Information to the Police and their Powers to Investigate (Sec. 154-176)
- Information to the Police and their Powers to Investigate (Sec. 154-176)
- Sec. 154 – Information in cognizable cases
- Sec. 155 – Information as to non-cognizable cases & investigation of such cases.
- Sec. 156 – Police officer’s power to investigate cognizable case.
- Sec. 157 – Procedure for Investigation
- Sec. 158 – procedure of submitting the report
- Sec. 159 – Power of Magistrate to hold investigation or preliminary inquiry
- Sec. 160 – Police Officer’s power to require attendance of witness.
- Sec. 161 – Examination of Witnesses by Police.
- Sec. 162 – Statements to Police not be signed & Use of Statements in Evidence.
- Sec. 163 – No inducement to be offered
- Sec. 164 – Recording of Confessions and Statements.
- Sec. 165 – Search by police officer.
- Sec. 166 – When Officer-in-charge of police station may require another to issue search warrant.
- Sec. 167 – Procedure when investigation cannot be completed in twenty-four hours.
- Sec. 168 – Report of investigation by subordinate police officer.
- Sec. 169 – Release of accused when the evidence is deficient.
- S.170 – Cases to be sent to Magistrate when evidence is sufficient.
- Sec. 171 – Complainant and witness not to be required to accompany police officer and not to be subjected to restrain.
- Sec. 172 – diary of proceedings in investigation.
- Sec. 173 – Report of Police officer on completion of investigation.
- Sec. 174 – Police to enquire and report suicide, etc.
- Sec. 175 – Power to summon persons
- Sec. 176 – inquiry magistrate into cause of death
Sec. 154 – Information in cognizable cases
An analysis of Section 154
- Jurisdiction – information has to be given to a police officer who has the jurisdiction to investigate the case.
- Writing – The information shall be reduced in writing by the officer himself.
- Signature – The informant shall sign after the information recorded is read over to him.
- Station Diary or General Diary – The information so recorded shall be kept in the station diary or the general diary maintained by the police station.
- Copy – The copy of the information so recorded shall be handed over to the informant.
- Information given to a police officer and reduced in writing as required by section 154 is termed as first information.
- The term FIR is not mentioned under Cr.P.C., however it is understood to mean information recorded under this section.
- It does not constitute as substantive evidence.
Object of FIR
- To set criminal law in motion.
- To obtain information about the alleged criminal activity.
- To take suitable steps to trace and bring to book the guilty.
- FIR cannot be used for contradicting or discrediting other witnesses.
- Variance in FIR may not always cause prejudice to the prosecution case.
Two kinds of FIR
The Code contemplates two kinds of FIRs, as mentioned below:
- By Informant (u/s. 154) – An FIR can be lodged by the informant to the concerned police at the Police station.
- By Police (u/s. 157) – Second kind of FIR can be lodged by the Police upon receiving a information or other than by way of an informant.
Spontaneity/Importance of earliest version/Prompt Report
- The whole object of lodging an FIR is that it contains the earliest version of the events constituting occurrence of an alleged crime.
- The provisions of S.154 are also enacted to obtain early information of alleged criminal activity.
- If an FIR lacks spontaneity, the Courts shall scrutinize it to minute detail before placing reliance on the same.
- However, the mere fact that the FIR has been lodged early does not rule out embellishment or falsehood in every case.
- Earliest version of the FIR has its own importance.
- A delay in lodging the FIR is likely to cause colored version of the contents contained therein.
Delay in lodging FIR
- Delay in lodging an FIR cannot be itself a ground to doubt the prosecution case.
- Only undue and unexplained delay would have a detrimental effect on the prosecution story.
- Whether or not the delay caused in lodging the FIR causes a dent in the prosecution story has to be deciphered on scrutinizing the explanation offered for the delay in light of totality of the facts and circumstances of the particular case.
- In the case of Amar Singh v. Balwinder Singh the Supreme Court held as follows with respect to delay in lodging FIR:
- There is no hard and fast rule that delay in lodging FIR would automatically render the prosecution case doubtful.
- There is no mathematical formulae by which an inference may be drawn either way merely on account of delay in lodging of FIR.
