Monday, April 14, 2008

FIR-[FIRST INFORMATION REPORT]

FIRST INFORMATION REPORT[FIR]

First Information Report or the First Information Report is information which is given first in the point of time. Obviously, there cannot be more than one FIR in one case; however there may be many the victims in one case. In a FIR, there is two main conditions to be satisfied before an information could be treated as FIR, which is it must be an information and secondly it must relate to a cognizable offence on the face of it and not merely in the light of the subsequent events. Besides that, a FIR, in other words must be in the nature of a complaint or accusation with the object of getting the law in motion, where it is more to an earliest report made to the police officer with a view to his taking action in the matter or an information given by an informant on which the investigation is commenced. The FIR will be treated by any information given or phone in respect of a cognizable offence to a police officer in charge of a police station. Apart from that, we also can quote some specific sections under the Evidence Act about FIR, where it is stated in Section 74 that, documents which can be entertained as a public documents are include of any documents forming the acts or records of the acts of sovereign authority, official bodies, public officers, legislative, judicial, executive and public records which kept in Malaysia of private documents.

We also can refer to the Criminal Procedure Code under Section 107 about the information of offence where in subsection (1) stated that ‘every information relating to the commission of an offence if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction and be read over to the informant’ and in subsection (2) stated that ‘every such information shall be entered in a book to be kept by the officer, who shall append to such entry the date and hour on which that information was given, and whether given in writing or reduced to writing as aforesaid shall be signed by the person giving it’. Referring to Section 108A of the same act, it also mentions that the information reduced to writing shall be admitted as evidence of the contents of the original and of the time, place and manner in which the information was so recorded. The FIR can be lodged at any police station, where the information should be to the Officer in Charge of the police station, or to the Superior Police Officers, or even to the Chief Minister of the State. Besides that, the person who can lodge FIR is not necessary by an eyewitness; it also can be lodged by the accused, or by the Station House Officer or even by the General Power Of Attorney.

(a) Whether such FIR is a condition precedent to the commencement of criminal investigations?

The phrase ‘first information report’ refers to the initial information relating to the commission of an offence given to the police under Section 107 of the Criminal Procedure Code. The first information report is usually made very early after the occurrence offence and forms the basis of the case. There is no requirement that the initial information be given by a person who has personal knowledge of the incident. The first information report is also the basis upon which the police will commence their investigation. In the course of such investigation, the police will be empowered to require the attendance of witnesses, examine witnesses, record statements under caution, to produce the accused before a magistrate to have his confession recorded by the magistrate, conduct searches, apply for a remand order, and require a bond for the appearance of the complainant and witness.

The first information report is not however a condition precedent to the starting of criminal investigations. Section 107 also requires every information relating to the commission of an offence, if given orally to an officer in charge of a police st6ation, to be reduced into writing by the officer or under his direction and to be read over to the informant. The police will normally record the information first and then proceed to investigate the matter in order to avoid any confusion later. However if the police officer comes to know of an offence while on beat or while the offence is being committed, he should not waste time in recording the information and thereby give the accused a chance to dispose of the incriminating articles or get away with the fruits of his crime. Indeed the receipt and recording of an information report is not a condition precedent to the setting in motion of a criminal investigation, and neither is it a condition precedent to the setting in motion of a criminal prosecution.

