Chapters XI and XII of the Cr PC, 1973 cannot be said to be mutually exclusive. Chapter XII deals with "information to the police and their powers to investigate". It prescribes the procedure for investigation. But this investigation is not confined to cognizable offences only. It may be restored to in non-cognizable offences under section 155 or in case of no crime at all, e.g., unnatural death as under section 174. 'Investigation' usually starts on information relating to the commission of an offence given to an officer-in-charge of a police station and recorded under section 154 of the Cr PC. If, from the information so received or otherwise, the officer-in-charge of the police station has reason to suspect the commission of an offence, he, or some other subordinate officer deputed by him, has to proceed to the spot to investigate the facts and circumstances of the case and if necessary, to take measures for the discovery and arrest of the offender.
According to the scheme of the Code, investigation is a normal preliminary to an accused being put up for trial for a cognizable offence (except when the Magistrate takes cognizance otherwise than on a police report in which he has the power under section 202 to order investigation if he thinks fit). Therefore, it is clear that when the legislature made the offences in an act cognizable, prior investigation by the appropriate police officer was contemplated as the normal preliminary to the trial in respect of such offences under the Code.
Thus, investigation primarily consists in the ascertainment of the facts and circumstances of the case. According to section 2(h) of the Cr PC, 1973, 'investigation' includes all the proceedings under this Code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorised by a Magistrate in this behalf.
The report first recorded by the police relating to the commission of a cognizable case is the first information report (FIR) giving first information of the cognizable crime. This is usually made by the complainant or by someone on his behalf. The FIR is made to the police with the object of putting the police in motion in order to investigate a crime.
The term FIR has not been defined in the Code of Criminal Procedure. However, it is nothing but the statement of the maker of the report at a police station before a police officer recorded in the manner provided by the provisions of the Code; State v. Shiv Singh, MANU/RH/0002/1962 : AIR 1962 Raj 3. Whether or not a particular statement would constitute the first information is a question of fact and would depend upon the circumstances of the case. It is not every piece of information, however vague and indefinite or unauthenticated which will form the FIR, merely because it was the first to reach the police station. The special significance of the FIR lies in the fact that it is a record of the earliest information about an alleged offence, a statement given before the circumstances of the crime can be forgotten or embellished; State of Kerala v. Samuel, AIR 1962 Ker 99. The information must not be vague, but definite enough to enable the police to start investigation; State of Assam v. Upendra Nath Rajkhosla, 1975 Cr LJ 354 (Gau).
First Information Report (FIR) at the initial stage must disclose some cognizable offence so that the police may proceed with the investigation of the case, as it is prerogative of the police to investigate the same; Subhas Aggarwal v. State of Bihar, 1989 Cr LJ 1752.
Section 154 of the Cr PC, 1973 provides for the information in cognizable offence.
The section provides that if the information is given orally, it shall be reduced to writing by the officer-in-charge of the police station or under his direction and be read over to the informant and shall be signed by the person giving it. The substance of information shall also be entered in a book kept by such officer in the form prescribed therefor; Hasan Adbulla v. State, MANU/GJ/0059/1962 : AIR 1962 Guj 218.
Any person aware of the commission of any cognizable offence may give information to the police and may, thereby set the criminal law in motion. Such information is to be given to the officer-in-charge of the police station having jurisdiction to investigate the offence. The information so received shall be recorded in such a form and manner as is provided in section 154. That section is intended to ensure the making of an accurate record of the information given to the police. According to this section:-
(1) If the information is given orally to the office-in-charge of the police station, it shall be reduced to writing by the officer himself or under his direction.
(2) If the information is given in writing, or if reduced to writing as aforesaid, the writing shall be signed by the informant.
(3) The information as taken down in writing shall be read over to the informant.
(4) The substance of the information shall then be entered, by the police officer, in a book to be kept by such an officer in the form prescribed by the State Government. This book is called the Station Diary or General Diary.
(5) A copy of the information as recorded above shall be given forthwith free of cost to the informant.
(6) If the office-in-charge of the police station refuses to record the information any person aggrieved by such refusal may send, in writing and by post, the substance of such information to the Superintendent of Police concerned. If the Superintendent is satisfied that such information discloses the commission of a cognizable offence, he shall either investigate the case himself or direct an investigation to be made by any police officer subordinate to him. Such an officer shall have all the powers of an officer-in-charge of the police station in relation to that offence.
The legal position as to the object, value and use of the FIR is well-settled. The principal object of the FIR from the point of view of the investigation authorities is to obtain information about the alleged criminal activity so as to be able to take suitable steps for tracing and bringing to book the guilty party; Hasib v. State of Bihar, MANU/SC/0180/1971 : AIR 1972 SC 283.
Although FIR recorded by the police is of considerable value at the trial showing as it does on what materials the investigation commenced, it is not a piece of substantive evidence, but may only be considered for the purpose of corroboration under section 157 of the Indian Evidence Act, if all the provisions thereof are complied with. It is admissible in evidence against the maker or informant. It can be used only as a previous statement admissible to corroborate or contradict a statement made by the informant subsequently in court. It can, therefore, be used only for the purpose of corroborating or contradicting the maker thereof. The FIR is never treated as a substantive piece of evidence. It can only be used for corroborating or contradicting its maker when he appears in court as a witness. Its value must depend upon the facts and circumstances of a given case; Dharma Ram Bhagare v. State of Maharashtra, 1974 (II) SCJ 349.
"When there is criticism on the ground that FIR in a case was delayed, the Court has to look at the reason why there was such a delay. There can be a variety of genuine causes for FIR lodgment to get delayed. Rural people might be ignorant of the need for informing the police of a crime without any lapse of time. This kind of unconversantness is not too uncommon among urban people also. They might not immediately think of going to the police station. Another possibility is due to lack to adequate transport facilities for the informers to reach the police station. The third, which is quite common bearing, is that the kith and kin of the deceased might take some appreciable time to regain a certain level of tranquility of mind or sedativeness of temper for moving to the police station for the purpose of furnishing the requisite information. Yet another cause is, the persons who are supposed to give such information themselves could be so physically impaired that the police had to reach them on getting some nebulous information about the incident.
We are not providing an exhausting catalogue of instances which could cause delay in lodging the FIR. Our effort is to try to point out that the state demand made in the criminal courts to treat the FIR vitiated merely on the ground of delay in its lodgment cannot be approved as a legal corollary. In any case, where there is delay in making the FIR, the Court has to look at the cause of it and if such causes are not attributable to any effort to concoct a version no consequence shall be attached to the mere delay in lodging the FIR; Ravinder Kumar v. State of Punjab, MANU/SC/0536/2001 : (2001) 7 SCC 690.
There is no hard and fast rule that any delay in lodging the FIR would automatically render the prosecution case doubtful. It necessarily depends upon facts and circumstances of each case whether there has been any such delay in lodging the FIR which may cast doubt about the veracity of the prosecution case and for this a host of circumstances like the condition of the first informant, the nature of injuries sustained, the number of victims, the efforts made to provide medical aid to them, the distance of the hospital and the police station, etc. have to be taken into consideration. There is no mathematical formula by which an inference may be drawn either way merely on account of delay in lodging of the FIR; Amar Singh v. Balwinder Singh, MANU/SC/0065/2003 : (2003) 2 SCC 518: 1 (2003) SLT 733.