- It depends on the facts and circumstances of the case.
- In case proper explanation of the delay is tendered, then such delay would not be fatal to the prosecution case.
- For instance, delay due to medical aid or account of obtaining legal advice is justified.
Evidentiary Value of FIR
- An FIR is not a substantial evidence.
- It can only be used to contradict the maker thereof or for contradicting his evidence.
- It can also be used to corroborate the statement of the maker under section 157 of the Evidence Act.
- An accused cannot be convicted merely on basis of mere allegations in FIR.
Enquiry by police before recording FIR
- An enquiry made by the Police before recording FIR is not contemplated, though it is not prohibited.
- If the information given is not clear or creates a doubt as to whether it discloses a commission of a cognizable offence, in such a case preliminary enquiry can be held.
Right of accused to obtain FIR
- An FIR is a public document, and the accused has a right to obtain the same.
- The FIR shall be given to the accused before the charge sheet is filed in the Court.
- A copy of the same shall be handed over the accused at the time of arrest.
- The liability is on the person who has the custody of the FIR to give a copy thereof to the person who has interest in the same or whose interest is adversely affected.
- An FIR which is retracted cannot be used to gun down the accused.
- As a general rule same FIR cannot be registered against the same accused in respect of the same case.
- But where there are rival versions of the same episode, they would normally take shape of two different FIRs.
- The Police has to investigate the cognizable offence and other connected occurrences qua such FIR, and then collectively file a report u/s. 173.
- However, a counter case which forms the contradictory version of the first FIR cannot be called as a second FIR.
Quashing of FIR
- The High Court has the power to quash an FIR under Article 226 of the Constitution or Section 482 of Cr.P.C.
- However, such power shall be used with great care and caution.
- It would be unjust to quash the FIR even before the investigation has begun.
- A second FIR on the same set of facts and circumstances shall be liable to be quashed by the High Court by virtue of its inherent powers.
- Moreover, if an FIR does not prime facie disclose occurrence of a cognizable offence, it is liable to be quashed.
Omissions in FIR
- The FIR is not the encyclopedia of the entire prosecution case.
- Therefore, it need not contain all the details of the incident.
- The very object of lodging an FIR would be frustrated if the concerned officer or the complainant would be required to disclose each and every minute detail about the incident.
- The omission of facts in the FIR has to be considered along with the other evidence to determine whether the fact so omitted never happened at all.
FIR & Investigation outside Jurisdiction of Police Station
- The police officer has the power to investigate into a crime committed outside the local jurisdiction.
- In the case of Satvinder Kaur v. State (Govt. of NCT of Delhi) the original complaint was filed by the petitioner in the police station at Patiala. Later another complaint filed by the petitioner in a police station in Delhi. The Supreme Court ruled that the Delhi Police has in view of S.177 & 178 CrPC, power to conduct the investigation.
Safeguards to ensure evidentiary value of FIR
- The FIR shall be recorded verbatim in the very language of the informant as far as it is possible.
- It shall be read over and explained to the informant.
- It shall be the true and faithful version of the information given by the informant.
- A copy of the FIR shall be given to the informant and the accused.
Sec. 155 – Information as to non-cognizable cases & investigation of such cases.
Analysis of Section 155
- Information as to occurrence of non-cognizable offence shall be entered into a Daily Diary maintained by the officer in charge of a police station.
- Such information shall be referred to the magistrate.
- Therefore, no police officer shall investigate into a non-cognizable offence without order of the Magistrate.
- Once the Police officer receives the orders, he may exercise the same powers of investigation as in the case of cognizable offence.
- Except for the power to arrest without warrant.
- In case there are multiple offences and one of them is a cognizable, the case shall be deemed to be a cognizable offence regardless of the fact that there are other non-cognizable offences also.
Consequences of investigating without the orders of a Magistrate.
- S.155(2) is mandatory in nature.
- Thus, any investigation into a non-cognizable offence without the order of the Magistrate shall be illegal.
- Subsequent permission granted cannot cure the illegality.
- A charge sheet filed without the permission of the Court as contemplated u/s. 155(2) shall be quashed.
