Political Search Light on Judgments -- Judge's Enchained

(By Dr.K.B. Mohamedkutty, Senior Advocate and Former Dean, Faculty of Law, Calicut University)

The judgments involving politicians are sometimes scanned without any semblance of fairness.  But the judges cannot explain or meet the critics as others can do.  In such a situation a judge is compared with an elephant enchained and stones thrown at it by naughty children.   The critics do not realise that the only way before the judge is to decide the issue after hearing the same. But while deciding controversial issues, there is no one answer in law; on the other hand, there might be two or more answers.  This inevitably leads to a choice, which is not picked out by judges “full blossomed” from the Constitution and the laws.  It is axiomatic that there is no perfect one answer to a political question.  Legal norms in such cases are variable in all legal systems even if the judge is endowed with the best brain. 

Experience shows that political cases in India face legal abortion not infrequently for one reason or the other. However, a few politically-oriented legal questions come up for decision before court occasionally.  Judicial decisions in cases involving political parties give rise to uproar in all democratic countries.  Such cases become political hot potato only for the reason that some politicians are involved in them. The people watch the outcome of such cases and assess in their own way how responsible, impartial and honest the judges are in their findings in such cases.  The acrimonious tenacity of political comment is perhaps less in India than in Pakistan.  The Chief Justice of that country was even put under house arrest for more than one year during Mushraff’s regime and the Prime Minister was punished by the Supreme Court for contempt of court.   

In fact every Constitutional question poses really political question, because the Constitution itself is a political document. How can a judge exclude politics of the policy of law when he is called upon to decide questions having direct impact of violation on Human Rights or Fundamental Rights by Government in power? But politics of the Constitution are treated differently and not subjected to narrow squabbles.  For the good of politics and the good of democracy, criticism in such matters is generally limited to fair comments. However, cases arising out of killing of political opponents by hired criminals or securing illegal gain by misuse of power stand on a different footing.   The judges are bound to write judgment in all such cases as well, but their judgment is confined to evidence on record and its evaluation.  It is not uncommon today that judges are targeted when cases involving politicians are decided even if the views expressed are legally feasible.  The criticisms flow from all sorts of people including visual and print media and they do so without attempting to examine the judgment and its reasoning meticulously. Such boisterous critics forget that they do a disservice to democracy and political culture. 

Lavalin case

Recently there was uproar when four judges of the Kerala High Court recused hearing themselves from S.N.C. Lavalin Graft Case. It occurred when two revision petitions against the discharge of C.P.M. State Secretary came up before the Court. It was observed by critics that the recusation is violative of judges’ oath.  Some even suggested Governor’s interference to proceed against the judges. When chain of recusals was made in the past in some cases, the critics kept themselves tongue-tide without suggesting drastic Draconian step.  It is not known how the recusals, even if they were followed by one after other without assigning reasons, constitute violation of judges’ oath. They take oath that they will perform the duties of their office without fear or favour, affection or ill-will and to uphold the Constitution and the laws.  When a judge expresses his unwillingness to hear a particular case one can assume, considering the high office he holds that he did so in order to fulfill his oath.  There is no need to think otherwise.  There might be circumstances which compels a judge to avoid a case.  If there is an attempt to influence him through some indirect means, there may not be evidence to mention.   Such avoided cases could be heard and decided by any other judge according to rules of allotment of cases. It is a routine procedure going on without any objection. If a judge feels that his hearing may lead to likelihood of bias, or reasonable suspicion of bias, he has a duty not to sit in judgment of that case. 

Actual  Bias  and  likelihood  of  Bias

Cases decided indicate that no actual bias need be established; a mere likelihood of bias is enough.  The oft-repeated saying of Lord Hewart C.J. in R v. Sussex Justices, ex parte McCarthy (1969) l Q.B. 577 is applicable here. Accordingly, it is not merely of some importance, but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done”. (In some articles and reported cases it is wrongly quoted as “seem to be done” or “appear to be done”). The word ‘seen’ is significant.  In applying this principle one does not look at the subjective feeling of the judge.  On the other hand, what is looked into is the impression which would create in the minds of other people.  According to Lord Denning, even if one is impartial as could be, nevertheless if right-minded persons would think that, in the circumstances, there was a real likelihood of bias on his part, then he would not sit. (See, The Discipline of the Law).  In his view justice must be rooted in confidence: and confidence is destroyed when right-minded people go away thinking: “The judge is biased.”  Judges should avoid cases that might cast doubt in the mind of others in regard to the adjudicatory process.  It is not the judge’s conviction that he will not depart from the path of justice that matters. The openness of the court is yet another requirement of the principle that “justice must be seen to be done.” The people are allowed to watch the proceedings going on in the open court.  There is nothing secret about it.  

Mounting  Criticism 

Fair criticism of judgment is necessary for development of the law on the right line. But verdicts are sometimes subjected to hasty and unfair criticism. This is more so in political cases.  The reason is that in political issues coming up for judicial scrutiny, legal norms are often competing.   The deciding judge then will have to take one of them in the decision making process. Naturally one party is dissatisfied and would say that the decision is judicial wickedness.  The door is open to aggrieved party to approach the superior court for overturning the judgment. We must realise that Judges cannot speak about his judgment publicly in order to answer the critics. In post retirement life also judges’ detachment is ideal to avoid popular passions and dislikes and to safeguard the majesty of the Judiciary. 

Today judiciary is overburdened with cases involving political hues.   The political questions which the politicians find it difficult to decide are thrown to the judiciary. This situation prevailed and continues to prevail in all countries.  Benchamin Cardozo therefore observed that “Legislatures have some times disregarded their own responsibility and passed it on to Courts”. (See Judicial Process).  A decision in a politically discharged issue puts the judge in an embarrassing position even if he has no politics.  The judges desire to avoid politics not because politics is bad, but it is a thing which may cast doubt on his impartiality.   