Delay in lodging the FIR cannot be used as a ritualistic formula for doubting the prosecution case and discarding the same solely on the ground of delay in lodging the first information report. Delay has the effect of putting the Court on its guard to search if any plausible explanation has been offered for the delay, and if offered, whether it is satisfactory or not. If the prosecution fails to satisfactorily explain the delay and there is a possibility of embellishment in the prosecution version on account of such delay, the delay would be fatal to the prosecution. However, if the delay is explained to the satisfaction of the Court, the delay cannot be itself be a ground for disbelieving and discarding the entire prosecution case; State of Himachal Pradesh v. Gian Chand, MANU/SC/0312/2001 : (2001) 6 SCC 71: III (2001) SLT 740.
The settled principle of law of this Court is that delay in filing FIR by itself cannot be a ground to doubt the prosecution case and discard it. The delay in lodging the FIR would put the Court on its guard to search if any plausible explanation has been offered and if offered whether it is satisfactory; Sahebrao v. State of Maharashtra, II (2006) CCR 158 (SC).
The FIR is required to be signed by the informant, unless the report is signed by him, it cannot be treated as FIR in the case; Anu Meah v. Tripura Administration, AIR 1961 Tri 4. A telephonic information cannot be treated as a FIR; Jai Singh v. State, AIR 1967 Del 14. Likewise, a telegram is also not a FIR; Kachi Hazam v. Seraj Khan, MANU/WB/0278/1934 : AIR 1935 Cal 403, unless, the original of the telegram is signed or thumb marked by him, it may be treated as FIR; Chinan Singh v. E., ILR 15 Lah 814.
Complaints or statements made to police officers do not form part of judicial proceedings and, therefore, no privilege is attached to them. If the matter ultimately goes before the Court, these may be subject to absolute privilege. If the matter does not go to the court at all, then the maximum benefit that may be available is qualified privilege; Govind S. Walanalkar v. Pandarinath, (1985) 87 Bom LR 1.
While information in cognizable cases having been dealt with in the section 154 Cr PC, section 155 Cr PC, deals with information in non-cognizable cases. Section 155 Cr PC reads:
This section comprises of four sub-sections. Sub-section (1) simply empowers the officer-in-charge of a police station to record the information and refer the informant to the Magistrate. Sub-section (2) expressly prohibits the police officer from investigating a non-cognizable case without the order of a Magistrate. Sub-section (3) then lays down how the police officer should proceed in the case once he gets the order of the Magistrate. Sub-section (4) expressly provides that if one of the offences reported is cognizable and the report relates to two or more offences, then the case must be treated as a cognizable case. That is to say, the powers and duties under section 154 will be attracted under section 155 as well.
Where information is given to the police of a cognizable offence and the case is registered regarding that offence, the investigating officer, while investigating the cognizable offence cannot possibly be debarred from investigating any subsidiary and non-cognizable offence which may arise out of the facts, and can also include these latter cases in his main report under section 173; Ram Krishna Dalmia v. State, 1958 Pun 172 (173).
Sections 154 and 155 of Code of Criminal Procedure deal with the information to the police. However, there are following differences between these two sections:
(i) Under section 154 Cr PC which deals with cognizable offences, the officer-in-charge of the police station is bound to record the entire information as received by or as given to him while under section 155 Cr PC which deals with non-cognizable offences, the police shall record the substance of officer such report as is given by the informant and the same has to be referred to the Area Magistrate.
(ii) Another difference between the two sections lies in the fact that whereas the Police Officer in-charge of a Police Station can start the investigation into the alleged cognizable offence on the basis of the first information received and recorded by him, the same cannot be done in case of non-cognizable offences. Under section 155, the information received by the Police Officer has to be transmitted to the Magistrate, whose prior order and permission must be obtained by the Police Officer to start the investigation into the offence of a non-cognizable character.
Statements made to the police as the result of action taken under section 154 or section 155 are privileged statements, and, as such, cannot be used as evidence or made the foundation of charge of defamation; Parwari v. Emperor, MANU/UP/0327/1919 : AIR 1919 All 276.
In T.T. Antony v. State of Kerala, (2001) SLT 211: III (2001) CCR 55 (SC): 2001 Cr LJ 3329; one of the important issues, inter alia, for determination was, whether registration of a fresh case on the basis of the letter of the DGP which is in the nature of the second FIR under section 154 of Cr PC for the same incident is valid and can it form the basis of a fresh investigation?
The Supreme Court observed and held that, sub-section (1) of section 154 of Cr PC contain four mandates to an officer-in-charge of a police station. The first enjoins that every information relating to commission of a cognizable offence if given orally shall be reduced to writing and the second directs that it be read over to the informant; the third requires that every such information whether given in writing or reduced to writing shall be signed by the informant and the fourth is that the substance of such information shall be entered in the station house diary. It will be apt to note here a further directive contained in sub-section (1) of section 157 of Cr PC which provides that immediately on receipt of the information, the officer-in-charge of the police station shall send a report of every cognizable offence to a Magistrate empowered to take cognizance of the offence and then proceed to investigate or depute his subordinate officer to investigate the facts and circumstances of the case. Sub-section (2) entitles the informant to receive a copy of the information, as recorded under sub-section (1), free of cost. Sub-section (3) says that in the event of an officer-in-charge of a police station refusing to record the information as postulated under sub-section (1), a person aggrieved thereby may send the substance of such information in writing and by post to the Superintendent of Police concerned who is given an option either to investigate the case himself or direct the investigation to be made by a police officer subordinate to him, in the manner provided by Cr PC, if he is satisfied that the information discloses the commission of a cognizable offence. The police officer to whom investigation is entrusted by the Superintendent of Police has all the powers of an officer-in-charge of the police station in relation to that offence.
An information given under sub-section (1) of section 154 of Cr PC is commonly known as First Information Report (FIR) though the term is not used in the Code. It is a very important document. And as its nickname suggests it is the earliest and the first information of a cognizable offence recorded by an officer-in-charge of a police station. It sets the criminal law into motion and marks the commencement of the investigation which ends up with the formation of opinion under section 169 or 170 of Cr PC, as the case may be, and forwarding of a police report under section 173 of Cr PC. It is quite possible and it happens not infrequently that more information than one are given to a police officer-in-charge of a police station in respect of the same incident involving one or more than one cognizable offences. In such a case, he need not enter every one of them in the station house diary and this is implied in section 154 of Cr PC. Apart from a vague information by a phone call or a cryptic telegram, the information first entered in the station house diary, kept for this purpose, by a police officer-in-charge of a police station is the First Information Report - FIR postulated by section 154 of Cr PC. All other information made orally or in writing after the commencement of the investigation into the cognizable offence disclosed from the facts mentioned in the First Information Report are entered in the station house diary by the police officer or such other cognizable offences as may come to his notice during the investigation, will be statements falling under section 162 of Cr PC. No such information statement can properly be treated as an FIR and entered in the station house diary again, as it would in effect be a second FIR and the same can not be in conformity with the scheme of the Cr PC. Take a case where an FIR mentions cognizable offence under section 307 or 326, IPC and the investigating agency learns during the investigation or receives a fresh information that the victim died, no fresh FIR under section 302, IPC need be registered which will be irregular; in such a case, alteration of the provision of law in the first FIR is the proper course to adopt. Let us consider a different situation in which H having killed W, his wife, informs the police that she is killed by an unknown person or knowing that W is killed by his mother or sister, H owns up the responsibility and during investigation, the truth is detected; it does not require filing of fresh FIR against H the real offender - who can be arraigned in the report under section 173(2) or 173(8) of Cr PC, as the case may be. It is, of course, permissible for the investigating officer to send up a report to the concerned Magistrate even earlier than investigation is being directed against the person suspected to be the accused.