Arrest in non – cognizable offences
- Arrest in a non-cognizable offence, without obtaining a warrant is illegal.
Power of the Magistrate to direct investigation.
The Magistrate can order investigation in the following cases:
- On application of the first informant;
- On request of a private party;
- Suo moto
Therefore, it is not necessary that the Magistrate can only order investigation into a non-cognizable offence at the instance of a request made by the Police officer.
Sec. 156 – Police officer’s power to investigate cognizable case.
Scope & Application
- By virtue of Section 156 in case of a cognizable offence, the Police may start investigation without the order of any Court.
- The judiciary shall refrain from interfering in the investigative powers of the police.
- However, such investigation can be quashed by the order of a High Court u/s. 482 or under Article 226, in rare circumstances, when the investigation is prime facie without any merits.
“Officer not empowered to investigate” (Sub Sec. 2)
- Sub sec. 2 bars raising of any objection that the investigation was carried out by an officer who was not competent/empowered to do so.
- In the case of Murlidhar Ali Siddqui v. State of UP it was held, where an ASI not competent to investigate a murder case conducts investigation of the case, in the absence of miscarriage of justice, trial would not be vitiated.
Magistrate’s Order to Police for investigation (Sub Sec. 3)
- It enables a Magistrate to order the investigation of an offence of which he may have taken cognizance under sec. 190.
- Sec. 190 provides for the following cases where a Magistrate may take cognizance of any offence:
- Upon receiving a complaint.
- Upon a Police report.
- Upon information received from any person.
- An investigation u/s. 156(3) is only permitted for a cognizable offence.
- The Magistrate can direct investigation under section 156(3) CrPC only to the Police Station of the area and not to any other police station or police officer.
Interference in investigation by Courts
- There is a clear demarcation of functions between the judiciary and the police investigation.
- The Courts are usually slow to interfere in the investigation by Police.
- However, the Courts may do so in any of the following instances:
- Violation of fundamental rights;
- Miscarriage of justice;
- Investigation is contrary to procedural safeguards;
- Violation of rights of the accused.
Sec. 157 – Procedure for Investigation
Scope & Application
- The investigation of a cognizable offence begins when a police officer in charge of a police station has reason to suspect the commission of a cognizable offence.
- The basis of suspicion can be formed on two grounds:
- FIR received under section 154.
- Any other information received by the Police officer as contemplated by section 157.
- The provision is designed to keep the Magistrate informed of the investigation and if necessary to give appropriate directions.
Commencement of Investigation
The commencement of investigation in a cognizable offence by a Police Officer is subject to two conditions:
- Firstly, the Police Officer should have a reason to suspect the commission of a cognizable offence;
- Secondly, he should subjectively satisfy himself as to whether there is sufficient ground for entering on an investigation.
- The Police officer has to draw his satisfaction from the materials which are placed before him i.e., allegation in the FIR, documents etc.
- Therefore, the Police has no unfettered discretion to commence investigation under Sec. 157.
Report to Magistrate
- The concerned Police officer shall make a report of his prime facie opinion about the commission of the cognizable based on the material he has and send the same to the Magistrate having the local jurisdiction.
- The purpose of sending the report to the Magistrate is to ensure that he is informed and control the investigation.
- Mere delay in receipt of the such report to the Magistrate shall have no effect on the investigation.
- However, if there is unexplained delay in sending the report to the Magistrate, then it may draw an inference towards the prosecution story being tainted.
- A defective investigation would not lead to total rejection of the prosecution story.
- It is a settled position of law that in case of defective investigation, the Court has to circumspect in evaluating the evidence.
- It would be unjust for the victim if the accused is let scots free on basis of defective investigation.
Procedure in Rape cases
- The recording of statement of the victim shall be conduct at the residence of the victim or in the place of her choice.
- Such statement shall be recorded in presence of her:
- Parents; or
- Guardian; or
- near relatives; or
- social worker of the locality.
- As far as it is practicable the statements shall be recorded by a Woman Police officer.
Sec. 158 – procedure of submitting the report
- It provides that if the State Govt. directs, the report u/s. 156 shall be submitted to the Magistrate by a superior officer of the Police.
