Information to police and the power to Investigate

INFORMATION TO THE POLICE AND THE POWER TO INVESTIGATE (SECTION 154-176 OF CrPC)

Sankalpita Pal

Introduction

In common parlance, investigation and inquiry are used interchangeably. However, the Code of Criminal procedure, 1973 (hereinafter known as CrPC or the Code) treats these two words quite differently. The information of either a cognizable offence or a non-cognizable one is first given to the police before they proceed to investigate.

According to CrPC, 1973 “Investigation” is always to be conducted by the police officer or any other authorized person. A magistrate never conducts an investigation. The investigation includes all proceedings under the Code for the collection of evidence.[1] An inquiry, however, is conducted by a Magistrate or Court and which is not a trial, as defined under Section 2(g) of the Code. The term trial is not defined under the Code.

Chapter XII of CrPC wholly deals with Information to Police and their Power of Investigate along with a few specific powers given to the Magistrate.

Information to Police U/s 154 and 155 of CrPC

Whenever a person needs to provide information to the police regarding a crime, they need to lodge the First Information Report or the FIR. Now offences are of 2 types Cognizable and Non- Cognizable and thus, the procedure to be followed after the information with regard to such offences reach the police, is also different.

1. Information w.r.t. Cognizable offences– As provided under Section 154 of the Code, Any person aware of the commission of Cognizable offence may give such information to the police provided that such an Officer-in-charge has jurisdiction to investigate such an offence. There are specific clauses (a) to (g) with regard to how the information received by the Police must be recorded.

Section 154 is intended to ensure that the police record the information received by them accurately. The FIR need not contain every detail of the case.[2]  In practice, the evidentiary value of FIR is greater than any other statement recorded during the course of the investigation.

In Lallan Chaudhary v. State of Bihar[3]  the Supreme Court held that “the mandate of Section 154 is manifestly clear that if any information with regard to the cognizable offence, a police officer has no other option but to register the case on the basis of such information.” The credibility of the information is not a condition precedent for registration of the FIR.[4]

In the landmark judgment, Lalita Kumari v. State of UP[5] the Apex court laid down that “Registration of FIR of a Cognizable offence is mandatory”. Any unreasonable delay in sending the occurrence report to the Magistrate maybe fatal to the prosecution’s case.[6]

• Information w.r.t. Non-Cognizable offences– According to Section 155(1), any information regarding such offences are supposed to be recorded in a book as prescrided by the State Government and the informant is supposed to be referred to the Magistrate. The Police officer cannot independently proceed to investigate without the order of a competent Magistrate, as laid down U/s 155(2). After receiving such an order a Police officer can execute their power to investigate in the same manner as in a cognizable offence (except the power to arrest without a warrant).

In Kari Chaudhary v. Sita Devi[7] it was held that the object of investigation is to find out whether the alleged offence has in fact been committed, and, if so, who have committed them. However, where there is the commission of any offence which is not of serious nature there is no need to proceed with the investigation on the spot.

Procedure to be followed after Recording the FIR

1. According to Section 157 of the Code, a Police officer starts his investigation after forming their primary suspicion on the commission of a cognizable offence based on either the FIR or any other valid information.
2. The procedure laid down under Sections 157 to 159 is designed to keep the Magistrate informed of the circumstances of the case reported.
3. Under Section 157(1), when reasonable suspicion with regard to the commission of a cognizable offence is found to exist, immediately a report is sent to the Magistrate regarding it. Based on such a report the Magistrate exercises his power to take cognizance of such an offence. He also has the power to give specific directions under Section 159.
4. The purpose of section 157 and 159 clearly shows that the Magistrate has a wide power to control the investigation in a case.

Investigation under Pre-cognizance and Post-cognizance Stage

When can a Police proceed to Investigate?

There are 3 clear situations

• Police can investigate on receiving information of a cognizable offence being committed.[8]
• Police can proceed to investigate even without information if they have reason to suspect the commission of any cognizable offence.[9]
• When a Judicial Magistrate orders the police to investigate U/s 190 of the Code.[10]

Section 156 lays down three provisions with regard to the Police officer’s power to investigate cognizable cases.

There are two types of investigation with regard to the power to the Magistrate. The Magistrate can direct an investigation to the police under 2 significant Sections i.e. Section 156(3) and Section 202(1) of the CrPC. The only necessary demarcation is the stage at which the Magistrate invokes his powers.

