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First Information Report Statements
Section 107 does not talk about first information
report (FIR) it only talks about information. But understand here as the
information which is to mean the information report. Information, allegation
and accusation it contains in the police report.
What is contained in police report? (When this report
is made it is only a suspicion)
§ Date
§ Time
§ Subject matter of complaint
§ Who the suspect is
This will be investigated by
the police. Now we move on to look at the features of FIR.
1.
Nature of a
complaint
2.
An allegation
against a suspect that he has committed a crime. (nothing is proven yet)
3.
The allegation
is to be investigated by the police.
4.
It actually sets
into motion and it is the start of the police investigations
Must remember the first principle, when FIR is lodged,
it kicks off the police investigation. So what if there is no FIR? Can the
police investigate the matter/crime? Look at Section 110(1) of CPC. First part it says, “if the information
receive –FIR” or “otherwise” (so meaning information or otherwise, here it means that not necessary you must have an
FIR all the time). Let’s say police investigating report A, he comes across
another crime, that doesn’t stop him from investigating that crime also. Crime
B here is otherwise.
Even posting on FB and provide the info here, the
police officer can also through that investigate on the crime.
2. How do you use the FIR report?
§ Complainant will adduce evidence as to the contents of
the FIR. For a rape case, Victim will be the complainant. She will definitely be
called as a witness in court and give evidence. (On oath).
§ Complainant version in report of the events (offence
that has taken place on her) that happened to her will be adduced by the
prosecution. So when she gives oral testimony in court, what kind of evidence
she will give to support
-collaboration her oral evidence? It will be supported by medical (chemist
report) or forensic report (DNA etc) and also the FIR. FIR serves as
collaborative evidence. Must the story of the complainant be the same as the
FIR? FIR is made today and offence prosecuted 6 months time, the FIR indicates
freshness. When the complainant lodges in the report, will be fresh in her mind
and important.
3. Delay in lodging an FIR will have an effect on the
complainant’s credibility
4. There can be instances where the complainant’s
version/testimony in court differs from the contents of the FIR. In such a
case, what would the prosecution do let’s say complainant’s giving evidence in
chief, and could be some differences or more details, so how? Then in this
case, ask for explanation to explain the differences. (Prosecution’s duty
because calling as prosecution’s duty) For the defence council when there is
difference, he will try to impeach the credit of the complaint.
5. Not
necessary that the FIR should be very detail. Rare, might say things in bare
minimum. Not necessary for FIR to be an encyclopedia.
6. How do you think prosecution will tender FIR as
evidence? If read 107, when you go police station to lodge report, you can type
in and request a copy of the report and that copy of the report is called
certified true copy and not necessary to tender original because the original
one will be in book series. So you cannot bring the book to court. Law expects
prosecution to tender certified true copy. Look at Section 108A. Original will
be primary evidence, when you tender a copy it amounts to secondary evidence
but Section 108 permits the secondary. Sometimes courts will request for
original.
All these are supported in case laws which are given
in second power point.
B.
Transparency and accountability in investigation.
1. Complainant lodges a police report (do you think
the complainant want to know status?)
2. The complainant should know the status of the
report of what the police have done to investigate the crime.
3. (Look at Section 107A- CPC) Status report must be
given by the police officer
4. (So how soon?) Section 107A (3) If non seizable
offence, police officer not obliged to give police report. Must allow at least
1 month after lodgment of the police report to allow police to investigate. If
the police is in the view the public interest will be affected when they
disclose the info, then they won’t.
5. Where request made and the officer failed to
furnish the status report with the period specified, the informant may make
report of the failure. (Section 107(4)) – CPC uses the word informant but can
also be referred to as complainant. This is what is called accountability.
6. PP upon receive of the report, should direct the
officer in-charge to furnish with detailed info. (Also under Section 107A (5))
Now look at Section 110 à
once a report is lodged of a seizable offence, the police officer is duty bound
to inform the PP’s office by way of a report unless the PP has given instruction
that certain offences will not be reported to him.
7. Then he goes on to investigate the crime where
there will be visiting the crime scene by IO. So when arrest, Section 23-50
comes to mind.
8. (Then look at Section 120) All police investigation
must be completed without unnecessary delay.