- Such superior officer may give instructions to the officer in charge of the police station to transmit the report without any delay.
- A delay in sending the report would not be generally fatal to the prosecution case.
Sec. 159 – Power of Magistrate to hold investigation or preliminary inquiry
- It empowers magistrate to conduct inquiry only after submission of the report by the Police officer.
- On receipt of such report the Magistrate may dismiss it or order an inquiry.
- However, the Magistrate has no power to stop investigation and order magisterial inquiry.
- Preliminary inquiry includes everything except for a trial.
Sec. 160 – Police Officer’s power to require attendance of witness.
- S.160 is intended to assist the Police Officials during the investigation by giving them an opportunity to ask questions to certain persons who are acquainted with the facts and circumstances of the case.
- The Officials can enforce attendance of witnesses by way of S.160.
- It is to be noted that the Police Official cannot ask for production of documents under section 160.
- This section does not authorize a police official to require attendance of an accused person with a view to his answering the charge.
Special Category of Persons u/s. 160
S.160 provides that the following persons shall be examined at their residence and nowhere else:
- Male below 15 years of age;
- Male above 65 years of age:
- Female of any age;
- Mentally disabled person;
- Physically disabled person.
Reasonable Expenses payable to witness
- S.160 contemplates payment of reasonable expenses of the witnesses which they would incur while they are asked to attend at places other than their residence.
Case Law – Sube Singh v. State of Haryana
Where there is a reasonable cause for the Police to think that the family members of accused might know about his whereabouts, the repeated questioning of the family member of accused, either at their houses or by calling them to the Police Station/Post is part of investigation process and cannot, per se, be considered as harassment or violation of Article 21.
Sec. 161 – Examination of Witnesses by Police.
Scope & Application
- A police officer can examine a person acquainted with the facts of the case, and reduce his statements in writing by virtue of Section 161.
- Such statements can only be used to contradict and corroborate evidence tendered by a witness.
- A major contradiction in statements u/ds. 161 would be helpful in impeaching the credit of witness.
- The substance of an interrogation recorded during investigation is not a statement within the meaning of S.161 CrPC.
Admissibility of Statements u/s. 161
- The statements u/s. 161 are not admissible in evidence per se.
- They can only be used for the limited purpose of contradicting and corroborating the testimony of witnesses during the trial.
- However, if a statement is tendered u/s. 27 of the Evidence Act, which leads to the discovery, such statement would be admissible.
Duty to record statements without delay
- The statements u/s. 161 must be recorded at the earliest opportunity.
- If the IO deliberately fails to record the statements for a considerable long period, the evidentiary value of such statements which are recorded subsequently is diminished.
- However, delay in recording simpliciter cannot be urged as a ground of rejecting the statements all together, only unexplained delay shall have such effect on the statements so made.
Procedure of recording the Statements
- This section prohibits the making of precis (summary) of a statement of a witness.
- The statement must be recorded as it is made and should be in indirect form of speech.
- The writing should be a record in the first person.
Duty to speak the truth while deposing u/s. 161
- The person is bound to answer truly all the questions relating to a case put to him during examination.
- However, he is not bound to answer such questions which would have tendency to expose him to a criminal charge or penalty or forfeiture.
Contradictions, Improvements, Variations & Omissions
- Variations in statements recorded during trial and while under examination u/s. 161 are natural.
- But if there are certain major contradictions, they would be the best material to impeach the credibility of the witness.
- Statements u/s. 161 are not a substantive piece of evidence, therefore they can only be used to prove contradictions, variations, omissions and improvements at the stage of trial.
Statement becoming Dying Declaration
- A statement made by an injured person to a police officer is a statement made within the meaning of this section.
- But where such person dies subsequently it can be used as dying declaration under section 32 of the Evidence Act.
Sec. 162 – Statements to Police not be signed & Use of Statements in Evidence.
Scope & Application
- Sec. 162 mainly provides for two things:
- The statements made to the police which are reduced in writing shall not be signed; and
- Such statements shall only be used at any inquiry or trial in respect of any offence under investigation at the time when such statement was made.
- Such statements can also be used during re – examination as provided u/s. 145 of the Evidence Act.
