I WORKSHOP – 2017-18

TOPIC – 1
INVESTIGATION PROCESS – ROLE OF COURTS
S.No. Name & Designation of the Officer Page Number
Sri Y.Srinivasa Rao,
1. Assistant Sessions Judge, 1-16
Avanigadda
Sri Shaik Ibrahim Sharief,
2 I Addl. Junior Civil Judge, 17-20
Machilipatnam
Smt. Gogi Kalarchana,
3 II Addl. Junior Civil Judge, 21-32
Vijayawada.
Sri A.Ramachandra Rao
4 II Metropolitan Magistrate for Railways, 33-51
Vijayawada
Smt. M.Satya Kumari,
5 Junior Civil Judge, 52-55
Kaikaluru
Smt. Anjani Priya Darshini,
6 Prl. Junior Civil Judge, 56-64
Jaggaiahpet
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INVESTIGATION PROCESS -ROLE OF COURTS

Paper Presented by

Sri Y. Srinivasa Rao,

Assistant Sessions Judge,
Avanigadda.

"The honest policeman rigs the evidence to convict the man he knows is
guilty. Perhaps it is the only way he can get a conviction. The dishonest
policeman rigs the evidence to convict a man he knows is innocent."
--- Sir John Woodburn, Lieutenant-Governor of Bengal

Trial follows cognizance and cognizance is preceded by investigation.

--- H. N. Rishbud's case, AIR 1955 SC 196

I. Introduction:- 'Investigation' is the process of inquiring, bring about and

getting vital information, discovery of facts and circumstances to establish the
truth. The key underlying principle of investigation of a crime is a concept that
is known as 'Locard's Exchange Principle'. This principle is summed up by
stating ''Every contact leaves a trace''. For investigation to commence,
registration of a FIR is not a sine qua non. (Emperor Vs. Khwaja Nazir, and
Apren Joseph @ Current Kunjukunju and Ors Vs. State of Kerala, 1973 Crl.L.J
85).

Human dignity is a dear value of our Constitution. But if a police officer

transgresses the circumscribed limits and improperly and illegally exercises his
investigatory powers in breach of any statutory provision causing serious
prejudice to the personal liberty and also property of a citizen, then the Court,
on being approached by the person aggrieved for the redress of any grievance
has to consider the nature and extent of the breach and pass appropriate
orders as may be called for without leaving the citizens to the mercy of police
echelons since human dignity is a dear value of our Constitution. (State Of
Haryana And Ors vs Ch. Bhajan Lal And Ors 1992 AIR 604).

II. The Process of Investigation and Role of Courts:-

(i) The adjudicatory function of the judiciary.
On a cognizance of the offence being taken by the Court the police
function of investigation comes to an end subject to the provision
contained in Section 173 (8) there commences the adjudicatory
function of the judiciary to determine whether an offence has
been committed and if so, whether by the person or persons
charged with the crime by the police in its report to the Court,
and to award adequate punishment according to law for the
offence proved to the satisfaction of the Court.
There is thus a well defined and well demarcated function in
the field of crime detection and its subsequent adjudication between
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the police and the Magistrate. See. State Of Bihar And Anr vs J.A.C.
Saldanha And Ors,1980 AIR 326. The Court should be quite loathe to
interfere at the stage of investigation, a field of activity reserved for
Police and the executive. See. King Emperor v. Khwaja Ahmad, [1944]
L.R. 71 I.A. 203 at 213

(ii) Process of Investigation:- To understand the process of investigation

succinctly, I intend to quote the an important judgment of the Hon'ble
Supreme Court wherein the stages of investigation is clearly explained. If you
go through this ruling in H.N.Rishbud Vs. State of Delhi, AIR 1955 SC 196, we
can easily understand the process of investigation. Under the Code of Criminal
Procedure,1973 investigation consists generally of the following steps:
(1) Proceeding to the spot,
(2) Ascertainment of the facts and circumstances of the
case,
(3) Discovery and arrest of the suspected offender,
(4) 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 of seizure of things considered
necessary for the investigation and to be produced at the
trial, and
(5) Formation of the opinion as to whether on the
material collected there is a case to place the accused
before a Magistrate for trial and if so taking the necessary
steps for the same by the filing of a charge-sheet under
section 173 of Cr.P.C.
Investigation under the Code thus constitutes, as interpreted by the apex
court in H.N. Rishud v. State of Delhi, AIR 1955 SC 196: 1955 Cr LJ 526.
iii. (a). Registration of First information report:
After receiving the information, Officer-in-charge of the police-station verifies
the contents of the first-information-report (FIR) and decides whether the
contents of the information are of a cognizable offence or non-cognizable
offence. See. Section 154 of Cr.P.C. The initial stage of any criminal case is
investigation that is reached when a police officer either by himself [s. 156(1)
Cr.P.C.] or under orders of a Magistrate [Sections. 156(3), 154, 155(3), 202(1)
Cr.P.C.], investigates into a case.

