Navjot Punia
Introduction
S. 157 (1)[1] of Code of Criminal Procedure states-
“If, from information received or otherwise, an officer in charge of a police station has reason to suspect the commission of an offence which he is empowered under section 156 to investigate, he shall forthwith send a report of the same to a Magistrate empowered to take cognizance of such offence upon a police report and shall proceed in person, or shall depute one of his subordinate officers not being below such rank as the State Government may, by general or special order, prescribe in this behalf, to proceed, to the spot, to investigate the facts and circumstances of the case, and, if necessary, to take measures for the discovery and arrest of the offender” (followed by provisos).
The sub-section aims to deliver a rational structure for maintaining integrity and ensuring checks and balances while laying down the duties of the officer in charge of a police station in carrying out an investigation. If from the information received a cognizable offence is suspected, a report of the same has to be ‘forthwith’ sent to the magistrate, and shall thereon proceed with the investigation. The objective of sending a report ‘forthwith’ to the magistrate was discussed in the case of Sahebgonda Laxman Birajdar v. State of Maharashtra[2]- it was stated that an informed magistrate could keep control over the investigation, and could even give an appropriate direction under S. 159.[3] To conduct investigation, a valid offence under S. 157 (1) should be present, i.e., it should not be covered under Chapter IV (General Exceptions) of the penal code[4].
Etymology of the term ‘forthwith’ in Criminal Law Jurisprudence across Common Law Nations
The expression ‘forthwith’ as per the Black’s law dictionary means-
“Immediately; without delay, directly, hence within a reasonable time under the circumstances of the case; promptly and with reasonable dispatch; Within such time as to permit that which is to be done, to be done lawfully and according to the practical and ordinary course of things to be performed or accomplished; The first opportunity offered.”[5]
The interpretation of the meaning of the expression ‘forthwith’ has been deliberated over across common law jurisdictions. Hon’ble Supreme Court of India in the case of Keshav Nilkanth Joglekar v. Commr. of Police[6]discussed the meaning of the term of the term ‘forthwith’ while considering numerous precedents across jurisdictions. In Reg. v. Justices of Worcester[7], while differentiating the meaning of ‘forthwith’ from ‘immediately,’ it was held that unlike the latter, the former should not receive a strict construction and it ought (not must) be done without unnecessary delay. Similarly, in Thompson v. Gibson[8], it was held that the expression should be considered to mean “within such reasonable time as will exclude the danger of intervening facts operating.” In Hudson v. Hill[9], it was held that the term means to perform the act as soon as is reasonably convenient. In Re Muscovitch[10],it was held that the meaning of the term should be construed as per what the circumstances warrant. The delay caused by some necessity may be deemed permissible, but when it can be done without causing any delay, it ought to be so done.
S. 157 (1)’s Jurisprudence over the Interpretation of “Forthwith send the report”
Before delving into the precedents dealing with the interpretation of this contested terminology, it is necessary to understand the role such an expression play. The expression ‘forthwith’ has been interpreted to mean “forwarding without delay” in the model police manual.[11]
Similarly, a detailed procedural guideline for prompt reporting of FIR about cases of murder has been laid down in Punjab Police Rules, 1934 [12]. It states that the copy of the FIR has to be sent “immediately,” and if the magistrate is out of station, the same has to be sent to the duty magistrate. The magistrate has also been obligated to note the date and time, along with affixing his initials to preserve the authenticity of the time at which it was received.
The legislative intent behind including such an expression was to ensure that there is no manipulation or interpolation in the FIR.[13] Once the FIR is sent to the magistrate, there remains no prospect of making amends to the information entered in the FIR or registering an ante-timed or ante-dated FIR. Whenever there is a delay caused based on any ground, the court has the leeway to seek an explanation from the prosecution for the same. The explanation granted, if found satisfactorily reasonable, then no adverse inference affecting the prosecution’s evidence and case can be made. The prosecution’s case is only subject to be brought under suspicion when the police officer-in-charge is questioned for the delay and does not satisfactorily revert to the question. When the officer in-charge has not been questioned, no adverse inference can be drawn unwarrantedly. In the State of Rajasthan v. Daud Khan[14], it has been held that the delay in reporting the FIR to the magistrate was questioned by the investigating officer and not the officer-in-charge, therefore, no adverse inference regarding the prosecution’s case was made.
The significance that is attached to prompt reporting of the FIR to the magistrate varies considering various grounds. In Swaran Singh v. State[15], it was held that delay in reporting FIR in grave offences like murder is certainly even more problematic. Other logistical factors such as distance from the police station to the court/ magistrate’s residence[16], time of reporting, holiday/working day, number of victims[17], workforce available (only six policemen[18]) etc. are all taken into account while construing the reasonability in delay.