- The statement shall only be made after the investigation has started.
Meaning of ‘Statement’
- The expression statement referred to u/s. 162, is the statement recorded u/s. 161(3).
- It means the entirety of facts stated by a witness when he was examined.
Statement u/s. 161 should not be signed
- The person giving the statement is not required to sign the statement as mandated by S.162.
- In case the statement is signed, the weight attached to the same diminishes, however it does not make it inadmissible.
- The bar of S.162 (regarding not taking signatures) operated on the investigation agency and not the Court.
- Therefore, the Magistrate can take cognizance of the offence on the basis of signed statement of a witness under section 161.
Consequences when the Statement is destroyed
- If the statement is destroyed, the accused is robbed of his statutory means of cross examination and thereby denied the opportunity of effectively cross-examining prosecution witnesses.
- When the statements are not made available to the accused, an inference, which is almost irresistible, arises of prejudice to the accused.
Use of Statement for refreshing memory
- In case the witness uses his signed statement for refreshing the memory, the same would not render the evidence inadmissible.
- But on the same hand the value of his evidence may be seriously impaired as a consequence thereof.
Protection to the accused
- S.162 is conceived to protect an accused creating an absolute bar against the previous statement made before the police officer being used for any purpose whatsoever.
- The obvious reason is that the previous statement under the circumstances was not made inspiring confidence.
Sec. 163 – No inducement to be offered
- The object is to be prevent the witness from changing his statement, at the time of trial out of fear.
- The section prohibits a police officer from offering any inducement, threat or promise as provided u/s. 24 of the Evidence Act.
- The police officer shall not prevent by any caution any person from making any statement which he may be disposed to make out of his own free will.
Sec. 164 – Recording of Confessions and Statements.
Importance of Section 164
- Any statement given to the Police is not a substantive piece of evidence.
- By and large the Police are not as yet considered trustworthy.
- Therefore section 164 provides a special procedure for recording of confessions by competent Magistrates after ensuring that the confession are being made freely and voluntarily, and are not made under influence or pressure.
Constitutionality of Sec. 164
- S.164 is a protective measure, as it itself contains warning to the accused by the Magistrate before making any confessional statement.
- Therefore, the provisions of S.164 do not violate Article 21 of the Constitution.
Confessions or Statements
- S.164 contemplates recording of both confessions and statements.
- It is well settled that all confessions are statements, but all statements are not confessions.
- Confessions are not evidence as per S.3 of the Evidence Act
- The word statement is not limited to a statement made by a witness, but includes that made by an accused and not amounting to a confession.
Duty of the Magistrate (Sub Sec. 2)
- A cursory reading S.164(2) provides that the Magistrate has two important duties while recording a confession under section 164(2):
- To ensure that the confession is voluntary; and
- To inform the accused that it can be used against him as evidence.
- These two conditions are the sin qua non of recording a confession.
- However, absence of such warning does not per se make the confession inadmissible.
Person not willing to make a confession before the Magistrate (Sub Sec. 3)
- S.164(3) ensures that police pressure is not brought upon the person who is unwilling to make the confession before the Magistrate.
- Therefore, the Magistrate shall not authorize detention of such person in police custody, as the police may force him to give the confessional statement.
Manner of recording confession, signature, memorandum etc. (Sub Sec. 4)
- The confession shall be signed by the person who makes it.
- The Magistrate before whom such confession is made, shall make a memorandum at the foot of the confession.
- The magistrate shall declare that the Magistrate has informed the person making the confession about the possible consequences of making it.
- It shall be recorded in the language in which it is made by the person, as far as it is possible.
Manner of recording statement other than confession (Sub Sec. 5)
- The Magistrate is given a wide discretion when it comes to recording a statement other than a confession.
- The Magistrate shall have the power to administer oath to the person whose statement is so recorded.
- The object of recording such statements u/s. 164 is to have hold over the witness where he supports the prosecution story in his statement under section 161.
Procedure in case of Sexual Offences (Sub Sec. 5A)
- The statement of a Prosecutrix in case of a sexual offence shall be recorded as soon as the offence is brought to the notice of police.
