FIRST INFORMATION OF AN OFFENCE.

FIRST INFORMATION OF AN OFFENCE

Duncan Abeynayaka – LLB, Attorney At Law

 

CODE OF CRIMINAL PROCEDURE ACT

109.

(1) Every information relating to the commission of an offence may be given orally or in writing to a police officer or inquirer.

(2) If such information is given orally to a police officer or to an inquirer, it shall be reduced to writing by him in the language in which it is given and be read over to the informant;

(4A) Where an offence is committed in the presence of a police officer he may proceed to record the statement of any person present at or about the scene of the offence and the statement of any suspect, and if such police officer is not himself the officer in charge of the police station of the area in which the offence is committed, he shall forthwith report the facts to the officer in charge of such police station.

(3) Every such information, whether given in writing or reduced to writing.

(5) Procedure where cognizable offence is suspected or breach of the peace apprehended.

(6) Power to police officer or inquirer to require attendance of persons able to give information.

 

"Information Book" includes a crime pad or file maintained by the Criminal Investigation Department and any bureau of investigation for the purpose of recording statements;

"Inquirer" means a person appointed by the Minister under Chapter XI;

"officer in charge of a police station" includes, if the context so requires, an officer in charge of a branch of a police station and when the officer in charge of a police station or of a branch of a police station is absent therefrom or unable from illness to perform his duties, the police officer present at the police station or at the branch who is next in rank to such officer;

"Police station" means any post declared generally or specially by the Minister in charge of the subject of defence to be a police station, and includes a mobile police post, the Criminal Investigation Department and any bureau of investigation;

 

01. SARAVANAMUTTU VS KANAGASABAI 43 NLR 357

There, must be something more than a mere giving of information to the Police or other authority who institutes a prosecution. There must be the formulation of a charge or something in the way of solicitation, request or incitement of proceedings”.

 

02. W. HATURUSINGHE VS G. W. KUDADURAYA, 56 NLR 60

Where the Police institute a prosecution in consequence of information given to them by a person under section 121 (109) of the Criminal Procedure Code and the accused is acquitted at the trial, the first information given to the Police (as distinct from a statement made under section 122 of the Criminal Procedure Code after the commencement of the Police inquiry) is sufficient to found an action for malicious prosecution if it actually contains a clear allegation that the plaintiff committed an offence, or, in other words, if it formulates a charge against the plaintiff. In such a case, the inform ant cannot be permitted to plead that the Police should not have acted upon his allegation.

In an action for malicious prosecution the plaintiff has the burden of proving a negative, i.e., that the defendant acted without reasonable and probable cause.

In determining whether the burden has been discharged, regard should be had to all the circumstances in which the defendant acted.

 

03. THE ATTORNEY GENERAL VS GEETIN SINGHO 57 NLR 289

An accused person is entitled to obtain n certified copy of a first complaint recorded by the Police under the provisions of section 121 (1) of the Criminal Procedure Code. The entry in the Information Book relating to the first complaint is a public document, which the accused has a right to inspect; subject, therefore, to any claim of privilege under sections 123, 124 an d 123 of the Evidence Ordinance, the accused is entitled to obtain a certified copy of such entry under sections 74 and 76 of the Evidence Ordinance.

 

04. BUDDHADASA V. MAHENDRAN 58 NLR 08

A statement reduced into writing by a police officer in terms of section 122 (1) of the Criminal Procedure Code is not a statement of the witness, a record of which it purports to be, but is the statement of the police officer as to what the witness told him. Therefore, a certified copy of such a statement cannot be used in civil proceedings either to corroborate or to contradict the witness whose statement it purports to be.

A first information recorded in terms of section 121 (1) of the Criminal Procedure Code is of little or no value if the informant, after having access to the statement and becoming aware of its contents, seeks to use it to corroborate his own evidence.

 

05. THE QUEEN V. MAPITIGAMA BUDDHARAKKITA THERA AND 2 OTHERS - 63 NLR 433

Section 121 deals with information relating to the commission of a cognizable offence given to an officer in charge of a police station. It requires that the information when given orally should be reduced to writing by him or under his direction and read over to the informant, and that the person giving it should sign the writing made by the officer or under his direction. The section also enables the information to be given by the informant in writing instead of orally, for it provides that a copy of the information whether given in writing or reduced to writing shall be entered in ‘The Information Book ’.