Through a perusal of case laws about delay in reporting of FIR to the magistrate, it becomes clear that the magistrate’s questioning the delay from the officer-in-charge becomes a requisite for claiming delay as a ground for manipulation in FIR registration even at appellate courts. In Om Prakash v. State of NCT Delhi[19], the accused’s death sentence was upheld even when two days delay had been caused between registration of the FIR and reporting of the FIR to the magistrate because of holidays and the same not being questioned by the investigation officer. Further, when it comes to how the delay in reporting is interpreted, the subjectivity that the magistrate applies in considering it can vary substantially on the basis of personal inclinations. In Alla China Appa Rao case[20], it was held that the expression ‘forthwith’ does not obligate the prosecution to explain the delay in every hour of reporting to the magistrate. The prosecution’s case cannot be cast to doubt merely on the basis of delay in reporting of FIR, when it is otherwise trustworthy on appreciation of credible evidence. When it is not so, an adverse inference may be made. This means that the delay in reporting does not in itself signify any inference, rather emphasis has to be laid on the circumstantial evidence and the delay only strengthens suspicion when the evidence does not seem credible.
When the subjectivity in deciding whether the delay in reporting of FIR to the magistrate should have some adverse inference, the trial courts at times commit an error as was the case in Sarwan Singh v. State of Punjab[21]. In this case, merely because a very elaborate and graphic detail of the injuries caused to the deceased and the weapons with which the accused were armed, amongst other things were written in the FIR, it was considered that this must have been copied from the inquest report after the injuries on the deceased were fully examined by the Sup-Inspector at the spot, and therefore the prosecution’s case was cast to suspicion. This suspicion because of delay was overruled by the apex court considering the reasonable explanation put forth by the prosecution.
The suspicion over the delay in reporting of FIR to the magistrate because of some manipulative reason becomes further strengthened when the same is lacking by any kind of explanation and when the delay is of the considerably long period. In Ishwar Singh v. State of UP[22], there was a significant delay of two days in reporting of FIR. Further, no reasonable explanation for this delay was given by the prosecution and also there was the difference between the statement that was made in court and narration made in FIR. All these circumstances cumulatively seen made the suspicion harden into a definite possibility and the prosecution’s case was made doubtful.
Acquittal based on the absence of reasonable explanation for the delay in reporting FIR was also granted in Chikkarangaiah & Ors. v. State of Karnataka[23]. In this case the prosecution claimed that the FIR was left on a table by mistake and the same could only be delivered later on when the mistake was rectified. This explanation given by the prosecution was not accepted by any of the three courts- trial, High and Supreme Court considering the other suspicious findings, and the adverse inference for the prosecution’s case was made.
The Apex Court in Sahdeo v. State of U.P.[24], delivered more of an eccentric ruling. There had been a delay of around six days in reporting the FIR to the magistrate, but the FIR in its content was brief and to the point. Therefore, the contention that a false case had been fabricated in the meantime was not accepted and the court ruled that the genuineness of the FIR could not be contested as it merely stated the facts briefly. Therefore, even if there is significant delay but the FIR does not have any elaboration, it may be open to the court to claim that no adverse inference for the prosecution’s side is made.
The importance of circumstantial evidence in such delay cases was also highlighted in Chhotu v. State of Haryana[25], there was a delay of around seven days in reporting the FIR to the magistrate. The main reason behind it was found to be that the accused were named in the FIR only when the pistol was recovered from them and the prosecution witness earlier could not identify them. This created a benefit of the doubt and both the accused were acquitted on this basis.
In Bijoy Singh v. State of Bihar[26], the Supreme Court highlighted that it is important that the magistrate notes the date and time at which he receives the FIR from the police as this is the only effective check on the discretion in the investigation. In this case, the prosecution was unable to give a reasonable explanation for the delay in reporting FIR and further evidence of personal enmity, the accused were acquitted.
Non-existence of the practice of ‘forthwith’ reporting to the magistrate was accepted as a ground for delay in one day in reporting of FIR in State of J&K v. S. Mohan Singh[27] as the evidence otherwise was trustworthy and credible.
In the light of all these precedents, it becomes amply clear that subtle, yet significant, discretion lies with the courts (while seeking and accepting the explanation) and the police (while giving the reason for delay). This levity in terms of seeking an explanation, even if deemed appropriate for deciphering whether the delay is reasonable or not, is not consistent throughout the precedents looked into.
Identifying the Lacunae and Key Takeaways
Two major heads of consideration before the trial court while deciding whether the delay should be interpreted adversely or not are-
1. Circumstantial evidence - If the other circumstances point towards some sort of inconsistency between what is mentioned in the FIR and what the evidence state, the courts are generally inclined towards holding that the delay in reporting of FIR has to be considered adversely.
2. Explanation sought from prosecution- If the prosecution fails to deliver a reasonable explanation for the delay caused, the courts are generally inclined towards seeing the delay adversely.
As far as the second head of consideration is concerned, the explanation is generally sought from the police officer in-charge. Though it is expected that the officer in-charge would deliver the reasonable explanation which may have been the reason for the delay caused, but it is not necessary that the court would be satisfied from the explanation given. Also, if perceiving from the arena of possibilities, it is quite possible that the officer in-charge may consciously abstains from putting forth the reasonable explanation before the court, if he has colluded with the defence side, as the same would make the case of the prosecution seen adversely. When such an explanation is sought and a reply is made to it, a lot in such a scenario depends on how the explainer delivers his thought and how the court interprets it. This subjectivity can lead to varying positions being taken by the courts. Also, despite there being unfavourable probability, it is quite possible that while the circumstantial evidence points towards manipulation in the FIR, the same is not the case in reality.