Procedure in case of mentally or physically disabled person (Proviso)
- It shall be recorded with assistance of interpreter or special educator.
- It shall also be videographed.
- Such statement shall be considered as examination in chief.
Direction followed by Magistrates
The following directions are normally followed by Magistrates in order to ensure that a confession is made voluntarily:
- The accused shall be given a warning.
- He shall be given some time to think and reflect.
- In most cases an interval of 24 hrs is provided between the preliminary questioning and the recording of his confession.
- It must be ensured that the accused is free from police influence.
- If marks of injury are found on the body of the accused, he shall be questioned about the same.
- Handcuffs shall be removed and the Police shall be asked to move out.
- The accused shall be asked the particular reason as to why he wants to make a statement against his own interest.
- In order judge the voluntariness of the accused, the Magistrate shall take note of the following two factors:
- The existing mental condition of the prisoner.
- By scrutinizing the oral and documentary evidence of the case.
- If the prisoner knows how to write, he may be asked to write down his confessional statement himself.
- It is imperative for the Magistrate to explain the accused his constitutional rights and legal rights, for e.g. right to consult a lawyer.
Sec. 164 – A – Medical Examination of the victim of rape.
Sec. 165 – Search by police officer.
- S.165 authorizes a general search on the chance that something might be found.
- The officer must record reasons for ground for his belief that such search should be carried out, therefore recording of reasons is an important step.
- The officer has no power to make a search beyond the local limits of his own circle.
- Failure to call witnesses to search is not a serious omission, as provisions of S.100 Cr.P.C. are only applicable as far as it is possible to apply the same.
- Even if there is any sort of procedural illegality in conducting in search and seizure, the evidence collected thereby will not become inadmissible and the Court would consider all the circumstances and find out whether any serious prejudice had been caused to the accused.
Sec. 166 – When Officer-in-charge of police station may require another to issue search warrant.
- In a case where search is to be carried outside the local limits of a police station, i.e., search is to be caused in local limits of another police station S.166 comes into play.
- The Officer in charge of the former police station may require the officer in charge of the latter police station to carry out the search in furtherance of the investigation.
- Such Officer who has been delegated the task of carrying out the search shall forward such evidence or things which are found during such search to the officer who requested such search to be carried out.
- However, if the circumstances of the case require that immediate search shall be carried out then the police officer may carry out search beyond his limits, and along with that send a notice of search to the officer in charge of the Police station in whose local limits such search is carried out.
Sec. 167 – Procedure when investigation cannot be completed in twenty-four hours.
Scope and Object
- S.167 prescribes the procedure when the investigation cannot be completed in twenty-four hours.
- It enunciates the principle highlighted under section 57.
- The object of the provision is to protect the personal freedom of the accused.
- To keep a man in continued custody unmindful of just, fair and reasonable procedure shakes the rule of law, therefore section 167 is intended to provide the procedure once a man is put behind bars.
- Any unjust detention would lead to deprive a man of his personal liberty which would violate his fundamental rights.
- It also ensures that there is no unnecessary delay in the investigation.
When investigation cannot be completed in 24 hours. (Sub Sec. 1)
- The following conditions shall be met to increase the period of detention in case the investigation may take more than 24 hours:
- The accused must be arrested and detained;
- There shall be reason on account of which the investigation cannot be completed in 24 hours;
- There shall be grounds to believe that the accusations are true;
- If the above-mentioned conditions are met, then an officer above the rank of sub – inspector shall make an entry in the diary and forward the report to the Magistrate.
- The accused shall also be sent to the Magistrate.
“In such custody as such Magistrate thinks fit’ (Sub Sec. 2)
- The Magistrate to whom the accused is forwarded may authorize the detention of the accused for a term not exceeding 15 days.
- It is the discretion of the Magistrate whether he deems appropriate to keep the accused in anyone of the following custody:
- Judicial Custody; or
- Police Remand.
“Fifteen days in the whole”
- The detention of the accused in the police custody 15 days in the whole, including one or more remands.
- Such limit of 15 days applies to one case and not attracted when the accused is wanted involved more than one case.
Remand beyond 15 days
- In general, a remand beyond 15 days would entitle the accused to be released forthwith.