See. Youth Bar Association of India vs. Union of India and Ors, 2016 SCC
online SC, 914, the Apex Court has issued 10 important Guidelines on First
Information Report.
 3

Principle of law: The powers of the police officer to investigate a cognizable

offence as given u/s. 156 Cr.P.C. are wide and unfettered (in strict compliance
of the provisions of Chapter XII of the Code). As was held in Nazir Ahmed,
(1944) 47 Born LR 245, The court has no control over the investigation, or
over the action of the police in holding such investigation. However, it was held
in State of Haryana v. Ch. Bhajan Lal, AIR 1992 SC 604, in case a police
officer transgresses the circumscribed limits and improperly and illegally
exercises his powers in relation to the process of investigation, then the Court
has the necessary powers to consider the nature and extent of the breach and
pass appropriate orders.

iii. 'Case Diaries' under the process of investigation:

Every investigating officer is required by law to keep a record of the
proceedings of the investigation in a diary in narrative form that should be
made with promptness in sufficient details mentioning all significant facts on
careful chronological order and with complete objectivity which may have a
bearing on the result of the case. Haphazard maintenance of a case diary not
only does no credit to those responsible for maintaining it but defeats the very
purpose for which it is required to be maintained. See. BhagwantSingh v.
Commissioner of Police, AIR 1983 SC 826.
A copy of the diary relating to each day's investigation (along with copy of
any statement that may have been recorded u/s. 161 Cr.P.C.) shall be
despatched to the circle inspector the following day. In special report cases,
another copy shall be sent to the Superintendent of Police. It is interesting to
see that the Hon'ble Apex court observed in OmPrakash v. State, 1979
Crl.L.J 141, that "the case diary must be written at the place of investigation
and not at the end of the day. See. 1980 Cr LJ N.O.C. 67 (Del.); Jagannath v.
State of Himachal Pradesh, 1982, Cr LJ 2289 (H.P.)
v.(a) Collection of Evidence:- The collection of evidence involves several steps
and methods that comprise the crucial task of investigation process. The object
behind is this task such that is to collect all available forms of evidence,
physical, documentary and circumstantial, that are necessary for a
comprehensive presentation of the same with regard to successful and effective
prosecution of the case.
v.(b). Recommendations of the Malimath Committee:-
The Malimath Committee of 2003 makes certain recommendations with
regard to mitigating the present handicaps of the investigating units, the
thanas. It attempts to make them more self-reliant and to turn them over to
more comprehensive units of investigation, as its impact would also amend the
prevalent police practice that has evolved without them. While favouring the
use of modern and forensic technologies right from the commencement of the
investigation, the Committee recommends:
 4

1. for the creation of "a cadre of Scene of Crime Officers" for the
preservation of scene of crime and collection of physical evidence
there-from.
II. to provide optimal forensic cover to the investigating officers, the
network of CFSL' s and FSL's in the country need to be strengthened,
mini-FSL's and Mobile Forensic Units should also be set up at the
district/range level and these including the finger print bureaux
need to be equipped with well-trained and adequate manpower and
financial resources. Forensic Medico legal Services should also be
strengthened at the district and the state/central level, with
adequate training facilities at the state/central level for the experts
doing medico legal work.
111. The State Governments must prescribe time frame for
submission of medico legal reports.
The Padmanabhaiah Committee on Police Reforms has
recommended that every police station should be equipped with
'investigation kids' and every sub-division should have a mobile
forensic science laboratory.
In the present context, where there is a lack of equipment for collecting
physical evidence, as well as the lack of training in its use, and the failure to be
alert to physical clues, the investigation Officers rely more on oral testimonies.
They are, therefore, more oriented to persons and not to things.

vi. (a) Examination of Witnesses:- The examination of witnesses is only one

part of the collection of evidence, included within the meaning of the word
"investigation". Wadha J. Said, "A criminal case is built on the edifice of
evidence, evidence that is inadmissible in law. Fir that, witnesses are required
whether it is direct evidence or circumstantial evidence." See. Swaran Singh v.
State of Punjab, (2000)5 SCC 68 at 678.