The scheme of the Cr PC is that an officer-in-charge of a police station has to commence investigation as provided in section 156 or 157 of Cr PC on the basis of entry of the First Information Report, on coming to know of the commission of a cognizable offence. On completion of investigation and on the basis of evidence collected, he has to form opinion under section 169 or 170 of Cr PC, as the case may be, and forward his report to the concerned Magistrate under section 173(2) of Cr PC. However, even after filing such a report if he comes into possession of further information or material, he need not register a fresh FIR, he is empowered to make further investigation, normally with the leave of the Court, and where during further investigation he collects further evidence, oral or documentary, he is obliged to forward the same with one or more further reports; this is the import of sub-section (8) of section 173 Cr PC.
From the above discussion it follows that under the scheme of the provisions of sections 154, 155, 156, 157, 162, 169, 170 and 173 of Cr PC, only the earliest or the first information in regard to the commission of a cognizable offence satisfies the requirements of section 154, Cr PC. Thus, there can be no second FIR and consequently there can be no fresh investigation receipt of every subsequent information in respect of the same cognizable offence or the same occurrence or incident-giving rise to one or more cognizable offences. On receipt of information about a cognizable offence or an incident giving rise to a cognizable offence or offences and on entering the FIR in the station house diary, the officer-in-charge of a police station has to investigate not merely the cognizable offence reported in the FIR but also other connected offences found to have been committed in the course of the same transaction or the same occurrence and filed one or more reports as provided in section 173 of the Cr PC.
According to the scheme of the Code, investigation is a normal preliminary to an accused being put up for trial for a cognizable offence (except when the Magistrate takes cognizance otherwise than on a police report in which case he has the power under section 202 Cr PC to order investigation if he thinks fit). Under the Code, investigation consists generally of the following steps:
(i) Proceeding to the spot;
(ii) Ascertainment of the facts and circumstances of the case;
(iii) Discovery and arrest of the suspected offender;
(iv) Collection of evidence relating to the commission of the offence which may consist of:
(a) the examination of various persons (including the accused) and the reduction of their statements into writing, if the officer thinks fit,
(b) the search of places or seizure of things considered necessary for the investigation and to be produced at the trial; and
(v) Formation of opinion as to whether on the basis of the material collected, there is a case fit to place the accused before a Magistrate for trial, and if so taking the necessary steps for the same by the filing of the charge-sheet under section 173; State of Uttar Pradesh v. Bhagwant Kishore, MANU/SC/0066/1963 : AIR 1964 SC 221; K.M. Nanawati v. State of Maharashtra, MANU/SC/0147/1961 : AIR 1962 SC 605 (625).
The powers and duties of a police officer to investigate a non-cognizable offence has been provided under sub-section (2) of section 155 Cr PC. This sub-section prohibits expressly the investigation by the police suo motu of non-cognizable offences. The order of the Magistrate is a condition precedent for investigation of such offences by a police officer; Lal Chand v. State, (1964) 2 Cr LJ 115. This prohibition is not absolute but is qualified by the phrase 'without the order of a Magistrate'; Emperor v. Thakuri, MANU/OU/0080/1940 : AIR 1940 Oudh 413 (415). Sub-section (2) of section 155 Cr PC prohibits a police officer from investigating into a non-cognizable case without the order of a Magistrate having power to try such case; Binay Das v. State of Orissa, (1987) 64 Cut LT 8. The permission of Magistrate is sine qua non before commencing investigation; Ram Kumar v. State, 1976 CLR 67 (P&H).
When an application by the police is made to Magistrate seeking permission to investigate a non-cognizable offence under section 155(2), the person against whom the accusation is levelled has no right to intervene and participate in the proceedings. Nor should the Magistrate grant permission to intervene. An accused person does not figure at all in a judicial proceeding till process is issued; V.V. Perumal v. State, 1982 Mad LJ (Cr) 598.
If the Magistrate had power to grant permission, the permission is not invalidated by reason of reference to an erroneous provision of law. At the most, this would be a mere irregularity not affecting jurisdiction and cannot vitiate the trial or consequent conviction, if it is otherwise good; K.N.N. Ayyanger v. State, AIR 1954 MB 101 (106).
Irregularity at the stage of investigation or in the arrest of the accused cannot affect the validity of the trial; Prabhu v. Emperor, MANU/PR/0035/1944 : AIR 1944 PC 73. The provision of section 155(2) cannot be rendered nugatory by regarding a police report in non-cognizable case, where there has been no previous order under section 155(2), as a valid report under section 190(1)(b) Cr PC; Abdul Halim v. State of West Bengal, MANU/WB/0058/1961 : AIR 1961 Cal 257.
Section 156 Cr PC provides for the police officer's power to investigate cognizable case in the following words:
Vide section 156 of the Cr PC, any officer in-charge of a police station may, without the order of a Magistrate, investigate any cognizable case which the Court having jurisdiction over the local area within the limits of such police station would have the power to inquire into or try under the provisions of the Code. Thus, so far as cognizable offences are concerned the police officer in-charge of a police station can conduct the investigation without waiting for
the orders of the Magistrate or the court. As soon as the first information report (FIR) regarding a cognizable offence is received, the machinery for investigation should come into motion at once. Investigation of the cognizable offence does not require any prior permission of the Magistrate or the Court. The only condition placed on the power of the police officer to investigate is that the cognizable offence be such as, it has been committed within the limits of the jurisdiction of the court which take cognizance of the matter and try the case. Under this section, the proceeding of police officer in any such case shall not at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate.
Irregularities in the conduct of investigation are not intended to vitiate the trial before the Courts; State v. Dhanpat, 1966 RLW 122. The protection available to an officer-in-charge of a police station under section 156(2) is also available to a superior of that officer exercising his powers of investigation under section 36; Soni N. Prabhudas v. State of Gujarat, 1983 Cr LJ 934. The objections viz.,
(i) that the Police Officer investigating the offence has no territorial jurisdiction, and
(ii) that he is inferior in rank to the officer-in-charge of a police station fall under section 156(2) and cannot be entertained; State of Punjab v. Piara Singh, 1978 Cr LJ 178 (P&H).
Where investigation is going on, it cannot be interfered with; Suraj Bhan Sarad Kumar v. Delhi Administration, 1981 Ch. Cr C 53. The provision in sub-section (2) makes it abundantly plain that want of authority in the investigating officer investigating a case under sub-section (1) will not vitiate the trial started on his report or complaint; Public Prosecutor v. Hatam Bhai, AIR 169 AP 99.
According to sub-section (3) of section 156, any Magistrate empowered to take cognizance of an offence under section 190 may make order for investigation. Where a Magistrate orders investigation by the police before taking cognizance under section 156(3) of the Code and receives the final report from the police, he has power to issue notice to the complaint, record his statement and the statements of other witnesses and issue process under section 204 of the Code.
Before section 156(3) Cr PC is pressed into service by a Magistrate, he has to be satisfied on the allegations made in the complaint that an offence has been committed and he may take cognizance of an offence on such complaint; Arun Shourie v. State, 1989 Raj Ch Crl 25. Where the Magistrate has already taken cognizance, investigation can be ordered only under section 202 Cr PC; State of Assam v. Abdul Noor, MANU/SC/0192/1970 : AIR 1970 SC 1365.
The power under section 156(3) Cr PC can be exercised even after the submission of a report under section 173, which would also mean that it is open to the Magistrate not to accept the conclusion of the police officer and direct further investigation; H.S. Bains v. State, MANU/SC/0126/1980 : AIR 1980 SC 1883.
Where a Magistrate chooses to take cognizance, he can adopt any of the following alternations:
(a) He can pursue the complaint and if satisfied that there are sufficient grounds for proceeding, he can straightaway issue process to the accused but before he does so, he must comply with the requirements of section 200 Cr PC and record the evidence of the complainant or his witness;
(b) The Magistrate can postpone the issue of process and direct an inquiry by himself; and
(c) The Magistrate can postpone the issue of process and direct an enquiry by any other person or an investigation by the police; Tula Ram v. Kishore Singh, MANU/SC/0163/1977 : AIR 1977 SC 2401.
