FIR in 498a Cases
The abbreviation F.I.R. means First Information Report. This is the term used to describe a police report in our country. The abbreviation has acquired a life of its own and has become a word of daily use now. Eff Ai Aar. FIR. This (daily use of this word) is especially true in the circles in which you are moving these days, which is to say amongst lawyers, police, and judges. The FIR in 498a cases is not immediate. The opposite is true in 304b cases.
An FIR –going by its name– should be based upon the first information (about the commission of a crime) received by the police. This does not always happen. Sometimes the police makes preliminary enquiries based upon the written complaint received by it. Sometimes the first information which is received is in verbal form, and the version which is put down in writing is a second or latter version. This happens when the complainant is illiterate.
It might also happen that the victim of a crime is put out of action, or there is no complainant due to the death of all the victims of a particular crime. In such cases the first information received by the police is invariably from other sources, and often such sources are unwilling to put down their complaint in writing. The police is duty bound to register an FIR in a number of types of crime, and they are forced in such situations to write the report themselves.
It may even happen that the person who reports a crime has no locus standi which may render him eligible to be the complainant. In such cases a situation may arise due to various factors which may force the police to record the crime in their own language.
In many crimes a delayed FIR is not taken seriously by the courts. In many other crimes an FIR is accepted as a weighty document regardless of any delay. Courts tend to take delayed complaints under IPC section 498a, IPC section 406, and IPC section 34 with a pinch of salt. An FIR is compulsory upon complaint –with a small caveat in the case of 498a– since all these sections pertain to cognisable crimes. The caveat established by law is that there is a CAW cell procedure which the complainant and the prime accused have to undergo before a decision is taken about forwarding the complaint to the relevant police station.
In serious crimes (crimes which may be punished by 7 years in prison) delays are condoned more easily than in warrant cases (cases relating to crimes which may be punished by 2 or more years in prison). In heinous crimes (crimes which may be punished by life in prison or death) any delay in registering an FIR is immaterial.
The statute of limitations is that law in any country which declares the number of years which may be allowed to expire before admitting an FIR is rendered legally impossible. In india, section 468 of CrPC lays down the law in this regard. According to this section, the limitation period for any offence which is punishable by a fine only is six months, that for any offence which is punishable by a prison term up to one year is one year, and that for any offence which is punishable by a prison term from one to three years is three years. Since section 498a is punishable by a maximum of 3 years, any complaint relating to dowry harassment or dowry cruelty must be reported within three years of the last claimed incident. The same is true of section 406, which relates to criminal breach of trust. Section 34 is punishable by one year in prison in the worst case, so if any complaint under sections 498a/406/34 is made more than one year after the reported offence, then section 34 must be not included in the FIR, lest it be quashed partly or in toto.
If any subsequent claims in the form of complaints are made by the complainant, the police is not bound to accept them at all, or to take them seriously. This is a fairly common occurrence in dowry cases, since disgruntled wives feel the need to embellish, embroider, and exaggerate their original version as soon as they realise that the government machinery is extremely receptive to their lies. This can and does go against them eventually, because a large number of discrepancies arise between the various versions that keep coming up during the legal process. Remember that there is no concept of S.I.R. or Second Information Report in law, although this is the preferred form of address used by the police when they talk to your 'father-in-law'.
According to the CrPC, any person who provides information to the police about a crime is obliged to sign the FIR. He or she is liable to be imprisoned for up to 3 months in case of a refusal to do so. This provision is almost never enforced. At least this writer has never heard about such a thing happening. Another interesting thing is that the CrPC does not define what an FIR is anywhere through its length.
Different writers have different views about hearsay becoming a basis for an FIR. Most writers say that if somebody provides vague or unreliable information, it cannot be considered to be an FIR even if it is in written form. Janak Raj Jai however, holds that hearsay is a perfect valid basis for an FIR. (Jai, J.R., Bail Law and Procedures, Universal Law Publishing Company, Delhi, 2012)
If somebody provides information about an injury to a person, then the SHO is duty bound to record the same in the daily diary and to reach the hospital urgently to verify the truth of the claim made by the informant. Another essential purpose of the hospital visit is to ensure timely carrying out of medico-legal formalities. The MLC or the medico-legal certificate is an important piece of proof in any FIR. A wife's case becomes much stronger in dowry cases if she has such a document in her possession, although there are a number of cases every week in which deception by the complainant is exposed by criminal defence lawyers. This sometimes leads to filing of charges against the lying complainant.
Madabhushi Sridhar has done a fairly comprehensive analysis of FIRs in his work (Sridhar, M.; FIR, Arrest and Bail, Asia Book House, Hyderabad, 2010). He quotes earlier experts as having declared that an FIR needs to have eleven essential Ws in it. These are listed in this book as paraphrased below
1) What information has been conveyed by the complainant / informant?
2) In What capacity has this information been conveyed?
3) Who committed the crime?
4) Against Whom was the crime committed?
5) When was the crime committed?
6) Where was the crime committed?
7) Why was the crime committed? That is to ask, what was the motive?
8) In Which way was the crime carried out / What was the modus operandi?
9) Are there any Witnesses? Who are they?
10) What was taken away by the accused? Or What was the damage done by the accused?
11) What traces were left by the accused?
Another interesting theme explored by this writer is whether an FIR can be used as evidence. He says that an FIR cannot be considered to be evidence. It is just a piece of information which sets the legal wheels in motion, and forms the basis for the investigation which is to be carried out by the police. The statements given by witnesses, the arguments given by counsel, the evidence laid on the table in court, these are all superior to the FIR in terms of deciding the case at hand. If these items corroborate the FIR, then the chances of conviction increase multifold. If however, they contradict the FIR, then the case becomes weak, because the FIR cannot be used to overrule these items. The truth emerges in court, or at the very least it is deemed to emerge in court, and the FIR is not the deciding factor in such proceedings.
The foregoing should give great courage and hope to 498a accused men and their parents, because this is clear (paraphrased) indication by a senior teacher of law that a good criminal lawyer can destroy the entire edifice of lies generated by your 498a wife, her family, and her sponsors.
Another important thing is that all material facts and circumstances must be recorded in an FIR. In legal language, material information is that information which can change the course of a case depending upon its truthfulness or lack of truthfulness. The Punjab and Haryana High Court has held, however, that an FIR cannot be expected to be an encyclopaedia of a crime. These two statements appear to be mutually contradictory, and I have a feeling that it is for the court in your case to adjudicate this apparent contradiction should such a twist occur in your dowry case.
You may also wish to read Typical FIR u/s 498a/406/34 (Part 1) and/or Typical FIR u/s 498a/406/34 (Part 2) and/or Arrest!! (OR Who is Joginder Kumar?) and/or What is the CAW Cell Process After a 498a Complaint is made by a Wife? and/or Conditions at the Women's Police Station and/or Conditions at the Delhi High Court and/or Interrogation and Investigation by the Police in Dowry Cases.
Written by Manish Udar
Published by Manish Udar
Page created on 7th September 2013
Last updated on 7th September 2013