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Mere Delay In Forwarding First Information Report To Magistrate under Section 157 of Code of Criminal Procedure, 1973 By Itself Is Not A Ground To Acquit The Accused: SC

Section 157 of Code of Criminal Procedure, 1973 deals with the procedure for investigation, which is reproduced verbatim as under:
157. Procedure for investigation preliminary inquiry.
(1) 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;
Provided that:

  1. when information as to the commission of any such offence is given against any person by name and the case is not of a serious nature, the Officer-in-Charge of a Police Station need not proceed in person or depute a Subordinate Officer to make an investigation on the spot;
  2. if it appears to the Officer-in-Charge of a Police Station that there is no sufficient ground for entering on an investigation, he shall not investigate the case.


Provided further that in relation to an offence of rape, the recording of statement of the victim shall be conducted at the residence of the victim or in the place of her choice and as far as practicable by a Woman Police Officer in the presence of her parents or guardian or near relatives or social worker of the locality.

(2) In each of the cases mentioned in clauses (a) and (b) of the proviso to sub - section (1), the Officer-in-Charge of the Police Station shall state in his report his reasons for not fully complying with the requirements of that sub - section, and, in the case mentioned in clause (b) of the said proviso, the Officer shall also forthwith notify to the informant, if any, in such manner as may be prescribed by the State Government, the fact that he will not investigate the case or cause it to be investigated.

Section 157 of Code of Criminal Procedure, 1973 requires such report to be sent forthwith by the Police Officer concerned to a Magistrate empowered to take cognizance of such offence. This is really designed to keep the Magistrate informed of the investigation of such cognizable offence so as to be able to control the investigation and if necessary to give appropriate direction under Section 159 of Code of Criminal Procedure, 1973.

Meaning of the word forthwith, would thus be seen that what is the delay in sending the report commonly called the occurrence report under Section 157 of Code of Criminal Procedure, 1973 to the Magistrate concerned will depend upon the facts of each case and so also the effect of the delay on the version of the prosecution.

If the report is not sent forthwith as required under Section 157 of Code of Criminal Procedure, 1973, it cannot be said that circumstance would be fatal to the prosecution. In common parlance, the word forthwith will mean immediately, without loss of time, or without delay and the delay would depend on the facts and circumstances of each case.

The obligation is on the Police Officer to communicate the report to the Magistrate in compliance of Section 157 of the Code of Criminal Procedure, 1973. The obligation cast on the Police Officer is an obligation of a public duty.

But in the event the report is submitted with delay or due to any lapse, the trial shall not be affected. The delay in submitting the report is always taken as a ground to challenge the veracity of the First Information Report and the day and time of the lodging of the First Information Report.  In cases where the date and time of the lodging of the First Information Report is questioned, the report becomes more relevant.
 
Scope; How to start investigation
Though Section 157 of the Code of Criminal Procedure, 1973 is captioned as Procedure for investigation, it really lays down how to start investigation of an offence which an Officer-in-Charge of a Police Station is empowered under Section 156 to investigate.

If from the First Information Report or otherwise, the Officer-in-Charge of the Police Station has reason to suspect the commission of such an offence, he himself can take charge of investigation or depute one of his subordinates, to do it, Clause (b) of the proviso to Section 157 of the Code of Criminal Procedure, 1973 lays down that there will be no need of investigation if it appears to the Officer-in-Charge of the Police Station that there is no ground for entering into investigation.

Whether to commence investigation or not is the discretion of the Officer-in-Charge of the Police Station, but an action either way is to be communicated a police report to the Magistrate who is empowered to take cognizance of the offence alleged to have been committed.

The Police Report must be sent forthwith i.e without any delay and immediately. The forwarding of the occurrence report is indispensable and absolute and it has to be forwarded with earliest dispatch which intention is implicit with the use of the word forthwith occurring in Section 157 of the Code of Criminal Procedure, 1973 which means promptly and without any delay. The purpose and object is so obvious which is spelt out from the combined reading of Sections 157 and 159 of the Code of Criminal Procedure, 1973.