The procedure of investigation has been provided under section 157 Cr PC.
(1) If, from information received or otherwise, an officer-in-charge of a police station has reason to suspect the commission of an offence which he is empowered under section 156 to investigate, he shall forthwith send a report of the same to a Magistrate empowered to take cognizance of such offence upon a police report and shall proceed in person, or shall depute one of his subordinate officers not being below such rank as the State Government may, by general or special order, prescribe in this behalf, to proceed, to the spot, to investigate the facts and circumstances of the case, and, if necessary, to take measures for the discovery and arrest of the offender:
Provided that-
(a) when information as to the commission of any such offence is given against any person by name and the case is not of a serious nature, the officer-in-charge of a police station need not proceed in person or depute a subordinate officer to make an investigation on the spot;
(b) if it appears to the officer-in-charge of a police station that there is no sufficient ground for entering on an investigation, he shall not investigate the case:
(2) In each of the cases mentioned in clauses (a) and (b) of the proviso to sub-section (1), the officer-in-charge of the police station shall state in his report his reasons for not fully complying with the requirements to that sub-section, and, in the case mentioned in clause (b) of the said proviso, the officer shall also forthwith notify to the informant, if any, in such manner as may be prescribed by the State Government, the fact that he will not investigate the case or cause it to be investigated.
This section lays down the duties of the officer-in-charge of a police station. Section 157(1) of the Cr PC prescribes the procedure for the investigation of an offence. Under this section if the police officer-in-charge of a police station has reason to suspect the commission of an offence which he is empowered to investigate under section 156, he shall forthwith send a report of the same to a Magistrate empowered to take cognizance of such offence upon a police report. After doing so, such police officer shall proceed in person, or shall depute one of his subordinate officers not below the rank prescribed in this behalf, to proceed to the spot, to investigate the facts and circumstances of the case and if necessary, to take measures for the discovery and arrest of the offender.
There is some discretion allowed to a police officer acting under this section. Thus if the first information report gives the name of the person against whom the report is lodged and the offence is not of a serious nature, the police officer need not proceed in person or depute a subordinate officer to make an on the spot investigation. If the officer-in-charge of a police station is of the opinion, or if it so appears to him, that there is no sufficient ground for an investigation, he shall not investigate the case.1
Where the police officer does not proceed with the investigation of the case on receipt of the first information report, he shall record reasons for not fully complying with the requirements of this section, and shall also forthwith notify to the informant, if any, in such manner as may be prescribed, the fact that he will not investigate the case or cause it to be investigated.2
The police officer acting under section 157(1) is required to send a report to the Magistrate having jurisdiction over the matter, stating that a cognizable offence is suspected to have been committed and that he has taken up the investigation himself or has deputed one of his subordinates to investigate the case. The object of the report is to enable the Magistrate to have an early information of any serious case so that he can act himself if need be. The failure to send such a report is a serious neglect of duty on the part of the police officer and is likely to result in failure of justice. According to their Lordships of Patna High Court in Hafiz Mohammad v. Emperor, MANU/BH/0132/1931 : AIR 1931 Pat 150; such failure on the part of the police officer lays the police open to the suspicion of concocting false evidence. However, in the absence of any prejudice to be accused, the omission to send the report of the occurrence to the Magistrate does not vitiate the trial.
In Mahmood v. State of Uttar Pradesh, MANU/SC/8108/2007 : AIR 2008 SC 515, the Supreme Court held that there is no universal rule which can be laid down as to the time required by the station house officer for sending special report to the magistrate after recording FIR. Each case turns on its own facts. However, in Aqeel Ahmad v. State of Uttar Pradesh, MANU/SC/8435/2008 : AIR 2009 SC 1271, the Supreme Court held that the report to be forwarded to the Magistrate with earliest dispatch so as to avoid possibility of improvement in prosecution case and to enable the Magistrate to have watch on progress of the investigation.
In Beli Ram v. State of Himachal Pradesh, 1980 Cr LJ 391; it was observed that, section 157 of the Code requires of the police officer to immediately commence investigation when he has reason to suspect the commission of cognizable offence within the jurisdiction of his police station. It is of utmost important that the police must be prompt in the investigation of cognizable offence as delay therein is likely to cause serious prejudice either to the accused or to the prosecution. Such delay would certainly not be conducive for either the prevention or the detention of the crime which are avowed objects of the Police Act.
________________
1. Vide provisions (a) and (b).
2. Vide section 157(2).
In Shukul v. Emperor, 34 Cr LJ 689; their Lordships of Allahabad High Court observed the following objects of investigation with regard to administration of justice:
(i) the duty of the police in the investigation of any crime is to discover the truth and not simply to obtain evidence for the purpose of securing a conviction.
(ii) it is the duty of prosecution to bring out in evidence everything in favour of an accused person and to lay before the court all the evidence even though some of that may result in an acquittal.
(iii) it is the duty of the committing Magistrate and the trial judge to be solicitous in the interest of the accused. This is especially so in riot cases where the accused are generally humble and ignorant, unable to defend themselves and often inadequately in the Courts.
Following are the differences between sections 154 and 157 Cr PC:
* That whereas every information covered by the section 154 must be reduced to writing as provided in that section, it is only the information which raises a reasonable suspicion of the commission of a cognizable offence within the jurisdiction of a police officer to whom it is given which compels actions under the latter section, although, of course, a report would be sent to the Magistrate; Punjab Circular, Chap XLV 171.
* Upon receiving the said information, the officer-in-charge of the police station shall forthwith send a report of the suspected commission of an offence to a Magistrate empowered to take cognizance of such offence upon a police report.1
* It is only, thereafter, and not till then that the investigation into
the facts and circumstances of the case starts. Thus, under the
Code of Criminal Procedure, the stage of the first information (section 154) and the stage at which the investigation commences (section 157) are distinct stages; Ram Rijhumal v. State, MANU/MH/0036/1958 : AIR 1958 Bom 125 (132).
* Where the FIR does not name any person as accused and the investigation proceeds against person not known, there is no necessity to send further report under section 157 if the accused is discovered; Chandrashekhanan, M.R. v. State of Karnataka, (1978) 2 Kar LJ 273.
__________________
1. Vide section 157.
Under section 157 Cr PC, the officer-in-charge is empowered to delegate his own power of investigation to one of his subordinate officers.
In P.L. Jalan v. Gour Mohan Chandra, 1969 Cr LJ 808 (810); their Lordships of Calcutta High Court observed that, the officer-in-charge of the police station could certainly withdraw the investigation from the subordinate officer to whom investigation had been made over and transfer the investigation to some other officer subordinate to him or to take up the investigation himself. The power of investigation involves also a power of withdrawing the delegation.
Section 159 of the Code provides for the power of a Magistrate to hold investigation or preliminary inquiry.
This section is primarily meant to give the Magistrate the power of directing an investigation in case in which the police decide not to investigate the case under the proviso to section 157(1) Cr PC. It is only in those cases that, if the Magistrate thinks fit, he may himself make an investigation or direct a subordinate Magistrate to hold a preliminary inquiry or otherwise to dispose of, the case in the manner provided in this Code. This section is really intended to give a limited power to the Magistrate to ensure that the police investigate all cognizable offences and do not refuse to do so by abusing the right granted for certain limited cases of not proceeding with the investigation of the offence; S.N. Sharma v. Bipen Kumar Tiwari, MANU/SC/0182/1970 : AIR 1970 SC 786.