To deal with these lacunas, the subjective criteria to determine whether delay in reporting of FIR should be adversely seen or not, can be completely done away with by establishing an objective criterion. While doing so, there is no denial to the observation made in Mahmood v. State of U.P.[28], that no universal rule can be laid down as to what time should the report be dispatched. By establishing an objective criterion, the aim is not to completely disregard the subjectivity of each circumstance, rather the aim is to look into the subjectivity through an objective criterion. The objective criterion can refer to the following heads-
Distance between the magistrate’s court and the police station.
Time of the day when the FIR was lodged.
Gravity of the offence.
Any personal enmity existing between the opponent parties.
Inconsistency between the information reported in FIR and found through evidence.
Once these five heads are taken under consideration, the court should objectively come to a conclusion as to whether the circumstances warrant in a particular condition to see the delay in reporting FIR to the magistrate adversely or not. Also, a guideline must be issued to the magistrates across country to ensure that on the receival of FIR by him, the date and time along with his signatures should be affixed so that no unnecessary dispute can arise regarding the same.
Further, a better and transformative suggestion is for replacing the objective criterion of dealing with the delay with automated system of reporting of FIR. The same has been a suggestion in the Final Draft of Punjab Police Rules, 2011, wherein it is stated-
“With the help of technology, efforts be made to ensure, that once the FIR is registered copies of the same be automatically dispatched, through e-mail or other medium, to the concerned Magistrate, senior supervisory officers, the complainant and other concerned.”[29]
Implementation of this suggestion completely does away with the whole root of the problem as delay would not be possible because of automatic FIR transmission.
Conclusion
The holistic jurisprudence that has emerged over interpreting the term ‘forthwith send the report’ in S. 157(1) showcases us that there exists a scope of procedural alteration so that the subjectivity of deciphering its reasons can be completely done away with. This open-ended leeway of taking different positions while interpreting seems even more concerning when there can be deliberate omission to state the reason for delay, making the case seen adversely. With the assistance of technological advancement and the above-mentioned establishment of an objective standard, the whole procedural issue could be resolved appropriately, and the lacunae could be set aside for good.
[The author is a 3rd year law student at NLU, Delhi.]
[1] S. 157 (1), The Code of Criminal Procedure, 1973, Act No. 2 of 1974. [2] Sahebgonda Laxman Birajdar v. State of Maharashtra, 2016 SCC OnLine Bom 8898, Para 33. [3] S. 159, The Code of Criminal Procedure, 1973, Act No. 2 of 1974. [4] Chapter IV, Indian Penal Code, 1860, No. 45, Acts of Parliament, 1860. [5] Black’s Law Dictionary (4th Edition Revised, West Publishing Co. 1968) Page 782. [6] Keshav Nilkanth Joglekar v. Commr. of Police, 1956 SCR 653 Para 4. [7] Reg. v. Justices of Worcester (1839) 7 Dowl Pr Cas 789-91: 54 RR 902 (903). [8] Thompson v. Gibson (1841) 8 M & W 282: 151 ER 1045, 1047. [9] Hudson v. Hill (1874) 43 LJ CP 273 (280). [10] Re Muscovitch (1939) 1 AER 135. [11] Model Police Manual: Volume 2, Bureau of Police research and development, Ministry of Home Affairs, page 48. [12] Rule 24.5, Punjab Police Rules, 1934. Vol. III. [13] Justice ML Singhal, Sohoni’s Code of Criminal Procedure, 1973, Volume 2, 1892, (22nd edition Lexis Nexis). [14] State of Rajasthan v. Daud Khan, (2016) 2 SCC 607, Para 29. [15] Swaran Singh v. State, 1980 SCC OnLine P&H 312, Para 13. [16] Supra 9, Para 9. [17] Gurdev Singh v. State of Punjab, (2003) 7 SCC 258, Para 9. [18] Supra 9, Para 9. [19] Om Prakash v state of Delhi, 1971 (3) SCC 413, Para 4. [20] Supra 9. [21] Supra 8, Para 8. [22] Ishwar Singh v. State of U.P., 1976 4 SCC 355, Para 5. [23] Chikkarangaiah & Ors. v. State of Karnataka, 2009 17 SCC 497, Para 29. [24] Sahdeo v. State of U.P., (2004) 10 SCC 682. [25] Chhotu v. State of Haryana, 1996 SCC (Cri) 1161, Para 7. [26] Bijoy Singh v. State of Bihar, (2002) 9 SCC 147, Para 8. [27] State of J&K v. S. Mohan Singh, (2006) 9 SCC 272, Para 11. [28] Mahmood v. State of U.P., (2007) 14 SCC 16 Para 13. [29] Chapter 25, Detection and Investigation of Crime, Final Draft of Punjab Police Rules, 2011, Pg. 9.