It has the dual purpose, firstly, to avoid the possibility of improvement in the prosecution story and introduction of any distorted version by deliberations and consultation and secondly, to enable the Magistrate concerned to have a watch on the progress of the investigation. [Arjun Marik Vs State of Bihar, 1994 Suppl. (2) SCC 372; Bathula Nagamalleswara Rao & Ors Vs State, (2008) 11 SCC 722].

Section 157 of the Code of Criminal Procedure, 1973 casts an obligatory duty on the police to forthwith send a copy of First Information Report to the Magistrate and whenever the police fails to discharge this mandatory duty, it is under a legal obligation to furnish the reasons for not discharging it.

Before an inference is drawn that the First Information Report is antedated, some circumstances have to be shown either from the cross-examination of the relevant witnesses or from material appearing on record that would probabalise such an inference. [Tulshiram Bhanudas Kambale Vs State of Maharashtra, 2000 Cri. L. J 1566 (Bom.)].  
 
Supreme Court / High Rulings on Evidentiary Value Of First Information Report Sent With Delay to Magistrate
 
But mere delay in sending the report itself cannot lead to a conclusion that the trial is vitiated or the accused is entitled to be acquitted on this ground.

In [State of Rajasthan v/s. Daud Khan, (2016) 2 SCC 607 : (2016) 1 SCC (Cri) 793] in Paras 27 & 28, Supreme Court laid down as follows: (SCC PP. 620-21)
27.

The delay in sending the special report was also the subject of discussion in a recent decision being Sheo Shankar Singh Vs. State of U.P. [Sheo Shankar Singh Vs. State of U. P., (2013) 12 SCC 539 : (2014) 4 SCC (Cri) 390], wherein, it was held that before such a contention is countenanced, the accused must show prejudice having been caused by the delayed dispatch of the FIR to the Magistrate.

It was held, relying upon several earlier decisions as follows:
'30. One other submission made on behalf of the appellants was that in the absence of any proof of forwarding the FIR copy to the jurisdiction Magistrate, violation of Section 157 Cr. P. C has crept in and, thereby, the very registration of the FIR becomes doubtful.

The said submission will have to be rejected, inasmuch as the FIR placed before the Court discloses that the same was reported at 4.00 p.m. on 13-6-1979 and was forwarded on the very next day viz. 14-6-1979. Further, a perusal of the impugned Judgments of the High Court as well as of the trial Court discloses that no case of any prejudice was shown nor even raised on behalf of the appellants based on alleged violation of Section 157 Cr. P. C.

Time and again, this Court has held that unless serious prejudice was demonstrated to have been suffered as against the accused, mere delay in sending the FIR to the Magistrate by itself will not have any deteriorating (sic) effect on the case of the prosecution. Therefore, the said submission made on behalf of the appellants cannot be sustained.

31. In this context, we would like to refer to a recent decision of this Court in Sandeep v/s. State of U.P. [Sandeep Vs. State of U.P., (2012) 6 SCC 107 : (2012) 3 SCC (Cri) 18], wherein, the said position has been explained as under in Paras 62-63: (SCC P. 132)

62. It was also feebly contended on behalf of the appellants that the express report was not forwarded to the Magistrate as stipulated under Section 157 Cr. P. C instantaneously. According to the Learned Counsel FIR which was initially registered on 17-11-2004 was given a number on 19-11-2004 as FIR No. 116 of 2004 and it was altered on 20-11-2004 and was forwarded only on 25-11-2004 to the Magistrate.

As far as the said contention is concerned, we only wish to refer to the reported decision of this Court in Pala Singh Vs. State of Punjab [Pala Singh Vs. State of Punjab, (1972) 2 SCC 640 : 1973 SCC (Cri) 55], wherein, this Court has clearly held that (SCC P. 645, Para 8) where the FIR was actually recorded without delay and the investigation started on the basis of that FIR and there is no other infirmity brought to the notice of the Court then, however improper or objectionable the delay in receipt of the report by the Magistrate concerned be, in the absence of any prejudice to the accused it cannot by itself justify the conclusion that the investigation was tainted and the prosecution insupportable.