Before Independence 

It is a matter of history that judges had suffered the wrath of autocratic dynastic rulers when they decided political cases before India became a republic.   Those judges who asserted truth and exposed bigotry of Kings and Emperors were subdued or humiliated.  One such incident was the dismissal of Maharashtra Chief Justice Ramasastry, (1774 A.D.) for not writing judgment in favour of the King who usurped power.  When Peshwa Madhav Rao died in 1772, his surviving brother Narayan Rao, aged 17 became the successor king according to prevailing practice.  But his uncle, Raghuntha Rao hatched a plot and assumed power by murdering the legitimate young ruler.   There was a peoples’ upsurge which   followed a probe in which   the uncle and 49 others were found guilty. This was confirmed by the Court.   The decision was not implemented, but the King dismissed the Chief Justice with bell, book and candle.(See, Ram Joice, Legal and Constitutional History of India (2012), p.498. 

Today, even in our Constitutional set up, in deciding political cases the judiciary faces hostile comments from a section of politicians who are concerned with their immediate political interest. Without critically examining the issue and the reasoning of the judgment, most of them comment with the swiftness of the wind and the media make it a whirlwind.   This is lamentable indeed.  

Some Thoughts on Absenteeism by Advocates

(By K.G. Balasubramanyan, Advocate, High Court of Kerala)

It was a mad rush, worse than usual, on the road. I was testing my patience and skill at speeding, in a hurry to reach Court to be present for admission item 5. I was one among thousands of victims of the atrocity of traffic block in the Metro City.

Varied reactions - soft and sharp, amused and bitter, ferocious and mild – welcomed me on the verandah of High Court. Some lawyers were winking at each other, some were smiling. I also found “Tom sawyer: whew! No-class-today” expression on some faces!

Sorry, did not have the time to read the newspaper or watch channels. Then somebody fired the shot: BOYCOTT! My anxious enquiry was met with some glaring faces and flaring tones (I recall a sneering look also). “You don’t know? Shooting at the capital?” I thought I heard someone say, lawyer shot at, at Thiruvananthapuram.

The handset vibrated irritatingly in my pocket, a precursor to some message. I opened the message with a premonition of danger. Yes! It said: “KHCAA members are requested to abstain from Court proceedings today (5.3.14) in view of the GB decision to protest against the attack on lawyers @ Trivandrum”.

I do not know the truth of what happened at the railway station or police station or Court at Thiruvananthapuram. I do not know who the aggressor was. But, I do know I also am quite concerned and agitated at the unsavory incident, as a lawyer and citizen. That single shot from the short barrel of a small firearm is definitely an affront on judiciary. I do not think that my colleagues were so aggressive to provoke such a drastic situation. I would like to think that the other aggressor was reckless, perhaps emboldened by that piece of iron.

I am at the court. The verandahs are deserted. The judges are unwillingly not at Court. The court halls are vacant. It is almost like a holiday. I fancied the air conditioner cackling. The National Flag atop the High Court building was fluttering unwillingly, in agony or empathy, in the light breeze, against the backdrop of a sullen sky. Or was it in sympathetic contempt? I dragged myself away to my favorite sojourn, the library, to mull the day’s scoreboard and files, to embrace those beautifully bound volumes.

The Greatest attraction of our profession is FREEDOM. But, freedom comes at a price: Punctuality, Honesty and Dedication (PHD). Can a lawyer deliberately absenting himself from Court, for whatever provocation, for solidarity or sobriety, claim any of these qualities? Look at the wrinkled faces of clients. Wrinkled by age, by waiting, by hoping against hope, by hopping from court to court and by waiting for his day of judgement! Wrinkled by feelings many may not be able to digest. And look at the countless dusty files, waited upon by dreams and tears. One day lost to lawyers and judges! To thousands of clients, rich and poor, each of who must have thought: today is my day! I do not compare aam aadmi to amir aadmi in dispensation of justice. The misconceived request to abstain from Court proceedings has not contributed to the medley of delayed justice and injustice.

Declaring a boycott of Court and requesting members to abstain from Court proceedings are, but, two sides of the same coin. Did anyone gain from today’s forced absenteeism? Even Boy scouts will tell you, “No Sir, No boycott”. My due sympathy to the unfortunate duo and my antipathy to the troublemakers notwithstanding, who will that give me my day back? Could we, the men of law, not have shown our protest in a different and more creative manner? As the Japanese do, should we not show our protest by working longer, asking Courts to sit longer and the Parliament to assemble longer? Remember, today’s lawyer will be tomorrow’s judge. Should he not dispose himself accordingly? Yes, you heard me right. Judges have no business to strike work. Their unceasing business is to strike a balance between competing rights, to balance the pans of justice between right and wrong. Counsel, your call should be “to Duty and for Honour”, not for Right alone.

“To work or not to work” culture should be left to individuals and should not be imposed or unionized en masse on men of the noble (?) profession. Lawyers cannot be equated to the so-called working class (?) who are privileged to resort to agitation in any form, at any time, for reasonable or unreasonable reasons. Is not the call to boycott courts (request to abstain from Court proceedings), on unwilling or not-too-willing noble men, ignoble and against their personal convictions and commitments, violative of Article 19 as against them? Of violation of Article 21 as against clients to whom justice remains a mirage in a desert of overburdened courts gasping for breath? I do not think that the dignity the profession masquerades or the divinity it showers on itself is polished by compelling us to be idlers. True, the apex court has opined, very guardedly, in favour of rare abstention from court. But that does not justify request to abstain from Court proceedings. It is more damaging than that single shot at the capital.

I am not commenting upon the openness of the sponsors of the imposed absenteeism or the reticence of who-ever-was-in-charge to respond to the call to request to abstain from Court proceedings. They are all honorable men. But Sir, have you tried waiting in the same court hall for God-knows-how-many-days to have one case taken up for the client came to court 30 years ago and wants to get out before he is out of this world, watching tireless judges trying to make the best of the available time, trying not to miss Queen’s Bench precedents or Privy Council and Supreme Court declarations? I am thinking of upset court schedules, lawyer/clerk/client travails. 

