f. Whether F.I.R. was lodged on 24-10-2006 and whether mandatory provision of Section 157 of Cr.P.C. was complied with, and whether the said F.I.R. was ante-dated and ante-timed?
According to the prosecution story, on production of letter Ex. P.1 by Rambaran (P.W.1) on 27-10-2006, a F.I.R. Ex. P.14 was lodged. It is mentioned in the F.I.R. that a copy of the same is sent to Special Judge, Bhind. However, no document has been filed to show that a copy of the F.I.R. was sent to the Special Judge, Bhind. D.J. Rai (P.W.8) has accepted in his cross examination that he has not produced any acknowledgment of receipt of carbon copy of F.I.R. by the Court of competent jurisdiction. Thus, it is clear that the prosecution has failed to prove that a copy of the F.I.R. was ever sent to Special Judge (M.P.D.V.P.K, Act), Bhind as required under Section 157 of Cr.P.C.
Further D.J. Rai (P.W.8), who is the investigating officer, has stated in para 2 of his examination in chief that as the names of Gappe, Raju and Satpal Lodhi were mentioned in letter Ex. P.1, therefore, F.I.R. Ex. P.14 was lodged against Gappe, Raju and Satpal Lodhi. However, in para 10 of his cross examination, this witness has admitted that the name of Gappe was not mentioned in letter Ex. P.1. He further admitted that the name of Gappe was also not mentioned in letters Ex. P.4 and P.5. Thus, where the investigation officer, D.J. Rai (P.W.8) has specifically stated that he had registered the case against Gappe on the basis of the letter Ex. P.1 and whereas letter Ex. P.1 does not contain the name of Gappe, then it becomes doubtful that whether the F.I.R. was actually registered on 27-10-2006 or not? According to the prosecution case, Praveen (P.W.3) and Jitendra (P.W.4) came back to their house on 6-11-2006 and only then the name of Gappe came in the light. Further D.J. Rai (P.W.8) who had investigated the matter had denied the suggestion in para 11 of his cross examination that the name of Gappe was never disclosed by Rambaran (P.W.1), however, from the case diary statement of Rambaran Ex. D.1 as well as the Court evidence of Rambaran (P.W.1), it is clear that he had never named Gappe. Thus, the denial of suggestion by D.J. Rai (P.W.8) that the name of Gappe was never disclosed by Rambaran (P.W.1) is false.
The Supreme Court in the case of Shivlal Vs. State of Chhatisgarh, reported in (2011) 9 SCC 561 has held as under :
“8. This Court in Bhajan Singh v. State of Haryana [(2011) 7 SCC 421] has elaborately dealt with the issue of sending the copy of the FIR to the Ilaqa Magistrate with delay and after placing reliance upon a large number of judgments including Shiv Ram v. State of U.P. [(1998) 1 SCC 149] and Arun Kumar Sharma v. State of Bihar [(2010) 1 SCC 108] , came to the conclusion that CrPC provides for internal and external checks: one of them being the receipt of a copy of the FIR by the Magistrate concerned. It serves the purpose that the FIR be not ante-timed or ante-dated. The Magistrate must be immediately informed of every serious offence so that he may be in a position to act under Section 159 CrPC, if so required. The object of the statutory provision is to keep the Magistrate informed of the investigation so as to enable him to control the investigation and, if necessary, to give appropriate direction. However, it is not that as if every delay in sending the report to the Magistrate would necessarily lead to the inference that the FIR has not been lodged at the time stated or has been ante-timed or ante-dated or the investigation is not fair and forthright. In a given case, there may be an explanation for delay. An unexplained inordinate delay in sending the copy of the FIR to the Ilaqa Magistrate may affect the prosecution case adversely. However, such an adverse inference may be drawn on the basis of attending circumstances involved in a case.
19. In the instant case, copy of the FIR was not sent to the Magistrate at all as required under Section 157(1) CrPC. In such a case, in the absence of any explanation furnished by the prosecution to that effect, would definitely cast a shadow on the case of the prosecution. This Court dealt with the issue in State of M.P. v. Kalyan Singh, wherein this Court was informed by the Standing Counsel that in Madhya Pradesh, police is not required to send the copy of the FIR to the Ilaqa Magistrate, but it is required to be sent to the District Magistrate. It was so required by the provisions contained in Regulation 710 of the Madhya Pradesh Police Regulations. This Court held that Regulation 710 cannot override the statutory requirements under Section 157(1) CrPC which provide for sending the copy of the FIR to the Ilaqa Magistrate.”
The Supreme Court in the case of State Vs. N. Rajamanickam reported in (2008) 13 SCC 309 has held as under:-
“9. Delay in receipt of the FIR and the connected documents in all cases cannot be a factor corroding the credibility of the prosecution version. But that is not the only factor which weighed with the High Court. Added to that, the High Court has noted the artificiality of the evidence of PW 1 and the non-explanation of injuries on the accused persons which were very serious in nature. The combined effect of these factors certainly deserved consideration and, according to us, the High Court has rightly emphasised on them to hold that the prosecution has not been able to establish the accusations. Singularly, the factors may not have an adverse effect on the prosecution version. But when a combined effect of the factors noted by the High Court are taken into consideration, the inevitable conclusion is that these are cases where no interference is called for.”
The Supreme Court in the case of Ratiram Vs. State of M.P., reported in (2013) 112 SCC 316 has held as under :
“25. We will be failing in our duty if we do not deal with the contention of Mr Khan that when there has been total non-compliance with Section 157 of the Code of Criminal Procedure, the trial is vitiated. On a perusal of the judgment of the learned trial Judge we notice that though such a stance had been feebly raised before the learned trial Judge, no question was put to the investigating officer in this regard in the crossexamination. The learned trial Judge has adverted to the same and opined, regard being had to the creditworthiness of the testimony on record that it could not be said that the FIR, Ext. P-7, was ante-dated or embellished. It is worth noting that such a contention was not raised before the High Court. Considering the facts and circumstances of the case, we are disposed to think that the finding recorded by the learned trial Judge cannot be found fault with. We may hasten to add that when there is delayed dispatch of the FIR, it is necessary on the part of the prosecution to give an explanation for the delay. We may further state that the purpose behind sending a copy of the FIR to the Magistrate concerned is to avoid any kind of suspicion being attached to the FIR. Such a suspicion may compel the court to record a finding that there was possibility of the FIR being ante-timed or ante-dated. The court may draw adverse inferences against the prosecution. However, if the court is convinced as regards the truthfulness of the prosecution version and trustworthiness of the witnesses, the same may not be regarded as detrimental to the prosecution case. It would depend on the facts and circumstances of the case………..”
Thus, it is clear that where there is an omission or delay in sending the copy of F.I.R. to the concerning Magistrate, then the said lapse on the part of the prosecution, by itself would not be sufficient to throw the case of the prosecution being ante timed and ante dated. However, if the surrounding circumstances creates doubt with regard to the prosecution story, then omission in sending the copy of the F.I.R. to the concerning Magistrate would assume importance.
Thus, if the facts of the case are considered in the light of the fact, that mandatory provision of Section 157 of Cr.P.C. was not complied with, it appears that the F.I.R. Ex. P.14 was in fact recorded some time after 6-11-2006 and therefore, the F.I.R. dated 27-10-2006 Ex. P.14, appears to be ante-dated and ante-timed.