FIR is strictly no doubt is a early record and the first version of the alleged criminal activity conveyed to the police officer with the object of putting the police in motion in order to investigate, so this means it is an important and valuable document. It also merely marks the beginning of the investigations into the reported offence and its value must accordingly depend on the circumstances of each case including the nature of crime, the position of the informant and the opportunity he had of witnessing the whole or part of the commission of the alleged offence. Besides that FIR should not be treated as the last word to commence a criminal investigation because at is an important and valuable piece of evidence which sets the motion in the machinery of law for investigation of a case, although it is not expected to contain all the details. We also can relate this aspect by referring to cases of PP v Foong Chee Cheong, where Gill J stated that FIR can never be treated as piece of substantive evidence and the fact that no first information report was made is not in itself a ground for throwing out a case. The powers of the police to investigate do not depend solely on Chapter XIII of the Criminal Procedure Code and also acquitted that the accused without calling for his defence on the ground, inter alia, that since the information of the informant had not been reduced into writing in the first instance, the police had no power to act and that consequently the arrest of the accused was void in law. Another case to be related is the case of Khwaja Nazir Ahmad, Privy Council Justice held that FIR is not a main condition to the commencement of criminal investigations but it was given affirmation to sight the first information of an criminal offence and note the statement before it meant to be forgotten or exaggerated.

So to conclude, FIR is not a condition precedent to the commencement of investigations because it only creates the basic aspect that is the affirmation to state an information of an offence into a writing statement and start to investigate about the crime where in other words, making it easy to the police to start to investigate because there is a content about the time, place, and manner in which the information was so recorded.

(b) Discuss whether any evidentiary value to be attached to such FIR ?

The first information report is not to be treated as a substantive piece of evidence. The first information report can be only used for the purpose of corroboration and contradiction. In the case of Autar Singh v Emperor the Indian court held that the first information is a document of great importance and in practice it is always and very rightly produced and proved in criminal trials. But it is not a piece of substantive evidence and it can be used only as a previous statement admissible to corroborate or contradict the author of it. Besides that the first information report is also admissible for corroboration under Section 157 of Evidence Act 1950 where it provides that ‘ in order to corroborate the testimony of the witness, any formal statement made by him whether written or verbal, on oath, or in ordinary conversation, relating to the same fact at or about the time and the fact to place, or before any authority legally competent to be investigate the fact, may be proved. Although the first information report may be admitted under Section 157 for the purposes of corroboration, it constitutes a very weak type of corroborative evidence. It appears that Section 157 of the Evidence Act 1950 is concerned with the consistency of the witness rather than the type of corroborative evidence since it tends to defeat the object of the rule that a person cannot corroborate himself. We can refer in the case of Karthiyayani & Anor v Lee Leong Sin & Anor where the Federal Court held that it is settle law that a person cannot corroborate himself but it would appear that Section 157 of the Evidence Act 1950 enable a person to corroborate his testimony by his previous statement. The rule is based on the assumption that consistency of utterance is a ground for belief rule in the witness truthfulness just as inconsistency is a ground for disbelieving him. So, the previous statement made under Section 157 is admissible as corroboration, it constitutes a very weak type of corroborative evidence as it tends to defeat the object of the rule that a person cannot corroborate himself.

In other words, FIR is not a substantive evidence where before it can be used its scribe or the information must be examine in the court. Hence, by mere mention of the name of an accused in FIR or number of vehicle does not connect such person or vehicle with the crime. It can be related in the case of Dhirendra Nath v State, the Calcutta High Court while emphasising the value of the FIR observed as follows that the FIR is at the time regarded as a part of the res ges tae and on that basis it is sometimes used, not merely for the purpose of corroborating or contradicting the person who lodged it but also for the purpose of lending some assurance to or negativing the general account as given by other witnesses. Apart from that we can also refer to the case of The State v Makund Harijan & Anor, the Orrisa High Court ‘no doubt FIR can strictly speaking, be used only to corroborate or contradict the maker of it but omissions of important facts, affecting the probabilities of the case, are relevant under this Section 11 of the Evidence Act in judging the veracity of the prosecution case’.

It is settled law that the FIR is not substantive evidence. It can be used only to contradict the maker thereof or for corroborating is evidence and also to show that the implication of the accused was not an after-thought. Since the examination of first informant was dispensed with by consent, FIR becomes part of the prosecution evidence. Though the FIR is not a substantive piece of evidence, it can be also used to test and measure the trustworthiness of the prosecution story as a whole.