For those who wait only for the bell to strike, a day of strike/absenteeism without the toll of the bell may be welcome. But, I feel stricken. Who will pay the toll for the lost day? Are “We, The Last Warriors” becoming the lost warriors?

Postscript: Did any lawyer tell any client today (5.3.2014) “Closed. No service today”?

First  Information  Statement (F.I.S.); First  Information  Report (F.I.R.)

(By Justice (Retd.) U.L. Bhat, Former Chief Justice)

Section 154 of Code of Criminal Procedure 1973 (for short, the Code) deals, inter alia, with ‘information’ regarding commission of cognizable offences. Though the word ‘FIRST’ is not seen in the section that is how it is understood by the legal system.  If such information is given orally to the officer in charge of a Police Station, that is the Station House Officer (S.H.O.), the same shall be reduced to writing by him or under his direction and be read over to the informant and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf. A copy of such information as recorded shall be given forthwith, free of cost, to the informant.

2. The heading of this paper refers to two distinct matters, F.I.S. and F.I.R. When information regarding commission of a cognizable offence is given orally or in writing to Police, such information can be said to have been “stated” to Police; therefore the information stated orally and reduced to writing by Police or information stated or given in writing, can be regarded as a “statement”.  What is stated is a statement, hence, it is described as F.I.S.  At the same time, it is possible to say that the informant “reports” to Police about commission of a cognizable offence and hence it can be loosely described as First Information Report-‘F.I.R.’.  Yet nowhere does Section 154 use the word “Report”.  As a matter of fact, the Code does not use the words ‘First Information Report-F.I.R.’ either.  In connection with first information about commission of cognizable offence received by Police, Section 157 requires Police to “send forthwith a report” to the jurisdictional Magistrate.  This “Report” is what is understood by the legal system as ‘First Information Report-F.I.R.’.  Thus, there is a clear distinction between F.I.S. and F.I.R.; they are not the same.  If F.I.S. and F.I.R. are understood in this manner and in the light of the various columns of F.I.R. form seen in Part III of Karnataka Police Manual, it can be understood that F.I.S. can be a part of F.I.R..

However, it is seen that there are judgments of the Supreme Court in which F.I.S. is referred to as F.I.R. and vice versa, without highlighting the difference between the two.  The following observation of the Court may be seen₁ 

Para 19 :– “ An information given under sub-section (1) of Section 154 of Cr.P.C., is commonly known as FIRST  INFORMATION  REPORT (F.I.R.), though this term is not used in the Code …… And as it’s nick name suggests it is the earliest and the First Information of a cognizable offence recorded by an officer in charge of a police station.”
 

Para 20:- “……. It follows that under the scheme of the provisions of Section 154, 155, 156, 157, 162, 170 and 173 of Cr. P.C., only the earliest or the first information …… satisfied the requirements of Section 154 Cr.P.C. ……. On receipt of information about a cognizable offence …….. and on entering the F.I.R. in the Station House Diary, the officer in charge of a Police Station has to investigate…..”                                                                                                                                                                           (emphasis supplied)

In an earlier decision₂, the Supreme Court seemed to treat F.I.R. as a complaint.  In a much later decision₃ the Supreme Court observed as follows:-

Para 10:- “Thus, there is an obligation on the part of a police officer to register the information received by him of commission of a cognizable offence”

“The opening words of section 154 suggest that every information relating to commission of a cognizable offence shall be reduced to writing by the officer …….. This implies that there has to be first information report about an incident which constitutes a cognizable offence”

Para 20:- “Section 154 of the Code places an unequivocal duty upon the Police officer in charge of a Police Station to register F.I.R. upon receipt of the information …….                      (emphasis supplied)

In another case₄  the Supreme Court observed in para 17 as follows:-

“After all registration of F.I.R. involves only the process of entering the substance of the information relating to the Commission of a cognizable offence in a book kept by the officer in charge …. as indicated in section 154 of the Code”                                    (emphasis supplied) 

3. That the above references to “information” as F.I.R. were casual and passing, is clear from certain other decisions of Supreme Court.  Supreme Court₅ speaking through K.T. Thomas, J, while discussing whether Police were in error in treating a particular exhibit as F.I.S., stated as follows:-

Para 8A:- “But we do not find any error on the part of the Police in not treating Ex. 10/3 as first information statement for the purpose of preparing the F.I.R. in this case.  It is evidently a cryptic information and is hardly sufficient for discerning the commission of a cognizable offence therefrom.  Under section 154 of the Code, the information must unmistakably, relate to the commission of a cognizable offence  and it shall be reduced to writing (if given orally) and shall be signed by it’s maker.  The next requirement is that the substance thereof shall be entered in a book kept in the police station in such form as the State Government has prescribed.  First Information Report (F.I.R.) has to be prepared and shall be forwarded to the Magistrate …..”                                           (emphasis supplied)

In another case₆ while referring to the fact that the informant narrated to the S.I. of Police what had happened, the Supreme Court described it as follows:

Para 13:– “First Information Statement was taken from PW1 by PW7 (S.I. of Police) in the house of CW9)”       (emphasis supplied)

Paragraph 16 and 18 of the judgment also refer to that statement given to the S.I. of Police as “First Information Statement.” 

It is thus clear that the oral information given by the informant and recorded by the Police (the information furnished by him in writing) is the F.I.S. and after recording F.I.S., the Police officer concerned enters the substance of the information in the book containing forms prescribed by the State Government and thereafter F.I.R. is to be prepared and forwarded to the Jurisdictional Magistrate.  In this light, F.I.S2. and F.I.R. are different, though F.I.S. may be initially recorded or (in the case of a written F.I.S.) copied in a particular column in the F.I.R.

Police  Manual

4. Provisions in Police Manuals are instructions issued with the approval of State Government.  Kerala Police Manual is in four parts or volumes and the volumes do not contain the various forms referred to in the manual.  Obviously forms were issued separately.

