Supreme Court: When a First Information Report is delayed and is ante-timed and ante-dated, it loses its value

 Investigation of the case was conducted by PW-4 in a slip-shod manner. PW-4 did not explain as to why the original general diary was not produced. In terms of the Police Act, a copy of the statement of the First Information Report is required to be handed over to the informant. First Information Report was required to be taken down in the general diary. Production of the general diary was necessary as the First Information Report was said to be ante-timed and ante-dated. The learned Trial Judge categorically opined the same to be so. No explanation has been given as to why the independent witnesses whose statements had allegedly been recorded were not examined. There was no reason as to why the statement of the PW-2 was taken after such a long time although according to the medical report he was not unconscious as would be evident from the fact that his left thumb impression was taken in the hospital register. If PW-2 was taken within a few minutes to the District Hospital, the doctor incharge must have informed the police. The Investigating Officer does not say so. He had not made any attempt to apprehend the culprits immediately. There is absolutely no reason as to why in a case of grave nature, a copy of the First Information Report was sent to the Circle Officer, 4 days after the incident and to the court 8 days thereafter. Section 157 of the Code of Criminal Procedure mandates that the First Information Report should be sent to the nearest magistrate within a period of 24 hours. The incident took place at Gorakhpur which is a District Town. Section 147 of the Police Act and the Rules framed thereunder provide for safeguards for the accused persons from false implication. The legal requirements were not complied with. This Court in Meharaj Singh v. State of U.P.   MANU/SC/0787/1994 : 1995CriLJ457 stated the law, thus:

FIR in a criminal case and particularly in a murder case is a vital and valuable piece of evidence for the purpose of appreciating the evidence led at the trial. The object of insisting upon prompt lodging of the FIR is to obtain the earliest information regarding the circumstance in which the crime was committed, including the names of the actual culprits and the parts played by them, the weapons, if any, used, as also the names of the eyewitnesses, if any. Delay in lodging the FIR often results in embellishment, which is a creature of an afterthought. On account of delay, the FIR not only gets bereft of the advantage of spontaneity, danger also creeps in of the introduction of a coloured version or exaggerated story. With a view to determine whether the FIR was lodged at the time it is alleged to have been recorded, the courts generally look for certain external checks. One of the checks is the receipt of the copy of the FIR, called a special report in a murder case, by the local Magistrate. If this report is received by the Magistrate late it can give rise to an inference that the FIR was not lodged at the time it is alleged to have been recorded, unless, of course the prosecution can offer a satisfactory explanation for the delay in despatching or receipt of the copy of the FIR by the local Magistrate. Prosecution has led no evidence at all in this behalf. The second external check equally important is the sending of the copy of the FIR along with the dead body and its reference in the inquest report. Even though the inquest report, prepared under Section 174 CrPC, is aimed at serving a statutory function, to lend credence to the prosecution case, the details of the FIR and the gist of statements recorded during inquest proceedings get reflected in the report. The absence of those details is indicative of the fact that the prosecution story was still in an embryo state and had not been given any shape and that the FIR came to be recorded later on after due deliberations and consultations and was then ante-timed to give it the colour of a promptly lodged FIR. In our opinion, on account of the infirmities as noticed above, the FIR has lost its value and authenticity and it appears to us that the same has been ante-timed and had not been recorded till the inquest proceedings were over at the spot by PW 8. {Para 12}

 IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 1644 of 2005

Decided On: 24.08.2006

Jagdish Murav Vs. State of U.P. and Ors.

Hon'ble Judges/Coram:

S.B. Sinha and Dalveer Bhandari, JJ.

Author: S.B. Sinha, J.

Citation: (2007) 2 SCC (Cri) 234, AIRONLINE 2006 SC 577,MANU/SC/8439/2006

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What is the Difference between a General Diary Entry and an FIR?

General diary (GD) entry or Daily diary entry is made when any kind of complaint is lodged & police enter the details in their records.Thereafter,if police believe that there is some prima facie evidence of a cognizable offense being committed, it is registered as FIR.

If the complaint made is relating to non-cognizable offense, General diary entry will still be made,but thereafter,it will be entered into a non-cognizable report.General diary entry is, therefore, a stage prior to FIR or non-cognizable report.General diary entry is an internal police record,while in case of FIR or non-cognizable report,a copy of these will be provided to the Complainant.

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Whether prosecution can be quashed on ground that entry in respect of FIR is not taken in General Diary?