The FIR is admissible under Section 157 of Evidence Act because it can be used for one of the limited purposes of corroboration or contradicting the maker thereof and another purposes for which the FIR can be used is to show the implication of the accused to be not an after thought or that the FIR can be used under Section 32 (1) of the Evidence Act or under Section 8 of the Evidence Act as to be caused of the informant’s death or as part of the informer’s conduct. This can be viewed by referring to the case of Kishan Chand v State of Rajasthan where the judge held that FIR cannot be used as substantive evidence, not the contents of the report can be said to furnished testimony against the accused than such FIR would not be covered by any of the clauses of Section 32 and 33 of the Evidence Act and will not be admissible as substantive evidence.

As a conclusion, after weighing the essential of FIR to be used as a first stage of a prosecution and clearly reflects that FIR does not carry any evidentiary value to stand as a document which ought to be examined in the court trial. So, here FIR is a document which attached merely to corroborated and contradict any trial either prosecution or defence.

(c) Discuss any likely effects on the non production of such FIR during trial?

Where the evidence of the complainant is the only evidence against the accused the failure to produce the complainant report at the trial raises a presumption that it would, if produced, have been unfavourable to the prosecution’s case and is not merely an irregularity that can be cured under Section 422 of the CPC. In Chin Khing Siong v R, the evidence of the complainant was the only evidence against the accused apart from the formal evidence of the arrest. The complainant gave evidence that he made a police report but the report was not produced in the evidence. The High Court exercising its appellate criminal jurisdiction held that, the likely effect of non production of FIR during trial will be a fatal aspect to the prosecution case. If the report had told a story similar to that told by the complainant in the witness-box it would have been admissible in evidence under Section 157 of the evidence Act. If the report did not support the complainant’s story in the witness-box then he could have been cross-examine upon it under Section 145 of Evidence Act. So, this means if the report was not produced, Section 114 (g) of the Evidence Act will apply and presume that the report would have been unfavourable to the prosecution case. If this were so, the complainant’s evidence would have been discredited, and the whole case for the prosecution would have fallen to the ground. Besides that, the non production of FIR also will cause some effects such as the delay will cause a cloud of suspicion on the credibility of the entire warp and woof of prosecution case. Besides that the effect of delay and non production is also to scrutinize the prosecution evidence more thoroughly so as to sift truth from falsehood or grain from the chaff.

Apart from that, the effect of non production including delay in sending the FIR during trial provides a legitimate basis for suspecting that the FIR was recorded much later than the stated date and hour affording sufficient time to the prosecution to introduce improvements and establishments and set up a distorted version of the occurrence, and the non production caused some doubts that the FIR had been wrongly done and accused an innocent person for the crime committed. This will give a concern to the magistrate to view the entire prosecution with suspicion whereas failure to produce FIR will reflect malicious intention of police department and it will be derived to injustice to accused and injustice also to the legal system in a country.

Next effect is material fact which ought to be reviewed as concurrent evidence might be lost to establish by prosecution as to protect their interest so that prosecution may face difficulties to build up their case. We also can say that the non production of FIR is one aspect that can make an indication that there was likelihood of exaggeration being introduced or false accusation being thought of, and then onus lies on the prosecution to explain the non production and delay satisfactorily.

Therefore, the non production of FIR during trial can cause a big doubt on prosecution case, where it creates danger creeps in of the introduction of exaggerated account and harm on a innocent person, and finally state as a fatal aspect to a prosecution in court.

Conclusion

FIR is not condition precedent to the commencement of criminal investigations because it is just a basis upon which the police will have the clue to start a criminal investigation, as the FIR only focussed on the occurrence of the offence and forms the basis of case. The second question is there is no evidentiary value to be attached to such FIR because it is not treated as a substantive piece of evidence and only be used for the purpose of corroboration and contradiction evidence, and the third question there is lot of effects of non production of such FIR during trial where it is known to be fatal to the prosecution because it creates doubts and will be injustice to the accused and our legal system.

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