5. An informant may himself prepare or get drafted in writing particulars of  information about commission of a cognizable offence which he desires to communicate to S.H.O. and handover such written information to S.H.O.  He may also furnish orally such information to the S.H.O., in which case, the latter is obliged to record the same accurately.  In either case, the information so furnished or reduced to writing is required to be read over to the informant and the same shall be signed by the informant.  This is what is provided for in the earlier part of Section 154 (1) of the Code.   In either case, the information so furnished in writing or reduced to writing is itself First Information Statement (F.I.S.), though the words “First” or “Statement” are not found in the Code.  When such information is first furnished to the S.H.O., it is F.I.S..  

Para 304 in Chapter VII of Volume 2 of Kerala Police Manual explains what constitutes “First Information”. The manual does not refer to “F.I.S.” but refers indiscriminately to “First Information Report” (F.I.R.). F.I.S., furnished orally, is required to be recorded accurately in the appropriate column of F.I.R. form prescribed.  If F.I.S. is given in writing,  that has to be affixed to F.I.R.  After recording F.I.S. in the proper way, the SHO is required to fill up the other columns in the F.I.R. book (which contains the F.I.R. forms); signature of the informant has to be taken in the written information, if any.  Thus, it is seen that what we call F.I.S., is a part of the F.I.R..  In other words F.I.R. includes F.I.S. recorded in column (9) of new F.I.R. Form.  See also other paras in Chapter VII.

The manual employs the words “First Information Report” (F.I.R.) and does not employ the words “First Information Statement” (F.I.S.).  As a matter of fact the Manual refers to the F.I. Statement as F.I.R., leading to some confusion.

6. Para 306 of Volume II of Kerala Police Manual occurring under the heading “Registering in First Information Report Book”,  states, inter alia, that “Information” coming under any of the headings referred to thereunder (the first heading takes in cognizable offences) received at a police station shall be registered in the First Information Report book (Form KPF No.25).   Para 304 (1) refers to this book as the book prescribed by Section 154 of the Criminal Procedure Code” and these quoted words can create some confusion.  

Black’s Law Dictionary, Abridged sixth edition, 1991 furnishes the following meanings for the words “Register” and “Registration”:-

Page 887 Register       -    “To record formally and exactly, to enter precisely  in a list or the like ……”

Page 889 Registration -    “Recording, inserting in an Official Register 

                                          ………..or of making entries therein." 

Thus, when the manual requires “information’ to be registered in F.I.R. Book, it only means that F.I.S. is to be recorded or reproduced in a particular column of a page in the F.I.R. Book.  This means that oral information must be recorded and written information must be reproduced in the appropriate column of F.I.R. form in F.I.R. Book.  Four more carbon copies are required to be taken simultaneously. (See para 308 of Chapter VII).

The question that arises is whether the F.I.R. book is the book referred to in the latter part of section 154(1) of the Code of which the form is required to be prescribed by the State Government? The mandate of the latter part of section 154(1) is that after the F.I.S. is submitted or recorded, read over and signed, the substance of the F.I.S. shall be entered in a book to be kept by SHO in such form as prescribed by the State Government.  The book referred to in para 304 of the manual is the F.I.R. book in form K.P.F. No. 25  and the column in the form requires that contents of F.I.S. and not substance, to be recorded in the column of F.I.R. Form.  

The requirement of section 154(1) of the Code is merely to record the substance of the F.I.S. and not the entire F.I.S. in the prescribed book. This means that the State Government felt that it is safer to require the entire F.I.S. to be recorded or copied in the particular column in F.I.R., instead of merely recording the substance of F.I.S. in F.I.R., since in recording merely the substance, there could be honest (unintentional) or dishonest (intentional) omissions. The State Government, in its wisdom could very well require the entire F.I.S. to be recorded or copied in the Form in the F.I.R. Book. Para 306(6) of Chapter VII of the manual refers to the requirement of recording the “substance” of “information” in the General Diary (GD).  The form of GD is also prescribed. Thus, instead of recording the substance of F.I.S. in the F.I.R. Book, the entire F.I.S. is required to be recorded therein. 

A Constitution Bench of the Supreme Court_6A, after considering  the  provisions of the Code, the previous Codes as also the provisions of the Indian Police Act, 1861 and the  Punjab Police Rules, 1934 framed under this Act, held, inter alia, that   registration of F.I.R. is mandatory under Section 154 of the Code if the information discloses  commission of  a cognizable offence and  no preliminary inquiry  is permissible in such a  situation and  if the information received  does not disclose a commission of   a cognizable offence  but indicates the necessity for enquiry, a preliminary enquiry  may be conducted only to ascertain whether  cognizable offence is disclosed or not. If the inquiry discloses the commission of a cognizable offence, the F.I.R. must be registered. A Police Officer cannot avoid his duty of registering a case if commission of a cognizable offence is disclosed. The categories of cases in which preliminary inquiry could be conducted is indicated by the Constitution Bench. The Bench also directed  that  since General Diary/Station Diary/Daily Diary  is the record of all information received in the police station, all information relating to cognizable offences, whether resulting in  F.I.R. or leading to  preliminary enquiry as  aforesaid,  must be mandatorily and meticulously reflected in the said Diary.

Even the judgment of the Constitution Bench, it is necessary to note, contains some casual language. “First Information Statement” and “First Information Report” and  “Registration of F.I.R.”  are words not used in the Code, though the judicial system employs these words  and  such words have definite,  clear cut connotation and meaning. 

“Registration” of F.I.R. merely means making relevant entries in F.I.R. form in the F.I.R. Book. The Constitution Bench in paragraph 58 of the Judgment has taken note of the usual practice of recording complete complaint in the F.I.R. Book (or  annex it with the  F.I.R. form).

Nevertheless, the following sentence in paragraph 48 of judgment appears to be casual:- 

“The First Information Report is in fact the “information”  that is received first in point of time……..”.  