The section does not empower the Magistrate to interfere with the investigation of an offence by the police and take over the investigation himself or entrust it to any subordinate Magistrate; Lachmanan Chetti v. King-Emperor, (1904) 1 Cr LJ 539 (540).
The word 'direct' would connote that the police are not engaged in the investigation and the Magistrate orders them to do so. The word 'direct', therefore, would be meaningless in relation to an investigation by the police which is already in progress. It would, therefore, cover only those cases in which the investigation is not done by the police and the Court directs them to investigate; S.N. Sharma v. Bipen Kumar Tiwari, MANU/SC/0182/1970 : AIR 1970 SC 786.
'Investigation' is a word confined to proceedings of the police or person other than Magistrate, and that 'inquiry' is the word appropriate to the proceedings of Magistrates prior to trial. The expression 'preliminary inquiry' in section 159 Cr PC has been used in a different sense. It refers to inquiries under Chapter XVIII prior to commitment to the sessions, which were held after the police investigation was complete after a charge-sheet was drawn up and after the accused was forwarded under custody under section 170 to the Magistrate empowered to take cognizance of the case; Tangedupalle Pedda Obigadu v. Pullasi Pedda, AIR 1922 Mad 40.
Section 160 of the Code invests powers to the police officer to require attendance of witnesses.
Under section 160 of Cr PC, any police officer making an investigation may by order in writing require the attendance of any person being within the limits of his own or any adjoining Station who appears to be acquainted with the facts and circumstances of the case, provided however, no male person under the age of 15 years or women shall be required to attend at any place other than the place in which such male person or woman resides.
Such persons whose attendance has been ordered by the police officer may be paid by reasonable expenses in this behalf.
The section empowers the police officer to summon a witness only during an investigation, i.e., an investigation in respect of a crime under this Chapter. But for the provisions of this section, the police will have to go to the persons who are acquainted with the facts of the case without sending for them; Manicka Reddy (in re:), MANU/TN/0430/1967 : AIR 1968 Mad 225.
Under section 161 of Cr PC, any police officer making an investigation under the provisions of the Code or any other police officer not below the rank prescribed by the State Government may examine orally any person supposed to be acquainted with the facts and circumstances of the case. Such person shall be bound to answer truly all question relating to such case put to him by such officer. But the persons giving any oral testimony may not answer any question which might have a tendency to expose him to a criminal charge or to a penalty or forfeiture [section 160(2)]. The police officer may reduce the oral statement of any witness to writing or may also be recorded by audio-video electronic means.
An order can be made requiring the attendance of 'any person' (except women and males under 15 years of age). The expression 'any person', in its ordinary meaning, including any person, though he might thereafter, become an accused. Investigation in crime often includes examination of a number of persons none of whom or all of whom might be suspected at the time. The words 'any person' will, therefore, include any person who may be possibly not even suspected then but subsequently be accused of the crime; Pakala Narayana Swami v. Emperor, MANU/PR/0001/1939 : AIR 1939 PC 47.
A statement made to the police officer by any person examined in the course of investigation recorded under section 161 of the Code is not and cannot be treated as substantive evidence except when falling within the provisions of Clause (1) of section 27 of the Indian Evidence Act. It may be used only for the purpose of contradicting the evidence of the prosecution witnesses and not for the purpose of corroborating their evidence nor for contradicting a person examined in the course of investigation who later figures either as a court-witness or as a defence witness; Shamim v. State of Bihar, 1986 Cr LJ 1383.
Following are the privileges of persons examined by the police:
(i) A person examined under section 161 Cr PC by the police with respect to an offence with which he may himself be charged and convicted is not bound to speak the truth and in such a case, conviction for giving false evidence would be illegal.
(ii) A statement made in answer to a question put by a police officer under section 161 Cr PC in course of investigation made by him is privileged and cannot be made the foundation of a charge of defamation; Hittu Bansi v. Sheolal Dinaji, MANU/NA/0128/1947 : AIR 1948 Nag 243.
(iii) No suit for damages shall lie for words spoken by any person in answer to the questions put by the investigating officer; Methu Ram Das v. Jagannath Dass, ILR 28 Cal 794.
(iv) A statement made by a person in answer to questions put by the police officer investigating the case cannot be made the basis of a charge under section 182 IPC. To give 'information' in section 182, IPC means to volunteer information; Emperor v. Nga Aung Po, 2 Cr LJ 474.
(v) A person answering questions put to him by the police cannot be convicted of an offence under section 211 IPC; Chinna Ramana Gowd v. Emperor, ILR 31 Mad 506.
Section 161(3) IPC gives discretion to a police officer to reduce into writing any statement made to him during investigation. If he exercises his discretion in favour of reducing the statement into writing, he is bound to make a separate and true record of the statement of each person whose statement he records. The matter does not rest with his direction here; Shive Sharnagat v. State, AIR 1953 Bhopal 21 (23). Failure to comply with the requirements of section 161(3) might effect the weight to be attached to the evidence of the witness, it does not render it inadmissible; Tilakeshwar v. State of Bihar, MANU/SC/0035/1955 : AIR 1956 SC 238 (240).
Value of the statements made before the police and its use as evidence have been discussed in section 162 Cr PC.
This section deals with the use of statements made to a police officer under section 161 Cr PC. Under the Indian Evidence Act, 1872, former statements made by a witness can be used to contradict him,1 to impeach his credit,2 to corroborate him,3 or to refresh his memory.4 However, section 162 does not apply to extra-judicial confession; State v. Ram Singh, 1973 Cr LJ 150 (HP).
Under section 162(1), the person making any statement in connection with the investigation being conducted by a police shall not sign the statement if it is reduced to writing, nor can this statement or any other record thereof can be used for any purpose (except those mentioned) at any inquiry or trial in respect of any offence under investigation at the time when such statements were made.
______________________
1. Vide section 145 of Evidence Act.
2. Vide section 155 of Evidence Act.
3. Vide section 157 of Evidence Act.
4. Vide section 159 of Evidence Act.
The word statement under section 161 of the Code, includes both oral and written statement and it will also include signs and gestures; A.T. Baby Warghese v. State of Kerala, 1981 Cr LJ 1165. Though word 'statement' has several meanings, but section 161 of the Code shows out only statements. written or oral, express or implied, made by a witness to the police during the course of investigation, and not what the witness saw or did. Conduct must be distinguished from speech; Mor Mohamud v. Emperor, AIR 1940 Sind 168.
The powers of the police to take statements of the accused or other detainees who are alleged to have committed some offence are quite wide. Not only can the police officials arrest and detain any person accused of an offence, they can interrogate him, record his statement and the statements of various eyewitnesses, and also under section 53 Cr PC seek medical examination of such persons. There was no such provision in the earlier code, but in view of the medico-legal advances, this had become imperative and the provision was included in the Cr PC. Medical Examination of all sorts, blood-test, test of semen, sputum and urine etc., has become a routine. The only proviso is that the medical test be conducted by a registered medical practitioner at the request of a Police Officer not below the rank of a Sub-Inspector and in case of females, such tests shall be carried out by the woman registered medical practitioner.
Section 162(1) provides that no statement made by any person to a police officer in the course of an investigation shall, if reduced to writing be signed by the person making it, nor shall any such statement or any record thereof, whether in a police diary or otherwise, or any part of such statement or record, be used for any purpose...at any inquiry or trial in respect of any offence under investigation at the time when such statement was made.
It is clear that the statements made to the police during the investigation of an offence cannot be, by virtue of this section, used at any other inquiry or trial. This ban relates not only to the trial or inquiry in respect of the offence in relation to which the statements were made, it also prohibits the use of such statement at the inquiry or trial in respect of any other offence which was under investigation by the police officer at the time when such statements were made.