The procedure for examination of witnesses by the police is provided in ss.

161 and 162 Cr.P.C. It provides for the recording of statements of all those
persons who are acquainted with the facts and circumstances of the case,
directly or indirectly, and the use to which they may subsequently be put in
the trial.
vi. (b). Magistrate is kept in the picture at all stages of the police
investigation:-
In this case of State of Haryana's (1992 AIR 604), it was observed that a
noticeable feature of the scheme under Chapter XIV of the Code is that a
Magistrate is kept in the picture at all stages of the police investigation but he
is not authorised to interfere with the actual investigation or to direct the police
how that investigation is to be conducted.
 5

Under section 161 of Cr.P.C, a police officer making an investigation can

examine the person acquainted with the facts of the case, and reduce the
statement made by such person into writing. No oath or affirmation is required
in an examination under this section. Persons to be examined include
whosoever may subsequently be accused of the offence in respect of which the
investigation is made by the police officer. See. Pakala Narayana Swami,
(1939) 66 IA 66: 41 Born LR 428: 18 Pat 234; Velu Viswanathan, 1971 Cr
LJ 725.

It is obligatory on a person examined in the course of a police investigation to

answer all questions put to it "other than questions the answers to which would
have a tendency to expose him to a criminal charge or to a penalty or forfeiture."
See. s. 161(2) Cr.P.C. Consonant to this procedural law is the provision laid
down in the constitution, Article 20(3) that protects one from being made
witness against itself.

The person questioned is legally bound to state the truth. A person who gives
false information in answer to such questions can be prosecuted under
sections 202 and 203 of the Indian Penal Code,1860. See. Sankaralinga Kone,
(1990) 23 Mad.

Section 161 (3) Cr.P.C. prohibits the making of precis of a statement of a

witness or merely recording that one witness corroborates another. The
statement, if recorded, must be recorded as made and should not be in indirect
form of speech. The writing should be a record in the first person. See. Sudhir
Kumar Mandai, (1950) 2 Cal 343. Where investigating officers not recording
statement of witness u/s. 162 Cr.P.C. in extenso but making a note that he
corroborated the FIR, its held by the court that this is not a statement but the
officer's opinion. 1962 Cuttack Law Times (2) 6282/685.

As was pointed out in Bommabayina Ramaiah v. State of A.P., AIR 1960 AP

160:1960 Cr LJ 311, it is essential to note that each statement recorded could
be read by itself without necessarily looking into the others. This is made to
minimise the chances of contradiction and also avoid any allegation against the
IO for having even inadvertently distorted the statement during the process of
translating the statement made in a language other than in which it is recorded.
If the statement is first recorded in a vernacular language and then translated
into English, mere supply of a copy of the English version would not meet the
requirements of law. In such a case, the statement in the vernacular being the
original statement, copy of it should also be furnished to the accused. See.
Muniswamy v. State, 1954 Cr LJ 905 Mysore; In re Rangaswami, 1957 Cr LJ
 6

866 Mad.; Public Prosecutor v. Parasurama Prabhu, 958 Cr LJ 392 Mad. See R.
Deb, op. cit., p. 70; Syed M. Afzal Qadri, op. cit., p. 63.

The principle embodied in s. 162 Cr.P.C. ensures that no statement made to

the police which is reduced to writing be signed by the person who makes it65
and that no such statement or record of such a statement shall be used for any
purpose other than those stated in the section. See. If an investigating officer
obtains the signature of a witness on his recorded statement, the evidence of the
witness is not thereby rendered inadmissible. It merely puts the court on caution
and may necessitate an in-depth scrutiny of such an evidence. State of UP. v.
M.K Anthony, AIR 1985 SC 48; Tellu v. State, 1988 Cr LJ 1063 (Del.); Zahiruddin
v. Emp., 48 Cr LJ 679 (P.C.); State ofKerala v. Samuel, 1961(1) Cr LJ 505
(Kerala-F.B.)