If the underlying intention was to underline that it is only the information received first in point of time, which is, in law, the “First Information Statement”, the sentence could have been more accurately framed as follows :-

“The First Information Statement” is in fact the “information” that is received first in point of time”.

“Information” given to the police may be described as “complaint” reported to the police, but, it is not the same as “First Information Report” for the purpose of the Code.  F.I.S. is part of F.I.R. and not the same as F.I.R..  F.I.R. contains much more than F.I.S..

7. Kerala Police Manual requires the Sub-Divisional officer to scrutinize all case diaries received from inspectors and to maintain a crime register to watch the receipt of the case diaries and the progress reports.  Various particulars of crimes are to be entered in appropriate columns of the Crime Register.

8. It is necessary that Judges be familiar with the provisions of the Kerala Police Manual, particularly Chapter VII since Police are expected to obey the mandate of the manual.  The conclusion in the preceding para is supported by para 306 (5) which states, inter alia, that as soon as the report has been entered in the F.I.R. book, the substance thereof must be entered in the G.D.

Object  of  F.I.S.

9. The object of F.I.S. is to set the criminal law in motion in regard to cognizable offences.₇  An early F.I.S. can imply that the implication of accused in the case is not an afterthought.8 Information which discloses commission of a cognizable offence must be treated as “information” that is, F.I.S. under Section 154 of the Code.  It does not matter if the informant is an eye-witness or not.  F.I.S. need not contain all the details of the occurrence, such as, manner and details of occurrence, participation in the crime, etc.₉ Telephone information received by the S.H.O. without any details regarding identity of the accused or nature of the injuries caused to victims and also names of the assailant is not to be treated as F.I.S. though proper telephonic information can be recorded as F.I.S. on the basis of which F.I.R. can be registered.₁₀  Cryptic information over the telephone or by telegram cannot be regarded as F.I.S..₁₁

10. In appropriate cases, an entry in the general diary can be treated as F.I.S. if it discloses commission of a cognizable offence.₁₂  F.I.S. is to be recorded first and thereafter an entry is to be made in the Station House Diary (SHD).  Hence, the truth of the contents of the F.I.S. cannot be tested with reference to such entries. When the entries in the F.I.S. and SHD are totally contradictory, there could be serious doubt regarding the genuineness of the diary entries.₁₃  Omission of the name of the assailant in the F.I.S. is material unless the informant is not an eye-witness or if an eye-witness is not aware of his name.₁₄ Omission of important facts in the F.I.S. given by an eye-witness has some significance.₁₅  If the F.I.S. is based on hearsay, there may be omission of some facts and no suspicion can be attached to the F.I.S..₁₆ Non-mention, of the name of the assailant in the F.I.S., if properly explained, is not significant.₁₇ Omission of the names of eye-witness is relevant, but is not by itself, decisive.₁₈ Non-mention of a dying declaration in the F.I.S. cannot lead to disbelief of the dying declaration.₁₉  Every omission to mention a fact is not of any consequence as it could be due to disturbed physical and mental condition of the informant.₂₀ 

Credibility of eye-witnesses cannot be doubted merely because their names are not mentioned in the F.I.S..₂₁  Such an omission may lead to some suspicion, but if the informant is not an eye-witness or is a close relation who was in disturbed state of mind, the omission may not matter. If the witnesses were questioned without delay, their presence at the scene of occurrence can be accepted.₂₂  Regarding the absence of reference to the existence of light in the F.I.S., see Jaishree Yadav v.. State of U.P.₂₃

Substantive   Evidence

11. Substantive Evidence is the evidence which directly tends to prove a fact in issue or relevant fact (Section 5, Indian Evidence Act).  Thus eye-witnesses who directly speak to the events in an occurrence as also witnesses who directly speak to facts declared to be relevant under Chapter II of the Indian Evidence Act, furnish substantive evidence. Ordinarily F.I.S. cannot be substantive evidence. A few sections in Chapter II of the Indian Evidence Act provide exceptions to this rule regarding substantive evidence.  Take a case where the accused, after apparently committing the crime, appears in the police station with blood stained weapon and blood stains on his clothes and gives information to the police about the offence committed by him.  Since the information furnished by him to the SHO discloses commission of a cognizable offence, it has to be recorded as F.I.S. and a case duly registered.  But the confession part of the F.I.S. cannot be looked into by a court in view of the bar under section 25 of the Indian Evidence Act. Nevertheless, his conduct in appearing before the SHO and giving information, read along with the inevitable seizure of the weapon and the blood-stained shirt constitute significant subsequent conduct of the accused which is relevant under section 8 of the Indian Evidence Act. 

If the accused has stated in the F.I.S. that he kept the weapon at a particular place and the police recovered the weapon from that place, the evidence regarding that part of the statement coupled with the actual recovery would be relevant under section 27 of the Indian Evidence Act.  Confession, irrelevant under section 24 of the Indian Evidence Act, may be proved if the conditions mentioned under section 28 of that Act are shown.  If the F.I.S. by an accused contains an admission (not confession) of any relevant fact, that could be looked into under section 21 of the Indian Evidence Act. 

If the F.I.S. is given by the injured victim who succumbs to the injury in the hospital later on, the statement in the F.I.S. relating to the occurrence may amount to dying declaration which is rendered relevant u/S.32(1) of the Indian Evidence Act.  Therefore such parts of F.I.S. as referred to herein above, if proved, would be substantive evidence against the accused.  In no other case can any part of F.I.S. be treated as substantive evidence against the accused.

12. Defect or omission in F.I.S., cannot, by itself, create a reasonable doubt regarding commission of the offence by the accused or regarding proof of ingredients of the offence, that is, actus reus or mens rea.  Such defects will, ordinarily put the Court on its guard and make the Court subject the evidence and probabilities to closer scrutiny.  If the nature and quality of prosecution evidence is of such quality as to overcome the effect caused by the defects in the F.I.S., such defects cannot really matter.

Other  Uses  of  F.I.S.

