused as an admission under Section 21 of the Evidence Act or as showing his conduct under Section 8 of the Evidence Act.47 In certain cases the FIR can be used under Section 32(1) of the Evidence Act or under Section 8 of the Evidence Act as to the cause of the informants death or as a part of the informants conduct.48 8.4. Role of police as to non-cognizable cases.Generally speaking, non-cognizable offences are more or less considered as private criminal wrongs. Therefore the investigation into such cases is not the responsibility of the police unless otherwise ordered by a magistrate.49 The aggrieved private individual can, however, approach a magistrate with a complaint and the magistrate may take necessary steps for the trial of the offender. |

(a) Information to the police as to non-cognizable offence.If any person gives information to an officer in charge of a police station of the commission of a non-cognizable offence, the officer shall enter or cause to be entered the substance of the information in a book prescribed for this purpose. The officer shall then refer the informant to the magistrate [Section 155(1)]. The police officer has no further duty unless he is ordered by a magistrate to investigate the case.

(b) Powers o f the police to investigate a non-cognizable case depend on Magistrates order.The primary rule is that no police officer shaU
45. Sk. Hasib v. State o f Bihar, (1972) 4 SCC 773: 1972 Cri LJ 233, 236. 46. NlsarAli v. State o f U.P., AIR 1957 SC 366: 1957 Cri LJ 550; Aghnoo Nagesia v. State o f Bihar, AIR 1966 SC 119: 1966 Cri LJ 100. 47. Aghnoo Nagesia v, State o f Bihar, supra note 41; V. Thomas v. State o f Kerala, 1974 Cri L J 849, 854 (Ker); Faddi v. State o f M.P., AIR 1964 SC 1850: 1964 (2) Cri LJ 744; Bheru Singh v. State o f Rajasthan, (1994) 2 SCC 467: 1994 SCC (Cri) 555. 48. Damodarprasad Chandrikaprasad v. Stale o f Maharashtra, (1972) 1 SCC 107: 1972 SCC (Cri) 110: 1972 Cri LJ 451; Kantilal Shivabhai Thakkar v. State o f Gujarat, (1990) Cri U 2500 (Guj), See also Bheru Singh v. State o f Rajasthan, (1994) 2 SCC 467. 49. See earlier discussion in para 4.3.

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investigate a non-cognizable case without the order o f a magistrate having power to try such cuse or commit the case for triul [Section 155(2)]. The Code does not expressly give power to a magistrate to order investigation into a non-cognizable case. Such a power, however, cun be implied from the wording of Section 155(2). The Code does not give any direction or guidance to the magistrates as to how and in whut circumstances the power to order investigation is to be exercised. Certainly the power is not to be exercised arbitrarily or cupriciously. Probably the magistrate is to consider the totulity of the circumstances and consider whether it would not be just and proper to ask the police to investigate the non-cognizuble cuse. If a magistrate, who is not empowered, erroneously orders in good faith an investigation under Section 155(2), the proceedings shall not be set uside merely on the ground o f his not being so empowered [see Section 460(/?)].'|S If a police officer investigates a non-cognizable case without the order of a magistrate, such a non-conformunce to the mandatory provisions laid down in Section 155(2) may be a material one vitiating the ultimate proceedings and may also be considered as violative o f Article 21 o f the Constitution.50 However, whether the non-compliance with Section 155(2) is material one vitiating the proceedings depends upon the facts and circumstances in each case. When such a breach is brought to the notice o f the court at an early stage of the trial the court will have to consider the nature and extent of the violation and pass appropriate orders for such re investigation as may be called for. However, generally speaking, if such a breach is not noticed at the early stage and the trial is concluded the defect or illegality of investigation would not vitiate trial, unless it caused prejudice to the accused and resulted in miscarriage o f justice in terms o f Section 465.51 2 5 (c) A case consisting o f both cognizable and non-cognizable offences : In a situation where a criminal case consists o f both cognizable and noncognizable offences, a question may arise as to whether the case is to be treated as a cognizable case or a non-cognizable case. To meet such a situation Section 155(4) provides that where a case relates to two or more offences o f which at least one is cognizable, the case shall be deemed to be a cognizable case, notwithstanding that the other offences are noncognizable*. A case alleging commission of offences under Sections 494 and 498-A IPC could be investigated by the police, though offence under Section 494 is a non-cognizable offence, by virtue o f Section 155(4).5*

50. Subodh Singh v. Slam, 1974 Cri 185 (Cal); see Kunhmnuhutntned v, Stair o f Kerala, 1981 Cri LJ 356 (Ker). 51. For the text of S. 465, see paru 7.9 See H.N, Klshbud v. State o f Delhi, AIR 1955 SC 196: 1955 Cri LJ 526; P. Kunhuniuhammed v. Stum o f Kerala, 1981 Cri U 356 (Ker), 52. State o f Orissa v. Sharat Chandra Saha, (1996) 6 SCC 435: 1996 SCC (Cri) 1387.

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