1. Section 156(3) is exercisable at the pre­-cognizance stage.
2. Section 202 (1) is invoked at the post­cognizance stage.

In this article, we are concerned about the first point only. In the Pre-cognizance state, when the Magistrate receives a particular complaint instead of immediately taking cognizance of the offence, the Magistrate explores whether it’s a cognizable offence or not. Once the Magistrate determines such a question, he can order investigation Section 156(3) of the Code.

In case no action is taken by the Police authorities as ordered U/s 156(3) the Judicial Magistrate can exercise his power u/s.190.

It is also interesting to note that the order U/s 156(3) is not a judicial order instead it’s an administrative one. It’s just a peremptory order to set the police’s statutory Power to investigate in motion. The same was also held in Devarapalli Lakshminarayana Reddy and   Ors. v. Narayana Reddy and Ors.[11]

Powers of the Police and Judicial Magistrate under Sections 160- 167 of the Code.

1. Power to require attendance of witnesses

For the sake, if effective investigation it is essential that the Police extract all the possible information. For this purpose to be served Section 160 was designed. Section 160(1) lays down 3 conditions as to how an investigating officer can order the attendance of witnesses. They are:

• Order must be in writing
• The witness required to appear before the police is the one well acquainted with the facts and circumstances of the case
• Such a witness is within the limits of the police station handling the case or the adjoining police station.

Non Compliance with the summons issued by the Police can invite proceedings under Section 188 of IPC. However, the Police Officer can’t force such a witness through arrest or detention.

• Power to interrogate witnesses, record their statements

The Purpose of Section 161(1) is to facilitate the collection of evidence. According to this Section, any person is required to truthfully answer orally to the questions asked by the Police officer. Once again such a person is not mandatorily bound to answer such questions which would expose him to criminal charges.[12]

In Nandini Satpathy v. P.L. Dani[13]the Apex Court held that even an accused can be put under the ambit of the definition of such a ‘person’ or a ‘witness’ because the accused would also be well aware of the facts of the case and therefore, can be questioned on it.

Evidentiary value of recorded statements- Police Officer can record statements of witnesses in writing as under Section 161(3).

The purpose of Section 162 is to use previous statements of witnesses for corroborating or contradicting his testimony. Such statements can be used in a trial if the witness is a prosecution witness. It can further be used by the defence to contradict the prosecution witness. Any part of such a statement can be used for the re-examination of the witness. Section 162 is, however, only puts restriction with regard to use of statements made during the course of the investigation, it is silent on whether every statement made comes within the ambit of the prohibition.

• Magistrate’s power to record confessions

According to Section 25 of Evidence Act, 1872– Any confession made to a Police Officer is completely inadmissible in evidence. This provision was inserted in order to protect the accused from overzealous police officers who might fabricate confessions and manipulate evidence. Thus Section 164 of CrPC lays down a different procedure for recording confessions made during the course of investigation by competent Judicial Magistrates. Only if this procedure is followed then only such confessions can be used as substantive evidence.

In Ramprasad v. State of Maharashtra[14] the Apex court held that confessions made according to Section 164 can be used to corroborate or contradict the witness as provided U/s 154 of Evidence Act and U/s 155 of the same, respectively.

Confessions have to be made before the Inquiry or trial begins [U/s 164(1)]. According to Section 164(2), the  Magistrate must determine the reason to believe that the confession made is voluntary.[15] This section doesn’t mention whether there should be a specific place and time for recording evidence, thus, the Magistrate admits such evidence in open court during Court hours.[16]

• Power to extend custody of the accused

According to Section 167 of the Code if necessary a police officer can detain a person longer than 24 hours if the investigation isn’t over by then. This can only be done after obtaining the special order of the Magistrate. The custody can be extended only to 15 days. The object of this section is to protect the accused from unscrupulous police officers and also to ensure that unnecessary delay isn’t caused.[17] In CBI v. Rathin Dandapat[18] the SC held that if an absconding accused comes back to be arrested later, there could be remand under this section.

According to Section 172(1) every investigating officer must maintain a daily entry of his proceedings in a diary, also known as the case diary.

Procedure followed after Completion of Investigation

1. Release of accused due to deficient evidence

Due to deficiency of evidence reasonable ground to forward the accused to the Magistrate can’t be established. Such persons must be released after executing a bond with or without sureties so that when the Magistrate takes cognizance of the case, the accused can be produced before him as per Section 169 of the Code.