13. However, F.I.S. or parts thereof can be used for corroboration under section 157 of the Indian Evidence Act  of the evidence given by the informant in court.  The same can be used also for contradicting the evidence of an informant under sections 145 r/w. S. 155 of the Indian Evidence Act.  For this purpose, significant omissions can be treated as contradictions, provided the omission amounts to a contradiction. The Court cannot be fastidious with mere omissions in the F.I.S. since F.I.S. cannot be regarded as a chronicle of every detail of what happened.  The informant need not necessarily have psychological ability to reproduce the details of the entire story without missing anything therefrom.  Some informants may even miss important details.  Quite often the police officer who takes down information may merely record what the informant tells him, without resorting to any elucidatory exercise.  F.I.S. is voluntary information possibly without interrogation. The informant may not know what details to mention or not to mention. Therefore, any omission therein has to be considered along with other evidence to determine whether the fact so omitted in the F.I.S. never happened at all. F.I.R. need not be an encyclopedia of all the facts and circumstances.

Where F.I.S. fails to name the accused but informant named him at the next earliest opportunity when case diary statement was recorded u/s. 161 of the Code, the omission in the F.I.S. cannot tilt the balance in favour of the accused.₂₄ That the injured witness did not apparently tell the doctor the names of the assailants, but merely said that the workers of the named political party were responsible, is of no importance since the assailants and the injured persons belong to rival political parties and since it is not the function of the doctor to record the names of the assailants. That the injured (first informant) did not mention the presence of the eye witnesses in the F.I.S. is relevant, but not by itself decisive.₂₅  Credibility of witnesses cannot be doubted merely because their names are not seen mentioned in F.I.S..₂₆ There can be some suspicion, but if the informant was not an eyewitness, or was a close relative who was in a disturbed state of mind, the omission may not matter.  If the statements of eye-witness were recorded without delay, immediately after investigation started, their presence at the scene can be accepted.₂₇

14. In order that an omission should amount to a contradiction, the omission should clearly suggest the opposite of what was stated in the evidence of the informant and such omission should also be significant. Omissions regarding insignificant details cannot be treated as contradictions.  For that matter, insignificant contradictions also cannot be regarded as contradictions for the purpose of the provisions of the Evidence Act.

15. F.I.S. is required to contain only the bare prosecution case and not the details. Even if the F.I.S. did not name the accused, his identity can be proved by relying on satisfactory evidence.  Non-mention of motive in the F.I.S. cannot be regarded as an omission to state an important material fact so also omission to give details of the manner in which the weapon was used or the absence of information about the source of light for identifying the assailants, since the F.I.S. is the first word and not the last word in the prosecution case.  In certain cases a very detailed F.I.S. could be a ground for suspicion.

16. A contradiction in the F.I.S. cannot be used unless the attention of the witness has been first drawn to it.₂₈

Delay  in  Lodging  F.I.S.

17. Prompt F.I.S. serves a useful purpose. Delay provides opportunity to introduce embellishments or afterthoughts and deprive the F.I.S. of the advantage of spontaneity and may involve danger of coloured version or an exaggerated or concocted story or of introducing embellishments as a result of deliberation and consultation. Therefore, a salutary principle has been evolved to the effect that the delay must be satisfactorily explained. However, delay does not automatically render the prosecution case doubtful. Whether the case is doubtful or not depends upon the facts and circumstances of each case. If the delay is satisfactorily explained, the consequence is that the disadvantage for the prosecution on account of delay is removed. 

The delay may arise for several reasons, such as the condition of the informant, nature of the injury, number of victims, time taken to provide medical aid to the injured, the distance to the hospital or the police station, the time of the occurrence, availability of transport facility and availability and readiness of a suitable person to go to the police station.₂₉  The effect of unexplained delay is to put the Court on guard and to consider if any explanation has been offered for such delay.  If an explanation is offered, the Court has to consider whether it is satisfactory.  If explanation is not offered or if the offered explanation is not satisfactory, it may imply that there was opportunity to include an embellishment and exaggeration and Court has to consider this aspect before relying on the evidence of prosecution. 

The Court must be very careful in considering this aspect in offences against women in a tradition bound society like the Indian Society. Delay in lodging the F.I.S. in regard to such offences may arise due to the desire to postpone or avoid embarrassment which is inevitable when reputation of the girl or woman concerned is at stake.  Such delay in rape cases is a normal phenomenon.  Judicial notice can be taken of the fact that ordinarily family of the victim would not be prepared to lodge F.I.S. readily so as to avoid a stigma being attached to the victim.₃₀   In case where a child is kidnapped much time could be spent by the close relations of the child in taking various steps to search for the victim₃₁.  Delay in F.I.S., by itself does not vitiate the evidence of the informant.₃₂  Expeditious lodging of F.I.S. rules out possible deliberation to falsely implicate anyone.₃₃

18. Prompt F.I.S. with relevant particulars of the occurrence, assailants, weapons used and witnesses is a vital, valuable circumstance for appreciating the evidence led at the trial. Yet even a prompt F.I.S. is no full-proof guarantee of the genuineness of the version contained therein.  Delay in lodging the F.I.S. need not necessarily be fatal to the prosecution.  Mere delay does not render the prosecution version doubtful.  While unexplained delay in lodging F.I.S. is by itself not fatal, such delay is a relevant fact which the Court has to consider, in the light of other facts and circumstances of the case. It is a matter of evaluation of evidence. Even where there is absence of direct evidence explaining any delay, there may be circumstances appearing on record, which provide a reasonable explanation for the delay.  There may be members of lower strata of society who may not be aware of their right to report the matter to the police.  Proper advice may not be available to them.₃₄  Even a long delay may be overlooked if the eye-witnesses have no motive for falsely implicating the accused and there is plausible explanation for the delay.₃₅  Sometimes close relations of the injured or the deceased may be afraid to go to the police.₃₆  In the case of deliberate delay the Court has to carefully examine the facts before it since it is possible that the complainant’s party may initiate criminal proceedings merely to harass other side.₃₇ 

Even in case of unexplained delay in lodging F.I.S., the quality of evidence given by the informant and the eyewitnesses or circumstantial evidence available in the case may outweigh any suspicion which might arise in the mind of the Court on account of such delay.  Unexplained delay in the F.I.S. is, by itself, not a ground for acquittal.  Whether reasonable doubt arises in a case depends on the appreciation of the entire evidence and circumstances placed before the court.