That is, u/s. 162, a statement recorded under 161 Cr.P.C. can only be used for
contradicting the particular prosecution witness by the accused as of right and
also by the prosecution to contradict such witness in the manner provided by s.
145 of the Indian Evidence Act, 1872. [Hazari Lal v. State (Delhi
Administration), AIR 1980 SC 873: 1980 Cr LJ 564; M.S. Reddy v. State
Inspector of Police, 1923 Cr LJ 558 (AP); Mohd. Islam v. State of UP., 1993 Cr
LJ 1736 (All.); Hamidulla v. State ofGujarat, 1988 Cr LJ 98 (Guj.); Fateh Singh
v. State, 1995 Cr LJ 96. The statement cannot be used for the purpose of
contradicting a defence witness or a court witness. Ganga, (1929) 4 Luck 726;
Tahsildar Singh, AIR 959 SC 02: 1959 Cr LJ 1231; Shakila Khader v. Nausher
Gama, AIR 975 SC 1324.] They cannot be used either as a substantive or
corroborative piece of evidence on behalf of the prosecution. [Sat Paul v. Delhi
Administration, AIR 1976 SC 294: 1976 Cr LJ 295; Rameshwar Singh v. State
ofj&K, AIR 1972 SC 102: 1972 Cr LJ 15; Prakash Sen 11. State, 1988 Cr LJ
1275; jadumanikhant/4 v. State of Orissa, 1993 Cr LJ 2701 (Ori.); jahri Gope,
(1928) 8 Pat 279; Sahdeo Gosain, (1944) FCR 223.] They can only be used for
raising suspicion against credibility of the witness. [ Chinamma v. State of
Kerala, 1995 Cr LJ 171 (Ker.).]

According to section 162 (2) of Cr.P.C does not affect the provisions of section
27 of the Indian Evidence Act and therefore information leading to the
discovery of a fact made to the police and admissible under section 27 of the
Evidence Act , is not rendered inadmissible under this section. As also s. 162
does not affect a dying declaration recorded during investigation u/s. 32 of the
Evidence Act and thus it is admissible in evidence. See. Najjam Faroqui v.
State, 1992 Cr LJ 2574 (Cal.). See. R. Deb, op. cit. Satish Chandra Seal, (1944) 2
Cal 76; Safi Mohd. Hussain v. U.P., 1992 Cr LJ 755 (All.); Public Prosecutor v. P.N.
Rao, 1993 Cr LJ 2789 (AP).
 7

The practice of the investigation officer itself recording a dying declaration

ought not to be encouraged. However, such a dying declaration is not
altogether excluded but may be used depending upon its veracity. See. Harej
Ali v. Assam, 1980 Cr LJ 745 (Gau.); jamiruddin Mol/a v. The State, 1991 Cr LJ
356 (Cal.). The police have to arrange for recording the dying declaration
whenever it is necessary.

Provisions of ss. 161 and 163 Cr.P.C. emphasize the fact that a police-officer is
prohibited from offering or making any inducement, threat, or promise as is
mentioned in s. 24 of the lEA with a view to procureany to make a statement.
See. Atma Ram, AIR 1966 SC 1736; Venu Gopal, AIR 1964 SC 33; State of
Bombay v. Kathi Kalu, 1961(2) Cr LJ 856 (SC).

But a police officer or other person shall not prevent by any caution any person
from making any statement which he may be disposed to make of his own free
will. See. Section 163(2) Cr.P.C.

vii. Search and Seizure:--

Searches are also proceedings for the collection of evidence and therefore part
of investigation u/s. 2(h). Section 165, Cr.P.C. authorises a general search on
the chance that something incriminatory might be found in connection with an
offence. The procedures of the search are also stated ins. 100 Cr.P.C. See also.
State of Punjab vs. Balbir Singh, 1994 SCC (3) 299 regarding serach and
seizure.

The search should be made in their presence, and the list of things seized in
the search and of the places in which they were respectively found, familiarly
known as the panchanama, should be signed by them. See. Section 100(5),
Cr.P.C.

It has also been held that where conditions under sub-ss. (1) and (3) of s. 165
have not been strictly complied with, it may be only an irregularity and entry in
the premises for making search in discharge of official duty cannot be turned
into a criminal trespass only on account of such a defect. See. B.S. Thind v.
State of HP., 1992 Cr LJ 2935 (HP).