 In light of the discussion above, the absence of entries in the
General Diary concerning the preliminary enquiry would not
be  per se  illegal. Our attention is not drawn to any bar
under any provision of CrPC barring investigating authority
to investigate into matter, which may for some justifiable
ground, not found to have been entered in the General Diary
right after receiving the Confidential Information. It may not
be   out   of   context   to   mention   that   nothing   found   in   the
paragraph   120.8  of   the  Lalitha   Kumari   Case  (Supra),
justifies   the   conclusion   reached   by   the   High   Court   by
placing   a   skewed   and   literal   reading   of   the   conclusions
reached   by   the   Bench   therein.   It   is   well   settled   that
judgments are not legislations, they have to be read in the
context and background discussions [refer Smt. Kesar Devi
v. Union of India & Ors., (2003) 7 SCC 427]. 
18. As the concept of maintaining General Diary has its origin
under the Section 44 of Police Act of 1861 as applicable to
States, which makes it an obligation for the concerned Police
Officer   to   maintain   a   General   Diary,   but   such   non maintenance
 per   se  may   not   be   rendering   the   whole
prosecution   illegal.   However,   on   the   other   hand,   we   are
aware of the fact that such non­maintenance of General
Diary may have consequences on the merits of the case,
which is a matter of trial. Moreover, we are also aware of the
fact that the explanation of the genesis of a criminal case, in
some   cases,   plays   an   important   role   in   establishing   the
prosecution’s   case.   With   this   background   discussion   we
must observe that the binding conclusions reached in the
paragraph  120.8  of  Lalitha  Kumari  Case  (Supra) is an
obligation of best efforts  for the concerned officer to record
all   events   concerning   an   enquiry.   If   the   Officer   has   not
recorded, then it is for the trial court to weigh the effect of
the same for reasons provided therein. A court under a writ
jurisdiction or under the inherent jurisdiction of the High
Court is ill equipped to answer such questions of facts. The
treatment provided by the High Court in converting a mixed
question of law and fact concerning the merits of the case,
into a pure question of law may not be proper in light of
settled jurisprudence. 
19. Our conclusion herein is strengthened by the fact that CrPC
itself has differentiated between irregularity and illegality.
The obligation of maintenance of General Diary is part of
course of conduct of the concerned officer, which may not
itself have any bearing on the criminal trial unless some
grave prejudice going to the root of matter is shown to exist
at   the   time   of   the   trial.1
  Conspicuous   absence   of   any
provision under CrPC concerning the omissions and errors
during  investigation  also   bolsters  the  conclusion  reached
herein.2

REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
    CRIMINAL APPEAL NO.775/2018

State by Lokayuktha Police Vs  H. Srinivas  
  Dated:MAY 18, 2018.

    N. V. RAMANA., J.

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Whether accused can be permitted to call general police diary?

However, in so far as General Diary is concerned, Section

  12 of the Police Act, 2011 ( Kerala ) would give an idea as

  to its purpose and intent.      It reads as follows:


              S.12. Police Station Diary:
              Every police station shall keep a general
              diary in such form as may be fixed by the
              government from time to time and record
              therein the substance of all complaints
              made, first information reports, charges,
              the names and details of complainants,
              opposite parties and all arrested persons,
              the details of the offences charged
              against them, and properties including
              weapons that may have been seized from
              their possession or otherwise.


12.Thus it is pellucid that the General Diary maintained at

  the Police Station is different from the Diary which is

  required to be maintained by the Police Officer who is

  making investigation under chapter XII of the code.


13.This misconception was taken note of by the Apex Court

  in Shamshul Kanwar V State of U.P. (AIR 1995 SC

  1748 ) and in paragraph No. 12 of the judgment has held

  that the General Diary as well as the diary maintained


  under Section 172 of the Code are essentially different.


14.What has now been sought for by the petitioner is the

  copies of the entries in the general diary maintained in the

  Police Station and not the Diary maintained by the

  investigating officer. The Station house officer of the

  Sultan Bathery Police Station was not conducting the

  investigation under Chapter XII. The embargo placed

  under Section 172 (3) of the Code will not apply to the

  General Diary maintained in the Police Station. The finding

  of the learned Additional Sessions Judge that the General

  Diary maintained by the Station house officer is one

  maintained under Section 172 of the Code is clearly

  erroneous.
IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                                     PRESENT:

                 MR. JUSTICE RAJA VIJAYARAGHAVAN V

                14TH DAY OF OCTOBER 2016
                   Crl.MC.No. 6069 of 2016 


                SHIJU.P.T. Vs STATE OF KERALA,
           Citation: 2017 CRLJ(NOC)93 Ker

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