63. Applying the above ratio in [Pala Singh v/s. State of Punjab, (1972) 2 SCC 640 : 1973 SCC (Cri) 55] to the case on hand, while pointing out the delay in the forwarding of the FIR to the Magistrate, no prejudice was said to have been caused to the appellants by virtue of the said delay. As far as the commencement of the investigation is concerned, our earlier detailed discussion discloses that there was no dearth in that aspect. In such circumstances we do not find any infirmity in the case of the prosecution on that score.

In fact the above decision was subsequently followed in [Sarwan Singh v/s. State of Punjab, (1976) 4 SCC 369 : 1976 SCC (Cri) 646], [Anil Rai Vs. State of Bihar, (2001) 7 SCC 318 : 2001 SCC (Cri) 1009] and [Aqeel Ahmad v/s. State of U.P., (2008) 16 SCC 372 : (2010) 4 SCC (Cri) 11].

28. It is no doubt true that one of the external checks against antedating or ante-timing an FIR is the time of its dispatch to the Magistrate or its receipt by the Magistrate. The dispatch of a copy of the FIR forthwith ensures that there is no manipulation or interpolation in the FIR.

[Sudarshan Vs. State of Maharashtra, (2014) 12 SCC 312 : (2014) 5 SCC (Cri) 94] If the prosecution is asked to give an explanation for the delay in the dispatch of a copy of the FIR, it ought to do so. [Meharaj Singh Vs. State of U.P., (1994) 5 SCC 188 : 1994 SCC (Cri) 1391]

However, if the Court is convinced of the prosecution version's truthfulness and trustworthiness of the witnesses, the absence of an explanation may not be regarded as detrimental to the prosecution case. It would depend on the facts and circumstances of the case. [Rattiram Vs. State of M.P., (2013) 12 SCC 316 : (2014) 1 SCC (Cri) 635]

Supreme Court in [Anjan Dasgupta Vs. State of West Bengal, (2017) 11 SCC 222 : (2017) 4 SCC (Cri) 280] considered Section 157 Cr. P. C. In the above case also, the First Information Report was dispatched with delay. Referring to an earlier Judgment [Rabindra Mahto Vs. State of Jharkhand, (2006) 10 SCC 432 : (2006) 3 SCC (Cri) 592] of Supreme Court, it was held that in every case from the mere delay in sending the First Information Report to the Magistrate, the Court would not conclude that the First Information Report has been registered much later in time than shown.
 
The Supreme Court in [Criminal Appeal No. 982/2011 titled Ombir Singh Vs State of Utter Pradesh & Anr.], has reiterated that the delay in sending the First Information Report to the Magistrate in compliance of Section 157 of the Code of Criminal Procedure cannot, in itself, be a ground to acquit the accused.

Therefore, delay in compliance of Section 157 of the Code cannot, in itself, be a good ground to acquit the appellant., the Bench comprising Justices N. V. Ramana, Mohan M. Shanthanagoudar & Sanjiv Khanna said.

Further, the Supreme Court in [Sarwan Singh & Ors. Vs State of Punjab, AIR 1976 SC 2304, 1976 Cri. L. J 1757, (1976) 4 SCC 369] observed that delay in dispatch of First Information Report is not a circumstance which can throw out the prosecution case in its entirety. Hence, if, prosecution has given a very cogent and reasonable explanation for the delay in dispatch of First Information Report, the Trial Court was not justified in rejecting prosecution case on the ground of delay in the particular circumstance of the case.

It is not as if every delay in sending such special report to the Magistrate under Section 157 of the Code of Criminal Procedure, 1973 necessarily leads to the inference that the First Information Report has not been lodged at the time stated or has been ante-timed or ante-dated or that the investigation is not fair and forthright.

Hence where the steps in the investigation by way of drawing inquest report and other Panache-names started soon which could only follow the handing over of First Information Report, the delayed receipt of special report by District Magistrate would not enable the Court to dub the investigation as tainted one nor could had First Information Report be regarded as ante-timed or ante-dated. [State Of U.P Vs Gokaran & Ors., AIR 1985 SC 131, 1985 Cri. L. J 511, 1984 (2) Crimes 761 SC, 1984 (2) SCALE 602, 1984 Supp (1) SCC 482].