The Court which considers the evidence in a case has a duty to consider the explanation offered and satisfactory or unsatisfactory nature of the explanation or the absence of an explanation.  Nevertheless the Court should also bear in mind creditworthiness of the occular evidence produced by the prosecution and see if such evidence is worthy of acceptance.

Delay  in  Forwarding  F.I.R.  to  Magistrate

19. While section 154 of the Code itself does not require the police officer to forward an F.I.R. to the Magistrate concerned, section 157 of the Code states that the officer “shall forthwith send report of the same to the Magistrate empowered to take cognizance of such offence upon a police report”;  the “report” referred to is the F.I.R.. It is therefore clear that the F.I.R. should be forwarded to the Magistrate with all expedition. 

The Station House Officer, who makes arrangement for dispatching F.I.R. to the Magistrate concerned, has a duty to explain the reasons for the delay in doing so.  Column 13 of the F.I.R. form requires the officer to indicate the date and time of dispatch to the Court and name of the PC/HC who carried the F.I.R. to the Court. The Court should consider the explanation offered, if any, in the light of objective factors present in the policing system and the fact that SHOs and their subordinates have multifarious duties thrust on them in the present day world.

20. Such unexplained delay, by itself, cannot raise a reasonable doubt regarding the truth of the charge. Such delay merely means that police might have ante-dated or ante-timed the F.I.R. That an F.I.R. loses its authority if it is lodged after inquest report is not a general preposition of universal application. Object of inquest is to ascertain whether a person died under unnatural circumstances and if so, what the cause of death is?  If a police officer, having reason to suspect the commission of a cognizable offence, proceeds to the spot without preparing and sending a report to the Magistrate concerned,  that does not mean that his proceeding to the spot is not for investigation.  It is not absolutely necessary that a formal registration of a case should have been made before proceeding to the spot, in order to bring inquest proceedings within the ambit of investigation.  It is enough that he has some information to afford him reason to suspect the commission of a cognizable offence.  Any step taken by him, pursuant to such information, towards the detection of the said offence, would be part of the investigation even though the formal registration of the F.I.R. takes place only thereafter.₃₈

21. In considering the effect of delay in the F.I.R. reaching the Magistrate, the Court has to bear in mind the creditworthiness of the occular evidence before it and see if such occular evidence is worthy of acceptance.  If the occular evidence inspires confidence, the element of delay in recording F.I.S., registering F.I.R. or sending F.I.R. to the Magistrate, by itself or themselves would not weaken the prosecution case.₃₉  Where the F.I.R. contained only a brief statement of facts, the delay in sending the F.I.R. to the Magistrate could not be to enable the prosecution to concoct a false case against the accused.

If the F.I.R. reached the Magistrate after inquest and autopsy, many details could have been incorporated in the F.I.R. The absence of such details in the F.I.R. can probablise the fact that the F.I.R. was not ante-dated.₄₀  The suspicion that could be raised by F.I.R. being sent to the Magistrate belatedly without a proper explanation, therefore, could be that FIR was actually recorded much later to set up a distorted version₄₁.  Such delay, by itself, cannot be sufficient to throw out the prosecution case in its’ entirety. Delay in filing F.I.S. or sending F.I.R. to Court cannot be the sole basis for discarding the prosecution version as being fabricated, if the prosecution has produced reliable evidence against accused.  The purpose of section 157 Cr.P.C. is to ensure a fair trial without there being any evidence of falsification or belated introduction of facts.₄₂

The element of delay in registering the F.I.R. and sending the same to Magistrate by itself would not in any manner weaken the prosecution case.₄₃  Where there was such delay in the F.I.R. being sent to the Court when the contention was that the delay was to enable the investigator to concoct a false case against the accused, since the F.I.R. contained only brief statement of events, Supreme Court opined that if the F.I.R. had been prepared after inquest and autopsy were over (as alleged in the case), F.I.R. would not be a brief one but would contain more matters and more materials and delay in such circumstances cannot, by itself, throw out the prosecution case.₄₄ 

 22. In a case where there was delay of four days in sending the F.I.R. to the Magistrate, factors such as immediate holding of inquest, removal of dead body to police premises and immediate authorization by D.M.O., to conduct autopsy during the same night clearly suggest spontaneity of the F.I.S. and plea of ante-timing of the F.I.R. has to fail.₄₅  Delay in forwarding F.I.R. to Magistrate or suspicion of manipulation of documents prepared during initial investigation would not dislodge the documentary and oral evidence indicating spontaneity of the lodging of F.I.S..₄₆

Analysing Tax Phobia

(By Jayasankaran Nambiar A.K., Senior Advocate, High Court of Kerala)

The taxman is an abhorred person and, perhaps, for a valid reason. He is a person who arrives, armed with the authority of law, to take money away from a person who has it. The animosity against taxes is a shared one and the oft-quoted expression by Benjamin Franklin that “in this world nothing can be said to be certain, except death and taxes” echoes the sentiments that successive generations of people have harboured against taxes. I have often wondered whether our feelings would have been otherwise if we had a different perspective of the taxman - one that saw him as a facilitator for the payment of tax by a willing citizen and a recovery officer only for the habitual and incorrigible dodgers.

Needless to say, a proper understanding of the concept of taxation in a democratic society does influence one’s attitude and tolerance to the system of taxation that prevails therein. As students of tax, we are taught that a tax is a compulsory exaction of money from a citizen and the concept of quid pro quo is wholly alien to the concept of a tax. This conceptualization of a tax as a forced levy inevitably leads one to adopt a defensive stance whenever the tax department raises a query -- sometimes even an innocuous one! How accurate, though, is this definition of tax? Is a tax really an exaction of money from the citizens?

