Explaining Cross FIR & Counter FIR | Criminal Law Attorney in Delhi NCR | Criminal Lawyer in Delhi NCR |
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“A criminal case or a criminal trial is a very complex preposition. Lodging of Police complaints, registration of FIR, filing bail applications, lodging of counter Police complaints, registration of counter FIR, tendering evidences in criminal proceedings, applying the criminal defenses and preferring an appeal is an entirely difficult process. An FIR is the abbreviation used for First Information Report. It is the first information given to the police about the commission of a cognizable offence. This report forms the basis on which the police starts investigation. Section 154 of the Criminal Procedure Code (Cr. P.C.) of 1973 deals with filing of a FIR. This information is usually given either by the victim or aggrieved person or by an informant. However in some cases even the person who has been named as an accused in the FIR can also file an FIR against the person who filed the first FIR. Such FIR filed by the accused is also known as Counter FIR or Cross FIR.”
Like a FIR, counter FIR is also filed under Section 154 of the Criminal Procedure Code (Cr. P.C.) of 1973. There is no special provision in Criminal procedure 1973 which deals specifically with the filing of a counter FIR.
Clause 1 of Section 154 provides that when all the information regarding a cognizable offence is given to the police orally then the police reduces such information in writing and reads it before the informant and take his signature on it. The police shall provide a copy of the report to the informant without any cost under Section 154 clause (2). The same procedure is followed by the police when an accused files a counter FIR.
Therefore, to file a counter FIR under Section 154, the following two conditions must be satisfied:
1) Whatever the informant states in a FIR/counter FIR must be in the form of an information.
2) The information contained the FIR/counter FIR must be of a cognizable offence.
The counter FIR does not in any way affects the original FIR. Counter FIR is just a document in which the accused negates the original FIR and states his side of the story. It is investigated as separate FIR.
Reasons for filing a Counter FIR: Best Criminal Lawyer Advice
The accused generally files a counter FIR for two reasons:
a) For stating the Facts: As there are two sides of every story, by filing a counter FIR, the accused tries to bring to light his side of story. As held in the case of T.T. Antony vs. State of Kerala & Ors Criminal Appeal No. 689 of 2001, if filing of counter FIR is not allowed then it may lead to injustice if the real culprit files the FIR first and the real victim is precluded from filing a counter FIR to state his facts relating to the incident.
b) Personal Enmity/Vengeance: There have been several instances where the accused misused his right of filing counter FIR to take vengeance from the informant or the complainant in the original FIR. In such cases the counter FIR is filed by the accused with mala fide intention or due to personal enmity from the complainant/ informer. The accused may try to intimidate the complainant in withdrawing the FIR by filing a counter FIR against him. Accused may also use counter FIR to negotiate with the complainant in future.
Permissibility of filing a Counter FIR: Best Criminal Legal Solutions
A major question was raised before the Supreme Court regarding the validity of a counter FIR as there is no provision under any statute, which specifically allows or forbids filing of a counter FIR It is a well-established rule that only a single FIR can be filed for reporting a single incident of a cognizable incident. As a counter FIR is filed regarding the same incident hence its validity was questioned. This issue was raised before Supreme Court in the case of T.T. Antony vs. State of Kerala & Ors Criminal Appeal No. 689 of 2001 In this case the Supreme Court held that any further FIRs against the same accused stating the same facts is prohibited but a counter FIR filed by the accused against the informant in original FIR, stating his version of the facts is valid.
Citing the case of T.T. Antony vs. State of Kerala & Ors Criminal Appeal No. 689 of 2001 in the case of Babubhai vs State Of Gujarat & Ors Criminal Appeal No. 1599 of 2010 the Court gave The Test of Sameness which the court has to apply in every case where more than one FIRs are filed, to determine the validity of the FIR filed later. The Test of Sameness established a general rule that, if the two FIRs relating to the same incidence or to different parts of the same incident are filed, then the second FIR must be quashed by the court as both the FIRs are essentially reporting the same incident. However the court categorically exempted counter FIR from being quashed by application of this test as counter FIRs narrate different versions of same incident. When a counter FIR is filed then both FIR and Counter must be separately investigated. In order to determine whether a counter FIR is valid, the court have to examine the facts and circumstances of the incidents narrated in the FIRs and accordingly decide whether the counter FIRs are valid or not.
The Hon’ble Supreme Court in the case of Anju Chaudhari v. State of Uttar Pradesh & Another Criminal Appeal No. 2039 of 2012 held that the question regarding the permissibility of counter FIR in a case is a mixed question of fact and law. The court will have to refer to the circumstances of the case to determine whether the counter FIR refers to different facts and different properties of the same cognizable offence committed in the course of same transaction even though the modus operandi of committing the crime is same in both the FIR and counter FIR.
Before Whom & When a Counter FIR is filed?
Generally, the FIR is filed right after the cognizable offence has been committed, but there is no time limit to file FIR and similarly there is no time limit to file a counter FIR. A counter FIR can be filed any time after an original FIR has been filed. However, in case of inordinate delay in filing of a Counter FIR, justification has to be given. A counter FIR is filed in a police station under whose jurisdiction the crime was committed or the original FIR was filed.
Conclusion
Based on the above explanation it can be said that even though no statute expressly prohibits or permits the filing of Cross/counter FIR, it is now a well-established practice. It is the duty of the police to register only Bona fide FIR irrespective of whether it is Original FIR or Counter FIR. Whenever a counter FIR is filed, the police must consider the existence of prima facie case on both sides. The police can refuse to register both the FIRs if both the FIRs lacks prima facie case. However, if the police registers both the FIR and the counter FIR, then they may conduct joint investigation for the FIRs and file combined charge sheet or can opt for filing separate charge sheets.
Authored By: Adv. Anant Sharma & Mahua Dutta