This ban is, however, lifted to some extent by the proviso to section 162(1) which provides for a very limited use of such statements. It says when any witness whose statement has been reduced into writing, is called for the prosecution in such inquiry or trial, any part of his statement, if duly proved may be used by the accused and with the permission of the court, by prosecution, to contradict such witness in the manner provided by section 145 of the Indian Evidence Act, and when any part of such statement is so used, any part thereof may also be used in the re-examination of such witness, but for the purpose only of explaining any matter referred to in his cross-examination.
Provisions regarding recording of confessions and statements have been given in section 164 Cr PC.
"164. Recording of confessions and statements.-(1) Any Metropolitan Magistrate or Judicial Magistrate may, whether or not he has jurisdiction in the case, record any confession or statement made to him in the course of an investigation under this Chapter or under any other law for the time being
in force, or at any time afterwards before the commencement of the inquiry or trial:
Provided that any confession or statement made under this sub-section may also be recorded by audio-video electronic means in the presence of the advocate of the person accused of an offence:
Provided further that no confession shall be recorded by a police officer on whom any power of a Magistrate has been conferred under any law for the time being in force.
(2) The Magistrate shall, before recording any such confession, explain to the person making it that he is not bound to make a confession and that, if he does so, it may be used as evidence against him; and the Magistrate shall not record any such confession unless, upon questioning the person making it, he has reason to believe that it is being made voluntarily.
(3) If at any time before the confession is recorded, the person appearing before the Magistrate states that he is not willing to make the confession, the Magistrate shall not authorise the detention of such person in police custody.
(4) Any such confession shall be recorded in the manner provided in section 281 for recording the examination of an accused person and shall be signed by the person making the confession; and the Magistrate shall make a memorandum at the foot of such record to the following effect:-
"I have explained to (name) that he is not bound to make a confession and that, if he does so, any confession he may make may be used as evidence against him and I believe that this confession was voluntarily made. It was taken in my presence and hearing, and was read over to the person making it and admitted by him to be correct, and it contains a full and true account of the statement made by him.
(Signed) A.B.
Magistrate".
(5) Any statement (other than a confession) made under sub-section (1) shall be recorded in such manner hereinafter provided for the recording of evidence as is, in the opinion of the Magistrate, best fitted to the circumstances of the case; and the Magistrate shall have power to administer oath to the person whose statement is so recorded.
(6) The Magistrate recording a confession or statement under this section shall forward it to the Magistrate by whom the case is to be inquired into or tried."
This section should be read together with sections 24, 25, 26, 27, 28, 29 and 30 of the Evidence Act. If so read, we find that:
(i) a confession shall not be made to a police officer;
(ii) if a person in police custody desires to make a confession , he must do so in the presence of a Magistrate;
(iii) the Magistrate shall not record it unless he is, upon enquiry from the person making it, satisfied that it is voluntary;
(iv) when the Magistrate records it, he shall record it in the manner provided for in section 164; and
(v) only when so recorded, the confession will become relevant and admissible in evidence; King v. Saw Min, AIR 1939 Rang 219 (222).
Vide section 164(1), any Metropolitan Magistrate or Judicial Magistrate, whether he has jurisdiction in the case or not, may record any confession or statement made to him in the course of an investigation under the provisions of this code or any other law, or at any time afterwards but before the commencement of the inquiry or trial.
The confession can be recorded by audio-video electronic means in presence advocate of accused.
This section specifically prohibits any police officer from recording any confession or statement, even if the power of a Magistrate has been conferred on such a police officer.
Under section 164(2), the Magistrate is required, before recording any such confession, to explain to the person making it that he is not bound to make a confession and that, if he does so, it may be used as evidence against him; and the Magistrate shall not record such confession, unless upon questioning the person making it, he has a reason to believe that it is being made voluntarily.
Further, sub-section (3) says that if at any time before the confession is recorded, the person appearing before the Magistrate states that he is not willing to make the confession, the Magistrate shall not authorise the detention of such person in police custody.
The confession recorded under this section has to be on a proper form and in the prescribed manner. It has to be certified and signed by the Magistrate who recorded confession. The fact, that such statement could be used against such person was not bound to make a confession, has to be certified by the Magistrate.
There is a vital distinction between recording statements of accused persons and the recording of statements of witnesses. The same precautions which are prescribed for recording the confession of accused persons need not be observed while recording the statements of witnesses, and, therefore, it is not necessary to exclude the police from the court, though the Magistrates have the power, if they think it necessary to ensure the voluntary character of the witnesses' statements and have any reasons to apprehend that the police are exercising influence over them, to exclude the police or in fact any other person from the court during their examination under this section. But they do not require to do so by law and the practice is likely to lead to the statements of witnesses being incomplete, as only the police who have investigated the case know the information which the witnesses are likely to give and the Magistrate without their help will not be able to elicit all that the witnesses are able to speak about. In such a case, it is difficult to discount the evidence of the witnesses in Court if their statements under this section contain any omissions and are, therefore, not fully corroborative of the evidence in Court; Pullamma v. Emperor, 1932 Mad Cr C 67.
Section 195A of the Code empowers the witness to file a complaint in relation to an offence under section 195A of the Indian Penal Code which provides for the punishment for threatening any person to give false evidence. Section 195A of the Criminal Procedure Code reads as:
"195A. Procedure for witnesses in case of threatening, etc.-A witness or any other person may file a complaint in relation to an offence under section 195A of the Indian Penal Code (45 of 1860)."
Section 165 of the Code gives power to search and seizure to the police officer conducting investigation into any offence.
Under section 165(1), whenever an officer-in-charge of a police station or a police officer making an investigation has reasonable ground for believing that any offence which he is authorised to investigate may be found in any place within the limits of the police station of which he is in-charge, or to which he is attached, and that such things cannot in his opinion be otherwise obtained without undue delay, such officer may, after recording in writing the grounds of his belief and specifying in such writing, so far as possible, the thing for which search is to be made, search, or cause search to be made, for such thing in any place within the limits of such station.
Under sub-section (2), the search is to be, if practicable, conducted in person by such police officer.
Sub-section (3) provides for a situation when the police officer in-charge of a police station is unable to conduct the search in person and there is no person competent to make the search present at the time. In such a situation, he may, after recording in writing his reasons for so doing, require any officer subordinate to him to make the search, under a written order, specifying the place to be searched. However, the search made under this section shall be, as far as may be, in accordance with the provisions of section 100 which relates to search-warrants.
Sub-section (4) provides that provisions of this code as to search warrants and the general provisions as to searches contained in section 100, apply to a search made under this section.
Sub-section (5) provides that copies of any record made under this section shall be immediately sent to the nearest Magistrate empowered to take cognizance of the offence, and the owner or occupier of the place searched shall, on application, be furnished free of cost, with a copy of the same by the Magistrate.
The power to search is incidental to the investigation of the offence which the officer is authorised to investigate; State of Assam v. Upendra Nath Rajkhowa, 1975 Cr LJ 354 (Guj). Under section 165, four conditions have been imposed on the police officer:
(i) the police officer must have reasonable ground for believing that anything necessary for the purpose of an investigation of an offence cannot, in his opinion, be obtained otherwise than by making a search without undue delay;
(ii) he should record in writing the grounds of his belief and specify in such writing as far as possible the things for which the search is to be made;
(iii) he must conduct the search, if practicable, in person; and
(iv) if it is not practicable to make the search himself, he must record in writing the reasons for not himself making the search and shall authorise in writing, a subordinate officer to make the search after specifying in writing the place to be reached, and, so far as possible, the things for which the search is to be made.