- However, if there are adequate the Magistrate can extent the period, not exceeding 60 or 90 days as the case may be.
- On expiry of such period the accused shall be released on bail.
- There shall be certain special reasons for extension of remand.
Bail by default
- The right to bail as provided under section 167(2) proviso (a) is absolute.
- If the investigation agency fails to file a charge sheet before the expiry of 90/60 days as the case may be, the accused in custody should be released on bail.
- There is no provision for giving a notice to the public prosecutor where a bail is sought under default clause of Sec. 167.
- It shall be the duty of the magistrate to inform the accused that he has right to be released on bail if the investigation is not completed within 90/60 days as the case may be.
- In case the charge sheet, though filed, is incomplete, that is to say without all papers contemplated u/s. 173(5) the accused is entitled to be released on bail under the default clause.
- Once the bail is granted under the default clause, filing the charge sheet at a subsequent stage would not lead to cancellation of the bail.
Sec. 168 – Report of investigation by subordinate police officer.
- Section 168 culls out a procedural requirement.
- Where if a subordinate officer has carried out any investigation, he shall report the result of such investigation to the officer in charge of the Police Station.
Sec. 169 – Release of accused when the evidence is deficient.
- If the investigation officer has reason to believe any of the following:
- That there no sufficient evidence; or
- There is no reasonable ground of suspicion.
- In any of the two above mentioned eventualities, the investigation officer shall not forward the custody of the accused to a Magistrate.
- Such person be released on his executing a b ond with or without sureties.
S.170 – Cases to be sent to Magistrate when evidence is sufficient.
- The section is a counterpart of S.169.
- If the investigation officer has reason to believe any of the following:
- That there sufficient evidence; or
- There is reasonable ground for suspicion.
- the investigation officer shall also forward the material evidence and require the complainant or other witnesses to appear before the Magistrate.
- If the offence is bailable then the accused can be released on executing a bond.
Sec. 171 – Complainant and witness not to be required to accompany police officer and not to be subjected to restrain.
- No witness or complainant shall be required to accompany a police officer; or
- They shall not be subjected to unnecessary restrain or inconvenience.
- However, if such complainant or witness refuses to attend the Court or execute a bond, the Magistrate may detain him in the custody until he executes such bond, or until the hearing of the case is completed.
Sec. 172 – diary of proceedings in investigation.
Scope, Object & Application
- This section shows what a ‘special diary’ maintained by the Police officer shall contain.
- It cannot be used during the trial, but it can be used to aid the Court.
- The object of the Section is to enable the Courts to check the method of investigation by the Police.
Features/Characteristics of the Case Diary
- It shall be volume and paginated.
- The statements recording during the course of investigation u/s. 161 shall be inserted in the Diary.
- It shall also include the following:
- Time of receiving the information;
- Place visited by the IO;
- The statements of the circumstances ascertained through the IOs investigation.
- The entries in the diary shall be made with promptness with full details, mentioning the significant details.
Use of Case Diary
- A case diary cannot be used as evidence.
- It is a record of the day to day proceedings carried out by the Police.
- Only the Court can summon such Diary.
- It is for aiding an enquiry or trial.
- It shall not be used for corroborating facts.
- If on perusal of the diary the Court senses an element of prejudice, the benefit of the same shall be given to the accused.
Sec. 173 – Report of Police officer on completion of investigation.
Scope and application
- Section 173 provides that every investigation shall be completed without unnecessary delay.
- The provisions of S.173 are not mandatory in nature, meaning thereby that non-compliance of the provisions of this section would not vitiate the trial.
- Such final report/completion report/charge sheet is only filed in case of a cognizable offence.
- The concept of speedy trial is implied under section 173.
- The submission of report u/s. 173 does not bar further investigation.
- A chargesheet can be filed against an absconding accused also.
Contents of the Report u/s. 173
- The name of the parties;
- The nature of the information;
- The name of the persons who appear to be acquainted with the circumstances of the fact;
- Whether any offence appears to have been committed; if so by whom;
- Whether the accused has been arrested;
- Whether he has been released;
- Whether report of medical examination of the woman has been attached where investigation related to an offence under sexual offences.