9. 3 months
is given to investigate the crime. So, after 3 months the police officer must
report to the PP’s office and also send or transmit the investigation paper (kertas
siasatan). Then look at 2nd
Schedule, Form 26.
10. Contents
of investigation paper.
§ All the police reports (types; FIR(before
investigation), Arrest reports, search & seizure report) FIR admissible in
court as evidence because made before investigation. So the statements and
reports made after investigation is generally not admissible because of doubt
of voluntariness.
§ Statement of witnesses: Section 112 CPC.
§ Investigation diary. Section 119 CPC. ID.
§ IO maintains the investigation paper
Now look at Section119. IO will enter progress of
investigation on a day to day basis. But in practice sometimes, they may not
enter day to day basis.
1.
What does he
enter
A. Time he received the investigation à the moment the complainant lodges an FIR – seizable
offence
B. For a non-seizable offence when will the time starts
running? The moment the IO receives the OTI. Although he receives complaint,
not enough but must get OTI from PP. Must write down time of recording and end
of recording statements.
C. Visiting the scene of the crime. (in situ)
D. Statements of circumstances here referring to what
statements? à it is the statements of Section 112 CPC (recorded
from witnesses).
Some witnesses will give statutory declaration from
deponents and possibly affidavits, and search list. If look at Form 20 just now, somewhat it
indicates contents of ID. Look back now at
Form 26 Paragraph 5.
ID’s importance
§ Generally, can be used in court with limitations. Section
159(2)
§ Accused has got to right of access to ID, so he cannot
check or look at it because it belongs to officer. When IO writes ID is based
on his own information or hearsay? That is the reason why the ID is generally
inadmissible. But IO can refer to the ID. IO is normally the last witness to be
called in court, so in court when he testifies he may refer to ID when he needs
to recall.
Look at proviso as of this section. If IO refreshes
his memory by referring to ID that does not mean that the Accused person is
also entitled to look at the whole ID but
only entitled to access to that part of the ID referred by the IO.
Then refer to Section117 CPC. “Copy of entries in the
diary” = ID (Section 119)
Then police officer arrest suspects à Section 23 together with Section 15 of CPC
If unable to complete investigation within 24 hours,
A.
Release the
suspect (unconditionally)
B.
Apply for remand
order Section 117 read together with Section 28 + 28A
C.
Section 117
grounds of believing that the accusation information (FIR) is well founded – IO
(needs more time to investigate, he needs more time to verify the accusation or
information by the complainant à make application to the Magistrate. IO submits the ID
to show progress of investigation until the date of application so as to
convince the Magistrate that it needs time to continue investigation.
- Re Sivarasa
- Leonard Teo. (check on both of these cases).
Citations: [1996] 3 MLJ 611- MUST READ THIS CASE
Re Detention of Teoh Hooi Leong [1998] 1 MLJ 757 à Magistrate will perused and consider the application
by the IO and decide whether to allow time for further investigation. Magistrate
will only allow time if there is sufficient justification by the investigating
officer. (The only way the IO can convince the Magistrate is through the ID. So
for example, hasn’t done anything for the 24 hours, and then refer to see what
he did through the ID).
When the Magistrate allows time, he has to give
reasons. Then refer to Section 117(7). Further refer to (2) of this section. If
the offence carries a maximum punishment of less than 14 years, example robbery
then the IO may apply for remand order 4 days for the first application. Second
application 3 days. Altogether the maximum days of remand can run, total of 14
days. Can there be a remand pending trial? à
Yes. Example person charged for drugs trafficking, unbailable. The person has
to be remanded pending trial.
How do you compute the 24 hours? Strict or liberal
interpretation? à Strict interpretation. Why? The 24 hours is provided
for in the FC.
Ex officio Magistrate, assume role of Magistrate,
example assistant registrar of subordinate court or district officers.
During application for remand, is the suspect entitled
to a right to counsel?
PP v Foong Chee Cheong [1970] 1 MLJ 97
Herchun Singh v PP [1969] 2 MLJ 209
PP v DSAI [1999] 2 MLJ 1
Tan Cheng Kooi v PP [1972] 2 MLJ 115 – failure to
produce FIR
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