In State of Rajasthan v. Rehman, MANU/SC/0181/1959 : AIR 1960 SC 210; it was observed that, in the matter of a search under this section, the legislature has laid down the following safeguards:
(i) the empowered officer must have reasonable grounds for believing that anything necessary for the purpose of investigation into an offence (or where the search is in connection with the liability to pay tax, for the purpose of recovery of tax) may be found in any place;
(ii) he must be of the opinion that such thing cannot be otherwise got without undue delay;
(iii) he must record in writing the grounds of his belief; and
(iv) he must specify in such writing so far as possible the thing for which the search is made.
In State of Madhya Pradesh v. Paltan Mallah, MANU/SC/0050/2005 : AIR 2005 SC 733, the Supreme Court held that alleged illegality of search by investigating officer does not vitiate seizure unless it had caused prejudice to the accused and evidence regarding seizure cannot be discarded merely because the witness accompanying search and seizure was not from the same locality.
There is nothing in Article 20 of the Constitution or in any of its other articles to prohibit the police from searching either the person of the accused or his premises in the manner laid down by the Code. Nor are the powers of the Magistrate to issue a search warrant in the circumstances set out in the Code abrogated by the Constitution; Sorualingam Chettiar (in re:), MANU/TN/0279/1955 : AIR 1955 Mad 685.
Finally, this must be noted that the refusal or neglect to attend or to witness a search under this section shall be deemed to be an offence under section 187 of the Indian Penal Code.
There is difference between seizing of a document and impounding a document. A seizure is made at a particular moment when a person or authority takes into his possession some property which was earlier not in his possession. Thus, seizure is done at particular moment of time, However, if after seizing of a property or document the said property or document is retained for some period of time, when such retention amounts to impounding of the property/or document; Suresh Nanda v. C.B.I., MANU/SC/7020/2008 : AIR 2008 SC 1414.
Shyam Lal v. State of Madhya Pradesh, MANU/SC/0248/1972 : AIR 1972 SC 886; is illustrative of the powers of the police to make search and seizure and also of the procedure which they have to follow while conducting such searches, and the consequences for omission to follow such prescribed procedure.
Facts:
Circle Inspector Ranjit Singh received a report from a lorry owner Jagat Singh that the Barrier Inspector Shyam Lal (the appellant) was demanding a bribe from his lorry driver and that in order to pressurize him further had seized his driving licence.
The Circle Inspector laid a trap to catch Shyam Lal red handed while accepting the bribe demanded by him. Two other accused Narayan Singh and Udho Prasad working in the same barrier office were also a party to the acceptance of the bribe. The marked currency notes were accepted by the accused Narayan Singh.
Thereafter, the Circle Inspector disclosed his identity and after having his person searched, went inside the inner apartment and recovered the currency notes lying beneath an overcoat. The notes were seized. While he was preparing the punchnama, accused Udho Prasad arrived on the scene and started taking the Circle Inspector to task for having entered his office without permission or reference to him. He then asked accused Narayan Singh why he did not sign the seizure memo. Accused Shyam Lal also reprimanded the Police Officer and questioned his authority. The Circle Inspector asserted that the authority was conferred upon him to make a search. But accused Shyam Lal asked him to give him in writing that he had entered the Barrier Office without the permission of the person in-charge otherwise he would not be allowed to go out. The Circle Inspector then assured him and went back to the Dak Bungalow.
He was allowed to leave, and he started getting out without getting the signature of the accused Narayan Singh on the seizure memo. But as soon as he came to the road, Udho Prasad again insisted on the writing being given whereupon Shyamlal caught the Circle Inspector by his waist and forcibly lifted him, took him to the barrier office and threw him on a chair. There under threats, the Circle Inspector was compelled to give it in writing that he had made the search. It was only thereafter that he was allowed to go.
The three accused were prosecuted and brought to trial on various offences.
It was observed by the Apex Court that, on behalf of the appellants it was contended that notwithstanding the findings of both the courts that the appellants had wrongfully restrained PW-1 and also assaulted and used criminal force against him, the several acts alleged against them do not constitute any offence as they had a right to obstruct a search made in contravention of the provision of section 165 Cr PC which made the search illegal.
It was accordingly submitted that when reasons are not recorded as required by section 165, Cr PC for making a search during investigation and as PW-1 did not, as required under section 103, Cr PC give a copy of the List of the currency notes seized from Narayan Singh, the entire investigation is vitiated and consequently obstruction caused in the subsequent process of investigation will not constitute any offence.
Their Lordships observed that there was a fallacy in these submissions. That the investigation commenced with the information of a cognizable offence, and a trap was laid and PW-1 proceeded to the barrier for laying a trap and entered the barrier office to make a search, does not admit of doubt.
The non-conformity with any of the requirements of that provision (section 105) must be confined to that part of the investigation which relates to the actual search and seizure but once the search and seizure is complete that provisions ceases to have any application to the subsequent steps in the investigation.
It may be that an obstruction during the course of a search not conducted in conformity with the provisions of section 165 Cr PC might be justified but there is no warrant for the further submission that the person in whose premises a search is made or from whom articles are seized is entitled to act in the manner the appellants have acted in preventing PW-1 from discharging his official duties.
It was held that, even if the search is illegal, it does not justify any obstruction or other criminal acts committed against the person who had conducted the search. By no stretch of logic or reason can the justification for obstruction during the course of search in contravention of the provision of section 165 entitle a person to force a public servant or any other person do to acts contrary to their volition.
With these observations, their Lordships dismissed the appeal but set aside the conviction of the appellant under section 332 on the ground that they were not charged with that offence and, therefore, they are entitled to an acquittal as they were prejudiced thereby. All other convictions and sentences were upheld.
In Nazir Ahmed v. King Emperor, MANU/PR/0020/1936 : AIR 1936 PC 253; the facts were that on 11th October, 1934 night, the house of one Guran Das was broken into and a theft was perpetrated. The villagers attempted to intercept the dacoits. There was some shooting by the dacoits with the result that one villager was wounded and died.
The appellant and some other men were later apprehended and kept in custody. At the stage of shooting during robbery, none had identified the dacoits, but a camel driver who had met them later in the night gave evidence and identified the appellant as one in the company of another accused.
Another evidence was of a first class Magistrate who was entitled to proceed under section 164 under the order of the District Magistrate, and he visited the scene of the dacoity. The accused in handcuffs also accompanied him. According to the Magistrate, after his arrival at the scene, the appellant confessed his participation in the robbery and finding a revolver in the course of his pursuit.
At the sessions, the appellant denied having made any confession, but the evidence of the Magistrate was that he (the appellant) had confessed. The additional judge acting on the admission found the appellant guilty and therefore sentenced him to death. On appeal, the High Court held the evidence admissible in the form in which it had been given, and confirmed the sentence.
The main point for consideration was whether the oral evidence of a magistrate was admissible in evidence.
It was contended on behalf of the respondent that the evidence given by the Magistrate is not to be confused with any evidence by virtue of section 164 and it had nothing to do with sections 17, 21, 24 or 26 of the Evidence Act and it was just like any other evidence tendered by any person other than a Magistrate. It was also argued that the matter would, in such a case, not be one which had to be reduced into writing.
On behalf of the appellant, it was contended that a Magistrate was very much different from a private person and that his case and his powers were dealt with and were delimited by the Cr PC and if this special act dealing with a special subject-matter set a limit to the powers of the Magistrate, the general act could not be called in aid so as to allow him to do what he could not do under the special Act i.e. Cr PC.