Complainant & the Investigation Officer cannot be the same person.
- A person who has registered the case if investigates the case also, naturally he would try to create the records and there may not be fair and impartial investigation.
- Where the IO is the complainant himself registers the FIR, conducts investigation and also gives evidence at trial, the rule of fairness in investigation id flouted, investigation stands vitiated.
Two Charge sheets on one FIR
- Where two separate and distinct offences have been committed, two charge sheet can be filed on basis of one FIR.
- However, any additional information found after submission of report u/s. 173 can be annexed along with the original charge sheet.
Courses to be adopted by the Magistrate on receipt of a negative report
When the Magistrate gets a negative report, he should choose between one of the four courses:
- To accept the report and drop the charges; or
- To direct further investigation to be made by the Police; or
- T investigate himself or refer for the investigation to be made by another Magistrate under section 159; or
- To take cognizance of the offence u/s. 200 as a private complaint when the materials are sufficient in his opinion and if the complainant is prepared for that course.
Procedure to submit the Report u/s. 173 in respect to case to which Sec. 170 applies. (Sub Sec. 5)
- Along with the report, the IO shall forward the following to the Magistrate:
- All documents; and
- Relevant extracts; and
- Statements u/s. 161
- A report which is submitted without these documents is not a legal report in the eyes of law, hence liable to be rejected.
Exclusion of certain documents from evidence supplied to the accused
(Sub. Sec 6)
- If the Magistrate, on being informed by the Police Officer that some parts of the report shall not be forwarded to the Accused in light of public interest, relevancy or importance, the same can be omitted from the copies supplied to the accused.
- However, if the Court is of the opinion that the prosecution has not forwarded relevant, admissible evidence to the accused, it can order the same to be produced to the accused.
- Hence the information which is necessary to do complete justice must be supplied to the accused.
Further investigation after cognizance (Sub. Sec. 8)
- The power to conduct or order to be conducted, further investigation lies with the Police officer or the Magistrate as the case may be.
- The report submitted on basis of such further investigation shall be called as supplementary chargesheet.
- So, this section confers specific powers of the Police to carry on further investigation after the cognizance is taken.
- An order of further investigation is not a judicial order and hence no precise reasons be given in the order.
- Merely because the requirements of submitting the supplementary chargesheet in a specific way are not fulfilled, the trial shall not be vitiated.
- S.173(8) i.e. further investigation can be order even when the Police submits a negative report at the first instance.
Sec. 174 – Police to enquire and report suicide, etc.
Scope and application
- The provisions of S.174, 175 and 176 deal with inquiries into suicide or inquiries into sudden, violent or unnatural deaths.
- S.174 provides for such inquiries by the Police.
- S.176 provides for such enquiries by the Magistrate.
- The scope of proceedings u/s. 176 is very limited, therefore details of the overt act in the inquest report are not necessary.
- Inquest report can be made when the Police officer receives information that a person:
- Committed suicide; or
- Has been killed by another; or
- Has been killed by an animal; or
- By machinery
Object of inquest proceedings
- To ascertain whether a person has died under unnatural circumstances or an unnatural death.
- The purpose of holding an inquiry is very limited i.e. to ascertain as to whether a person has committed suicide or has been killed by another.
Admissibility and Value of Inquest Report
- A statement in inquest report does not fall within the four corners of S.162.
- The statement of the investigation officer in the inquest report is not a statement made by any witness before the police during the investigation.
- The inquest report is the record of what the IO himself observed and found, such evidence is the direct or the primary evidence in the case and in the eyes of law the best evidence.
Discrepancy between inquest report and postmortem report.
- Postmortem is conducted by an expert, hence opinion expressed by him would carry more weight than the opinion and findings of a layman given in inquest report.
Contents of the Inquest Report
- Apparent cause of death;
- Description of wounds, fractures, bruises and other marks of injury;
- Manner or by what weapon such injury appears to have been inflicted.
Sec. 175 – Power to summon persons
Sec. 176 – inquiry magistrate into cause of death
- Such inquiry can be carried out in cases of custodial death i.e., when a person dies while in the custody of the police.