Where the First Information Report was lodged without delay, late receipt of the report by the Magistrate in the absence of any other vitiating circumstances will not make the lapse fatal. This is particularly, so where there satisfactory explanation for the delay and there is no inconsistency in the basic aspects of the case as reported by the informant and spoken by the witness. [State of Kerala Vs Dasan, 1986 Cri. L. J 345; Jasbir Singh Vs State of Haryana, 2002 Cri. L. J 2975 (SC)].

Where prosecution case is matured and probable and the prosecution witnesses are reliable, the, unexplained delay in sending First Information Report to Magistrate would not affect the prosecution case. [Balu Ram Macchi Vs State of Gujrat, 1986 Cri. L. J 983].

The mere fact that the delivery of First Information Report to local Magistrate and holding of Inquest Report was delayed one, does not render First Information Report ante-timed or ante-dated unless on the circumstances of a particular case it is clearly shown that the sending of the First Information Report to the Magistrate has been deliberately delayed with a view to concoct story. [Ishwar Singh Vs State of (Delhi Admn.), 1985 Cri, L. J 1625; (1984) 2 Crimes 127].

Supreme Court [Alla China Apparao & Ors Vs State Of Andhra Pradesh, 2002 AIR SCW 4290; 2002 (8) JT (SC) 167] while construing the expression `forthwith' used in Section 157 (1) of Code of Criminal Procedure, 1973 observed that:
it is a matter of common experience that there has been tremendous rise in the crime resulting into enormous volume of work, but increase in the police force has not been made in the same proportion.

In view of the aforesaid factors, the expression `forthwith' within the meaning of Section 157 (1) obviously cannot mean that the prosecution is required to explain every hour's delay in sending the First Information Report to the Magistrate, of course, the same has to be sent with reasonable dispatch, which would obviously mean within a reasonable possible time in the circumstances prevailing.
 
Conclusion
There cannot be any manner of doubt that Section 157 of Criminal Procedure Code, 1973 requires sending of an First Information Report to the Magistrate forthwith which reaches promptly and without undue delay. The reason is obvious to avoid any possibility of improvement in the prosecution story and also to enable the Magistrate to have a watch on the progress of the investigation.

At the same time, this lacuna on the part of the prosecution would not be the sole basis for throwing out the entire prosecution case being fabricated if the prosecution had produced the reliable evidence to prove the guilt of the accused persons. The provisions of Section 157 of Criminal Procedure Code, 1973, are for the purpose of having a fair trial without there being any chance of fabrication or introduction of the fact at subsequent stage of investigation.

Section 157 of the Code of Criminal Procedure, 1973 mandates that if, from information received or otherwise, an Officer-in-Charge of 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 the Magistrate empowered to take cognizance of such offence upon a police report. Section 157 of the Code of Criminal Procedure, 1973, thus in other words directs the sending of the report forthwith i.e. without any delay and immediately.

Further, Section 159 of the Code of Criminal Procedure, 1973 Cr. P.C. envisages that on receiving such report, the Magistrate may direct an investigation or, if he thinks fit, to proceed at once or depute any other Magistrate subordinate to him to proceed to hold a preliminary inquiry into the case in the manner provided in of the Code of Criminal Procedure, 1973. The forwarding of the occurrence report is indispensable and absolute and it has to be forwarded with earliest dispatch which intention is implicit with the use of the word forthwith occurring in Section 157 of the Code of Criminal Procedure, 1973, which means promptly and without any undue delay.

The purpose and object is so obvious which is spelt out from the combined reading of Section 157 and 159 of the Code of Criminal Procedure, 1973. It has the dual purpose, firstly to avoid the possibility of improvement in the prosecution story and introduction of any distorted version by deliberations and consultation and secondly to enable the Magistrate concerned to have a watch on the progress of the investigation.

Written By: Dinesh Singh Chauhan, Advocate - J&K High Court of Judicature, Jammu.
Email: [email protected], [email protected] 

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