Their Lordships observed that whether a Magistrate records any confession, it is a matter of duty and not of obligation. The role which applies is that where a power is given to do a certain thing in a certain way, the thing must be done in that way or not done at all. It was observed that the procedure for recording confessions is clearly prescribed in that how Magistrate during investigations is supposed to record the confessions. In their Lordships' view, it would be unfortunate if magistrates were asked generally to act rather as police officers than as judicial persons, to be, by reason of their position, freed from the disability that attaches to police officers under section 162 of the Code, and to be, at the same time, free notwithstanding their position as Magistrate, from any obligation to make records under section 164 Cr PC.
With these remarks, their Lordships allowed the appeal.
In Tehsildar Singh v. State of Uttar Pradesh, AIR 1956 SC 1012; the facts of the case were that the appellants, members of the notorious gang of dacoits came to know that two persons Asa Ram and Bankey Chand acted as informers against the gang. They organised a raid with a view to do away with these two persons. They attacked a party of men, who had gathered for certain celebrations, where these informers were also participating. The informers, however, escaped. Three persons were killed. Deceased Bharat Singh's face resembled Asa Ram's and the dacoits declared that Asa Ram was killed.
When one of the prosecution witnesses was in the witness box, the counsel for appellants put to him the following two questions in cross-examination:
1. "Did you state to the investigating officer that the gang rolled the dead bodies of Nathi, Saktu and Bharat Singh to scrutinize them? Did you tell him that the face of Asa Ram resembled that of the deceased Bharat Singh?"
2. Did you state to the investigating officer about the presence of the gas lantern?
The Session Judge disallowed these questions. The appellants were convicted and their conviction was confirmed by the High Court. Hence appeal.
It was contended on behalf of the appellants that section 162 of Code of Criminal Procedure by its own operation:
(1) attracts the provision of section 145 of the Evidence Act and under the latter section, the whole vista of cross-examination on the basis of the previous statement in writing made by the witness before the police is open to the accused.
(2) The word "contradiction" is of such wide connotation that it takes in all material omissions, and a court can decide whether these in any such omission as to amount to contradiction, only after 'the question is put', answered and the relevant statement or part of it, is marked.
In view of the above, it was contended that the High Court erred in holding that these two questions were intended to be put orally in cross-examination to the prosecution witnesses whereas the advocate for the accused intended to put to the witnesses many other omissions to establish that there was a development in the prosecution case from time to time. The accused, therefore, had no proper opportunity for cross-examination.
Their Lordships observed that the answers to the above contention depend upon the true interpretation of sections 161 and 162 of Cr PC and the provisions to section 162.
The procedure prescribed for "contradicting" a witness by his previous statement made during investigation is that if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts which are to be used for the purpose of contradicting him.
The proviso to section 162 only enables the accused to make use of such statements to contradict a witness in the manner provided by section 145 of the Evidence Act. It would be doing violence to the language of the proviso if the said statement be allowed to be used for the purpose of cross examining a witness within the meaning of section 145 para 1 of the Evidence Act.
The contradiction under section 163 should be between what a witness asserted in the witness box and what he stated before the police officer, and not between what he said he had stated before the police officer and what he actually said before him.
In such a case, the question could not be asked at all: only questions to contradict can be put and the questions here posed were not to contradict: they lead to an answer which is contradicted by the police statement.
Hence the appeal was dismissed.
In Abhinandan Jha v. Dinesh Mishra, AIR 1961 SC 117; the fact was, Dinesh Mishra, respondent lodged an FIR at the police station that he saw the house of one A, situated on the northern side of house, burning, stating, inter alia, that he saw the petitioners Abhinandan Jha & others running away from the scene.
The police made investigation and submitted what is called a 'final report' under section 173(2) of the Code of Criminal Procedure, 1973. The SDM received this report and meanwhile, the respondent filed a protest petition challenging the correctness of the report submitted by the police. The Magistrate recalled the police diary and after hearing the respondent and the Public Prosecutor, passed an order directing the police to submit a charge sheet against the petitioners.
Whether a magistrate can direct the police to submit a charge-sheet, when the police, after investigating the commission of a cognizable offence submits a final report under section 173 of Cr PC, 1973.
The Supreme Court observed that, in order to appreciate the duties of the police, in the matter of investigation of offences, as well as their powers, it is necessary to refer to the provisions contained in Chapter XII of the Code of Criminal Procedure (Section 154 to Section 176). These provisions have been made for securing that an investigation does take place into a reported offence and the investigation is carried out within the limits of the law, without causing any harassment to the accused and is also completed without unnecessary or undue delay. But the manner and method of conducting investigation has been left entirely to the police, and the Magistrate has no power under any of these provisions, to interfere with the same. The formation of an opinion as to whether or not there is case to place the accused on trial has been left to the officer in charge of a police station.
The Code as such does not use the expression 'Charge Sheet' or Final 'Report'. But it is understood in the Police Manual containing Rules and Regulations, that a report by the police, filed under section 170, of the Code (Cases to be sent to Magistrate when evidence is sufficient) is referred to as 'Charge Sheet'. But in respect of the report under section 169 (Release of accused when evidence is insufficient), it is termed variously, in different States as either 'deferred charge', 'final report' or 'summary'.
The investigation, under the Code, takes several aspects, and stages ending ultimately with the formation of an opinion by the police as to whether, on the material discovered and collected, a case is make out to place the accused on trial before a magistrate. The submission of a charge sheet or a final report, is dependent upon the nature of the opinion formed.
The formation of the opinion is the final step in the investigation and that final step is to be taken only by the police and not by another authority.
Thus, there is no power expressly or impliedly conferred under the Code, on a magistrate to call upon the police to submit a charge sheet, when they have sent a report under section 169 of the Code, that there is no case made out for sending up the accused for trial.
The appeal was, therefore, allowed.
In Madhu Bala v. Suresh Kumar, MANU/SC/0806/1997 : (1997) 8 SCC 476; the fact was on
18th February, 1988, the appellant filed a complaint against the three respondents, who are her husband, and father-in-law and mother-in-law respectively, before the Chief Judicial Magistrate, Kurukshetra alleging commission of offences under sections 406 and 498A of the Indian Penal Code by them.
The learned Magistrate framed charge against the three respondents under section 406, IPC only as, according to him, the offence under
section 498A, IPC was allegedly committed on the district of Karnal. Against the framing of the charge, the respondents moved the Sessions Judge in revision, but without success.
The High Court quashed the order of the Chief Judicial Magistrate of Kurukshetra and Karnal respectively. According to the High Court, under section 156(3) of the Code, a Magistrate can only direct investigation by the police but has no power to direct "registration of a case".
It was observed that whenever a Magistrate directs an investigation on a "complaint" the police has to register a cognizable case on that complaint treating the same as the FIR and comply with the requirements of the above rules. In our opinion, when an order for investigation under section 156(3) of the Code is to be made, the proper direction to the police would be "to register a case at the police station treating the complaint as the FIR and investigate into the same".
The Court held in the following words:
"We repeat and reiterate that such a power inheres in section 156(3), for investigation directed thereunder can only be in the complaint filed before the Magistrate on which a case has to be formally registered in the police station treating the same as the FIR. If the reasoning of the Punjab and Haryana High Court is taken to its logical conclusion, it would mean that if a Magistrate issues a direction to submit a report under section 173(2) of the Code after completion of investigation while passing an order under section 156(3), it would be equally bad for the said section only "directs investigation" and nothing more. Needless to say, such a conclusion would be fallacious, for while with the registration of a case by the police on the complaint, the investigation directed under section 156(3) commences, with the submission of the "police report" under section 173(2), it culminates."
© Universal law Publishing Co.