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According to Section 13 of the CPC, there is obligation on a person to provide information to the police if he is (1) aware of the commission of the crime (2) aware of the intention to commit the crime
WHAT WE SHOULD DO? 1. See whether circumstances fall under Section 13 of the CPC. 2. Go to the police station to make report-record the FIR under Section 107 of the CPC. 3. Police has to determine whether it is seizable / nonseizable offence.
After fulfilling any of the above circumstances, there are two possible situations: (1) Inform the police (Section 107 of the CPC) Procedure For Recording FIR (1) Reduce into writing (2) Read it over to the informant (3) Filed, signed by the informant (4) Enter into the report book with date and time (5) Allocate a police report number. (2) Do not inform the police (Section 176 and 202 of the Penal Code): an offence punishable with imprisonment
DEFINITION OF FIR
S 107 of the CPC, it means information. Complaint to the police S.107 provides that: a) Every information relating to the commission of an offence, if given orally to an officer must be reduced in writing by the OCS and read over to the informant b) Such information must be entered into a book to be kept by the OCS and signed by the informant.
It depends on the question of how crucial is the FIR as evidence to convict the accused.
Held: The receiving and recording of a report is not a condition precedent to the setting in motion of a criminal investigation and there is no reason why the police, if in possession through their knowledge or by means of credible though informal intelligence which genuinely led them to the belief that a cognizable offence has been committed, should not of their own motion undertake an investigation into the truth of the matters alleged. Without FIR, prosecution. not necessarily vitiate the criminal
FIR not a pre-requisite to start proceeding or action if heard from other credible source, still can start.
Obiter dicta: Although of great importance, the omission of FIR does not however appear per se to be fatal to the prosecution.
Issue: whether a report which is not FIR is admissible under s108A CPC
PP v Kang Ho Soh [1992] 1 MLJ 360
Acting on an information the police set up a roadblock and on searching found dangerous drugs in the accuseds car.The accused was arrested and at the police station a report was put up as to the seizure. Def argued: Arrest Report was not produced as evidence and therefore fatal Held: report was an arrest report and not FIR and as such was not admissible under s.108A
Issue: Whether the accused is entitled to a copy of the FIR to prepare the defence?
Anthony Gomez v Ketua Polis Daerah Kuantan [1977] 2 MLJ 24 - Accused charged under s.506 PC - Applied to the OCPD to be supplied with a copy of FIR by the complainant. OCPD refused. - Application to the High Court arguing that FIR was a public document and thus accused had a right to inspect it. - High Court held: not a public document - Federal Court: FIR was a public document within the meaning of s 74 EA. - Accused had a right to inspect the FIR and to be supplied with a copy of it because he has interest in it.
Where the evidence of the complainant is the only evidence against the accused, the failure to produce the complainants report at the trail raises a presumption that it would , if produced, have been unfavourable to the prosecutions case. [R V Chin Khing Siong 1951] MLJ 74] Tan Cheng Kooi & Anor v PP [1972] 2 MLJ 115
Where there is other evidence apart from the complainants report, the failure to produce the report by the prosecution , although a serious omission, will not be fatal to the prosecutions case.
[PP v Foong Chee Cheong [1970] 1 MLJ 97]
False FIR
An offence under sect 182 of the Penal Code
i. ii.
2) the police officer wishes to investigate a. s 108(2) obtain OTI from PP b. s 108(3) officer not below Sergeant or any officer in charge of a police station (OCS) may investigate except the power to arrest without a warrant. PDRM v Keong Mei Cheng, Audrey [1994] 3 MLJ 296
2. If they are acquainted with the people but cant conduct interview with them at the crime scene they have power to call these people (Section 111)
3. To require the attendance of witness, has the power to take statement from them (Section 112) and has the power to record the statement.
c.
To state the truth, whether or not such statement is made wholly or partly in answer to question
d. IO must give general caution under sub(2) and (3) e. The statement shall whenever possible be taken down in writing and signed by the maker or affixed with his thumb print after reading it to him in the language he made it and after giving him an opportunity to correct it.
Compare with
PP v Jayaraman & Ors v PP [1982] 2 MLJ 306 (FC) Whenever possible applies to both i.e. reduce in writing and signed and affixed thumbprint. Facts: Oral statement made by the accused and not reduced into writing were admissible because of the phrase under s 112(5) CPC provided reasonable explanation is given.
Issue: Whether the recording of statement during examination or interrogation should be in the form of questions and answers PP v Subramaniam & Anor [1956] MLJ 58 The interrogation need not be recorded in a question and answer form. It can be just typed or write down the answer. PP v Abdullah bin Ambik [1984] 1 CLJ 159 recorded statement need not be in the form of questions and answers
Issue: Whether s.112 statement is to be read with s. 114 and must be voluntary
s.114 CPC provides that no police officer or other person shall prevent or discourage any person from making a statement during the police investigation
S112 statement, read with s114 must be made voluntarily and the burden is on the accused to show that the statement was not made voluntarily.
Norliana Sulaiman v PP [2001] 1 CLJ 36, Facts: charged for perjury under s193 PC when the statement contradicted with her oral evidence in court. She was convicted and later appealed on the ground that her s112 statement was not given of her free will.
Voluntariness.
Yusof bin Omar lwn Pendakwa Raya [2001] 2 AMR 1433 Accused was charged under s 193PC and was convicted thereof. He appealed on the ground that the statement under s112CPC was given involuntarily and the Court should conduct voir dire to determine its voluntariness. Held: the issue of voluntariness under s112CPC is not to be determined in a voir dire but to be raised in the defence.
Husdi v PP
The defence may have access to statement (Section 112) for the purpose of impeaching the credit of the witness.
To impeach, a copy of the statement shall be made available to the accused if directed by the court for impeachment proceeding. Accused persons statement can only be used by the accused for purpose of his defence during the course of the trial.
SECTION 112 1. Statement under 112 only made during police investigation. 2. Statement can be made to police officer. - cross refer to Section 109 i.e. not below rank of sergeant. 3. Person could be anyone. - witness, accused, anyone. 4. Statement can be taken even without caution being administered but warning under subsection (2) and (3) must be given.
SECTION 113 1. Made at any time before or after, within or outside police investigation. 2. Police officer: at the rank or above the rank of inspector.
5. More concerned on procedure of taking 5. More concerned on admissibility of down statement. statement in court.
2. ACCUSED PERSONS OWN STATEMENT Khoo Siew Bee Suffian LP: Since the police officer who recorded the cautioned statement was under duty to record the statement, it is therefore a public document. Section 107 not necessary witness, only informant.
3. ANY DOCUMENT RECORDING BY ANY PERSON (WITNESS STATEMENT, CO-ACCUSED ETC) Khoo Siew Bee Be it noted that my ruling only applies to statement recorded by accused, not from others who are
Other documents: - PP v Raymond Chia & Anor [1985] 2 MLJ 436 -document if the document is specified in the charge.
3.Arrest & Rights Relating to Arrest.ppt