• When evidence is sufficient

When there is sufficient evidence found, the accused is forwarded to the Magistrate. And the Procedure U/s 170 of CrPC is followed. As per clause (1) if the offence is bailable and the accused is able to pay the security, the magistrate must take it from him. As per Clause (2) the witnesses and the complainant are required to execute a bond to appear before the Magistrate.

• Report of the Police after completion of investigation.

Section 173 and the 8 clauses under it lay down the essentials of a final police report before it is submitted to the Magistrate.

As per Section 173(1), every investigation must be completed without delay and the final police report is commonly known as the Charge- sheet of Challan. The report must contain all essential information like the name of parties, nature if information, etc as prescribed by the State Government.

As per Section 173(5), when evidence is sufficient (Section 170) then police forward the report to the magistrate along with the statements of witnesses recorded for the purpose of investigation. If a part of the statements contained in the challan is irrelevant in the opinion of a police officer, he can request the magistrate to exclude it U/s 173(6).

• Supplementary Report on further investigation

When further evidence props up the police can forward the same to the Magistrate. Further investigation is in continuance to the earlier one. A fresh or re-investigation is indefensible in the light of Section 173(8)[19]. In Vinay Tyagi v. Irshad Ali[20] the Apex Court held that the Magistrate can order further investigation and courts having higher jurisdiction can order reinvestigation or de novo investigation of a case.

Investigation and Inquiry in Special cases U/s 174- 176

Section 176(1-A) was inserted in 2005. As per this section, in cases of death in custody or rape in police custody, the Court can conduct an inquiry other than the police investigation. An inquest is done by Magistrate U/s 176. An inquest is mandatory in special cases such as a death in police custody, death due to suicide (mostly dowry deaths by setting bride on fire), etc. the Magistrate has wide discretion under this section.

According to Section 174 investigation can be done by Police in cases such as suicide, unnatural death, death caused in the commission of a crime, etc, where the cause of death as to be ascertained. Post –mortem reports must be collected in such cases.

Conclusion

It is abundantly clear that the procedure under CrPC is intricate and in the best interest of the accused and the complainant. The provisions are also closely linked with the Evidence act, 1872. However, the wide powers given to the Magistrate and the Police are often misused and this misleads the direction of justice. Even though the scheme of most provisions require the police to be answerable yet provisions like Section 156(2) makes the police pretty undisputable and unanswerable. Section 177 deals with inquiries and trial in criminal courts. Thus, we draw a line here.

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[1] T. K. Narayanaswamy v. State of Karnataka, 1991 Cri LJ 2115

[2] Umar Mohammad v. State of Rajasthan, (2007) 14 SCC 711

[3] Lallan Chaudhary and Ors. v. State of Bihar and Ors., AIR 2006 SC 3376.

[4] Ramesh Kumari v. State (NCT of Delhi) and Ors, AIR 2006 SC 1322

[5] Lalita Kumari v. State of UP, (2014) 2 SCC 1

[6] Mahabir Singh v. State, 1979 Cri LJ 1159

[7] Kari Chaudhary v. Sita Devi, (2002) 1 SCC 714: AIR 2002 SC 441.

[8] Masthan Saheb v. P. S. R Anjaneyulu, 2003 Cri LJ 248 (AP)

[9] Ibid

[10] Anil Kumar v. M.K. Aiyappa, (2014) 1 SCC (Cri) 35

[11] Devarapalli Lakshminarayana Reddy and Ors.  v. Narayana Reddy and Ors, AIR 1976 SC 1672

[12] Section 161(2) of Code of Criminal Procedure, 1973

[13] Nandini Satpathy v. P.L. Dani, (1978) 2 SCC 424

[14] Ramprasad v. State of Maharashtra, (1999) 5 SCC 30

[15] Shivappa v. State of Karnataka, (1995) 2 SCC 76

[16] Hem Raj Devilal v. State of Ajmer, AIR 1954 SC 462

[17] Chadayam Makki Nandanan v. State of Kerala, 1980 Cri LJ 1195

[18] CBI v. Rathin Dandapat, (2016) 1 SCC 507

[19] Ramchandran v. Udhaya Kumar, (2008) 5 SCC 413

[20] Vinay Tyagi v. Irshad Ali, (2013) 5 SCC 762