When the police officer has reason to suspect the commission of a cognizable offence, he should immediately send a report of the circumstances creating the suspicion to a Magistrate having jurisdiction to take cognizance of such offence.
The object of sending such report to the Magistrate is to keep him informed about the investigation of such cognizable offence by the police so that he may be able to control investigation and give appropriate directions under Section 159, if deemed necessary.
Commenting on the importance of prompt despatch of a copy of the FIR to the Magistrate having power to take cognizance of such an offence, the Supreme Court in Alia China Apparao v. State of Andhra Pradesh, has observed that the expression ‘forthwith’ used in Section 157 (1) does not mean that “the prosecution is required to explain every hour’s delay in sending the FIR to the Magistrate, of course, the same has to be sent within a reasonable time in the circumstances prevailing. Also, same cannot be a ground for throwing out the prosecution case if it is otherwise trustworthy upon appreciation of-evidence which is found to be credible. However, if it is otherwise, an adverse inference may be drawn against the prosecution and the same may affect veracity of the prosecution case, more so when there are circumstances from which inference can be drawn that there were chances of manipulation in the FIR by falsely roping in the accused persons after due deliberations.”
In the case of Pala Singh v. State, the Supreme Court held that the mere fact of the delayed receipt of the report by the Magistrate cannot by itself lead to the conclusion that the investigation was tainted, if there be no prejudice caused to the accused on that count.
Where in a case of murder, the FIR was lodged immediately after the occurrence and investigation was started forthwith, it was held that delay in despatch of FIR to the
Magistrate would not affect the prosecution case unless any prejudice is caused to the accused because of such delay in sending the FIR.
In Yelchuri Manohar v. State of Andhra Pradesh, the accused had hacked his classmate on head and caused her death in college campus. Students and women organisation took to streets, created law and order problem in entire city. Six hours delay in F.I.R. reaching Magistrate in such tense situation was held not fatal, when it was explained properly.
Where formal F.I.R. along-with written report was received in Court after five days of institution of case and no evidence was given for explaining such delay, it was reasonable to presume that the written report was definitely ante-timed and therefore finding of guilt against the accused was unsustainable. Further, Section 157 casts a duty upon the Investigation Officer to forthwith send the report of the cognizable offence to the concerned Magistrate empowered to take cognizance of the case.
In the case of Badi Guravaiah v. State of Andhra Pradesh, the FIR when lodged was first registered under Section 324, IPC but subsequently after four days it was altered to Section 302, IPC due to death of the victim and the report was immediately despatched to the Magistrate, the Court held that the delay in despatch of the report would affect the prosecution case adversely in the given circumstances of the case.
The Supreme Court in Rabindra Mehto v. State of Jharkhand reiterated that mere delay in recording of F.I.R. and sending the same to Magistrate is not a circumstance to discard prosecution case in its entirety. No doubt Section 157, Cr. P.C. requires sending of an F.I.R. to the Magistrate forthwith promptly and without undue delay but lacuna in this regard on the part of prosecution would not be sole basis for throwing out the entire prosecution cases alleging it to be fabricated.
In the instant case, the court observed that after going through the material on record, the prosecution had led reliable evidence the veracity of which was not dislodged by delay in recording the F.I.R. and sending the same to the Magistrate. The Court held that at best, it could be taken to be an infirmity in investigation.
The Apex Court in State of Jammu and Kashmir v. S. Mohan Singh once again emphasized that delay in sending copy of F.I.R. to Magistrate is not fatal and the prosecution case should not be discarded on this sole ground. In this case, F.I.R. was recorded in the evening but copy of it was not sent to Magistrate at his residence during night hours and it was sent at earliest on next day morning.
The Court rejected the defence plea that the delay had rendered the prosecution case worthy of being discarded and held that the prosecution case cannot be thrown out solely on this ground, particularly when in fact, there was no delay in the instant case, much less inordinate delay.
In the ultimate analysis, it may be stated that mere delay in sending FIR to the Magistrate does not necessarily make its genuineness doubtful, unless it adversely affects the accused person.
The Courts have consistently taken a view that since FIR is not a substantive piece of evidence, any indolence or delay on the part of police in its despatch to Magistrate under Section 157, Cr PC, would not cast a shadow of doubt on the prosecution story when it reveals credible evidence before the Court.
In State of Haryana v. Bhajanlal, the Apex Court observed that “the police have unfettered powers of investigation of cognizable offences in accordance with Chapter XII of the Code of Criminal Procedure and the Courts are not justified in obliterating the track of investigation. But if the police officer transgresses the circumscribed limits and improperly and illegally exercises his powers, then the Court has to consider the nature and extent of the breach and pass appropriate orders.”
Sub-section (2) makes it obligatory for the police officer that in cases in which no investigation is made, he shall state the reasons for doing so, in his report to be sent to the Magistrate.