Although the section provides that the ‘Information Book’ shall be kept in such form as the Minister may prescribe, no form has yet been prescribed. Nevertheless there is in fact in every police station a book called ‘The Information Book’ in which information relating to the commission of cognizable offences is entered. The question whether those books are the books contemplated in the statute does not arise for consideration here. Section 121 (2) then goes on to provide that if from information received or otherwise an officer in charge of a police station has reason to suspect the commission of a cognizable offence he shall forthwith send a report of the same to the Magistrate’s Court having jurisdiction in respect of such offence or to his own immediate superior and shall proceed in person to the spot to investigate the facts and circumstances of the case and to take such measures as may be necessary for the discovery and arrest of the offender. An officer in charge of a police station is empowered to depute one of his subordinate officers to proceed to the spot to make such investigation. Any police officer making an investigation under the Chapter is empowered to require, by order in writing, the attendance before himself of any person being within the limits of the station of such police officer or any adjoining station who, from the information given or otherwise, appears to be acquainted with the circumstances of the case and such person is bound to attend as so required. It is significant that the power to issue a warrant to secure the attendance of such person, when any person required to attend refuses or fails to do so, is conferred on inquirers alone and is not given to police officers.

 

06. PANDITARATNE V. ASSISTANT SUPERINTENDENT OF POLICE, KEGALLE 72 NLR 273

The information under section 121 (1) of the Criminal Procedure Code may be obtained in several ways. It may be made orally and reduced to writing, or it may be made in writing in the first instance, or it may be communicated over the telephone. Although a police officer who is present at the time of the commission of a cognizable offence against him is entitled to arrest the offender under section 65 of the Police Ordinance, ho would be giving information under section 121 (1) of the Criminal Procedure Code when he takes the offender to the Police Station and informs the authorities of the offence.

 

07. STANLEY DIAS VS THE QUEEN, 77 NLR 68

Where a first information recorded by a police officer in the Information Book related to an alleged assault but also contained the following last note :—

“When I (the police officer) first questioned him (the informant) he told me that he was shot by Kalumahathaya of Walgammulla” —

Held, that the record of the allegation about the shooting was not made in compliance with section 121 of the Criminal Procedure Code and the allegation was therefore not a part of the first information.

Held further, that even if it was permissible under section 157 of the Evidence Ordinance to admit as evidence the informant’s oral statement about the shooting, it was necessary for the police officer to give evidence that the oral statement was actually made. A first information is as much hearsay as any other statement made outside a Court.

 

08. FAIZ V. ATTORNEY-GENERAL AND OTHERS [1995] 1 SRILR. 372

Section 109 of the Criminal Procedure Code makes it mandatory for a police officer to record any information relating to the commission of an offence in the Information Book. Subsection 4 of this section requires a police officer who receives such information, if he is not the officer-in-charge of the police station to forthwith report such facts to the officer-in-charge of the station. Further in terms of section 109(5) if from the information received the officer-in-charge of the police station has reason to believe the commission of a cognizable offence he is required forthwith to send a report to the Magistrate’s Court having jurisdiction and to proceed in person or to delegate one of his subordinate officers to proceed to the spot to investigate the facts and circumstances of the case and to take such measures as would be necessary for the discovery and arrest of the offenders.

 

09. KEERTHI BANDARA VS ATTORNEY GENERAL [2000] 2 SLR 245

It is for the Judge to peruse the Information Book in the exercise of his overall control of the said Book and to use it to aid the Court at the inquiry or trial.

Court has overall control over statements recorded in the course of a police investigation and the court has a right to utilize the statements to aid it at the inquiry or trial and that for the intervention of the Court in the interests of justice and for the due administration of justice, the Court is entitled through its use of the information book to bring such vital omissions to the notice of the jury.

 

10. ILANDARI DEVAGE NIMAL WIJESINGHE VS THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA CA 8/2006

"It is for the Judge to peruse the Information Book in the exercise of its overall control of the said book and to use it to aid the Court at the inquiry or trial." This should not be interpreted to say that the Judge is empowered to use the statement of the witness which was not produced at the trial when writing the judgment. It is pertinent to consider what His

Lordship in the above judgment said at page 258. "We lay it down that it is for the Judge to peruse the Information Book in the exercise of his overall control of the said book and to use it to aid the Court at the inquiry or trial. When defence counsel spot lights a vital omission, the trial Judge ought to personally peruse the statement recorded in the Information Book, interpret the contents of the statement in his mind and determine whether there is a vital omission or not and thereafter inform the members of the jury whether there is a vital omission or not and his direction on the law in this respect is binding on the members of the jury. Thus when the defence contends that there is a vital omission which militates against the adoption of the credibility of the witness, it is the trial Judge who should peruse the Information Book and decide on that issue." Where does he do it? Is it open Court or Chambers of the Judge? Is it during trial or after conclusion of trial? It is very clear that the Judge has to do the above things in open court during the trial. If it is a trial by a judge, same procedure should apply. When the defence counsel spot lights an omission or seeks to mark a contradiction, the trial judge must peruse the Information Book and decide whether the sentence in the statement which the defence counsel intends to mark as a contradiction is in fact found in the statement or the defence counsel is trying to confront the witness with an incomplete sentence in the statement or decide whether the omission is correct. This is how court uses the Information Book to aid the trial or inquiry. Thus the trial judge will have to peruse the Information Book in order to decide the above matters. This does not mean that he can use statements of witnesses made in the course of investigation to the police officer which had not been produced at the trial as evidence.