The origins of a democratic system of taxation date back to the period when people decided to organize themselves into groups or societies for the mutual benefit of all. In such an organization, a tax was seen as an amount that was determined as payable by each member of the group as his/her contribution for the shared expenses of that group -- expenses that were required to be incurred for the benefit of all. In this sense, therefore, the payment of the amount was voluntary since it was a condition for continuing as a member of the group. The tax collector was a person nominated as such for collecting the money payable by a member of the group. Thus, the nomination of the person, as well as the conferment of powers on him, was with the express consent of the persons who constituted the society, the governance of which was sought to be financed by the amounts collected.

The “consent” of persons in a society, to the system of taxation prevailing therein, continues to provide the “justification” for the taxation system in modern democratic societies as well. The difference, however, lies in the nature of such consent. While in primitive societies the participation of the people in governance was more “direct” and “proximate”, the same cannot be said of the system of governance prevalent in modern societies. The “distancing” of the people from the act of governance has resulted in their consent to governance being “indirect” thereby leading to a perception of a tax as something to which they have not given their direct or active “consent”. Over time, this perception leads one to believe that a tax is something that is exacted from them - against their will.

Truth be told, however, the system of taxation in our country does have its foundation in the consent of “We, the people of India”. The mere fact that vast majorities of our people, not active in politics, have chosen to play an indirect role in matters of governance, cannot obliterate this truth. The Preamble of our Constitution declares that the Constitution is one that is given by the people of India to themselves. The laws enacted by the Parliament and the State Legislatures trace their legal validity to the provisions of the Constitution and hence the taxes imposed by these legislative bodies have the backing of validly enacted law. The Constitution itself re­iterates this principle when it states, in Art.265, that there shall be no imposition of tax save by authority of law.

Given that the levy of tax has its origins in a consent that is traced to the citizens of our country, what is it that is so obnoxious about a tax? After all, people cannot complain about something to which they have willingly subjected themselves. My belief is that the real problem lies in the manner in which the system of taxation is administered in our country. My experience with tax litigation leads me to believe that an honest and efficient tax administration can bring about a substantial decline in litigation in this area of law and ensure happiness matching utilitarian expectations. But that just doesn’t seem to be happening, as yet, in our country.

To illustrate the point, let us look at a basic requirement of a tax regime viz. assessment. Tax assessments often begin with the filing of some sort of return by the assessee. This is nothing but a declaration by the assessee of his tax liability, based on facts and figures within his knowledge, pertaining to the taxable event. The assessee, based on his understanding of the law, makes the declaration and in this exercise a lawyer or an accountant often assists him. The return submitted by the assessee is either accepted as such by the assessing officer nominated by the department concerned or subjected to a scrutiny by him. If the department feels that certain clarifications are required, it is expected to discuss the same with the assessee and then finalise the assessment. The entire exercise seems effortless but, in reality, things can get very complicated.

For a start, the assessing officer works on a tight schedule and he is expected to complete assessments within a time frame. Add to this the pressure that mounts on him towards the end of a financial year when he is asked to achieve “targets” of revenue collection. The anxiety brought about by this work environment, together with the zest for achieving the target, leads to assessments becoming a mechanical exercise -- one in which the assessing officer is not interested in hearing legal justifications for non-payment of tax but is more interested in confirming tax demands - even illegal ones - to achieve targets. It is pointless to find fault with the tax officers alone, for the system is such that there is no incentive to finalise an assessment legally and correctly whereas reaching targets earns accolades for the officer, who is then termed “efficient”.

I have never understood this concept of target setting that has been consistently and relentlessly pursued by revenue departments over the years. The targets “achieved” by the end of a financial year, often get “erased” when the appeals are heard by the appellate authorities and if the demand against the assessee is set aside by the said authorities. Economically, it is a nightmare when one considers that money rightly belonging to an assessee is either retained by the department or locked up in litigation till the verdict in favour of the assessee at a later point in time. I would have thought that any impediment to efficient and meaningful adjudication would have met with the disapproval of administrators, but that is obviously not the case. Adjudication at the lower levels has become ritualistic and mechanical thanks to a senseless obsession with targets!

What is described above is just one of the facets of tax administration and something that happens at the base level. Similar problems exist even in the higher levels of tax adjudication. Surprisingly, targets seem to act as incentives even for first level appellate authorities. Effective and unbiased adjudication often takes place only at the second appellate level. This factual situation throws to the winds the concept of a multi-tier adjudication system and entails a phenomenal waste of money by way of litigation expenses. The exasperation of an assessee, in such a situation, comes as no surprise.

Increase in litigation is a reliable indicator of administrative inefficiency. People choose to spend their time more productively than in the pursuit of unnecessary tax litigation and providing citizens with clarity in matters of taxation forms an indispensable part of a fair tax administration. While, it must be said, to the credit of the revenue, that certain departments have taken the initiative to publish manuals outlining the nature of the tax and the policy changes justifying amendments to statutory provisions, there is still a lot to be done to ensure clarity. People have a right to know, sufficiently in advance, what their tax liability in the coming year would be. This is necessary for them to plan their lives. Steps have also to be taken to ensure that adjudication is reduced to a minimum and, if unavoidable, effective and meaningful at each stage. This can be done by insulating adjudicating officers from needless pressures so that they can apply their mind to the problem at hand and ensure that the citizen is not deprived of anything more than what is legally due from him. Equally important is the necessity to let people know how the money, collected as taxes, is proposed to be spent or actually spent. Taxes collected have to be dealt with on the principles applicable to Trusts and the administrators have a duty to account to the taxpayer as to how the money collected has been spent. Such measures, among many others, will inspire the citizens’ confidence in the tax administration and, in time, we might just stop frowning when we meet the taxman!