When provisions of this section and s. 100 of the Code are contravened the
search can be resisted by the person whose premises are sought to be searched.
See. Radha Kishan v. State, AIR 1963 SC 822: (1963) I Cr LJ 809. But even if
the search be illegal, it does not justify any obstruction or other criminal acts
against the person conducting the search, after search and seizure
are complete. See. Shyam La/, AIR 1972 SC 886: 1972 Cr LJ 638.
 8

It is settled law that once it is found that the evidence of the recovery of articles
is reliable, "the illegality of the search however does not make the evidence of
seizure inadmissible."See. AIR 1965 Orissa 136-37. SeeArvind Verma, 1997.

According to s. 165(1) Cr.P.C., the 1O can only conduct search within

the limits of its thana, but in certain cases a search within the limits of another
thana is now authorized. Section 166(1) Cr.P.C. extends the power of the 1O to
have such searches carried outside its jurisdiction by requiring the OIC of that
thana to cause such search, and in exigencies where in the opinion of the 10 if
such requirement may occasion delay that may result in evidence being
concealed or destroyed then the concerned officer can go ahead with such
search (See. Section 166(3), Cr.P.C.) and shall inform the OIC of the thana
under whose limits such search took place.

viii. Test Identification Parade:- Evidence in regard to test identification

parades (TIPs) are held in matters of person as well as property. The basic
procedural norms for conducting TIPs in either case are essentially the same.
The method of conducting tip is enumerated in rule 34 of the Criminal Rules
of Practice and Circular Orders, 1990. The precaution that need to be taken by
the police is to prevent the identifying witness(es) from seeing the recovered
property or the suspects,as the case may be, before the test identification.
The TIP has to be held without much delay and before the accused goes
on bail for once on bail, there is the chance of the accused not only being seen
by the witnesses but they could also be influenced by the accused at large. In
case the above precautions are not taken that may greatly hamper the value of
the evidence in identification.
The police should ensure that all the procedural norms are strictly
followed to ensure a fair conduct of the TIP and in that regard, the police
manual also prescribes that the panch witnesses need to satisfy themselves.

ix. Arrest:
The arrest and detention of a person for the purpose of investigation of an
offence forms an integral part of the process of investigation. Sections 41 and
154 of the Code deal with the powers of arrest by the police. The powers of the
police to arrest a person without an order from a Magistrate and without a
warrant as provided in s. 41(1) is confined to such persons who are accused or
concerned with the offences that are enumerated under nine categories of
cases (a-i) or are suspects thereof.
The phraseology of this section entails on one hand a cognate character in
consonant with s. 2(c) of the Code wherein the expression "cognizable offence"
means an offence for which a police officer may arrest without warrant. Thus
proceeding from s. 154, vide s. 156 of the Code, the derivative impression in
correspondence with s. 41 is that the arrest of the accused is mandatory as
part of the process of investigation.
 9

See. Arnesh Kumar Vs. State of Bihar, Rajesh Sharama Vs.

UP, Judgment dated July 27,2017, and Recent case in
Maharashtra-based NGO Nyayadhar's case (2017).

Section 41 Cr.P.C. is a depository of general powers of the police officer to

arrest but this power is subject to certain other provisions contained in the
Code as well as in the special statute to which the Code is made applicable. See.
AvintiSh Madhukar Mukhedkar v. State of MahartiShtra, 1983 Cr LJ 1833
(Born.). See. Arnesh Kumar Vs. State of Bihar, (2014) 8 SCC 273.

Section 41 (l)(d) will have to be read in conjunction with the provisions

contained in ss. 155 and 156. Ass. 155(2) prohibits a police officer from
investigating a non-cognizable offence without an order of the Magistrate, then
in respect of such an offence a police official cannot exercise the powers
contained in s. 41 (I) (d).
But in case of a person committing or accused of committing a non-cognizable
offence in the presence of a police officer does not reveal its name and
residence or does so that is believed to be false, the concerned person may then
be taken into custody in order that the same may be ascertained. See.
Section 42(1), Cr.P.C.

Even in cases u/s. 34 Indian Police Act, 1861, the police shall exercise their
powers of arrest without warrant. It is not necessary that arrest is effected only
on the occasion of the commission of an offence. The police have also been
armed with extensive powers to prevent commission of cognizable offences (ss.
149-151), i.e. offences for which they could arrest without a warrant. If the
person so concerned is believed to have "a design to commit any cognizable
offence" and "cannot be otherwise prevented," the police officer can forthwith
arrest "the person so designing" (s. 151). See. ]agdish Chander Bhatia v.
State, 1983 Cr LJ NOC 235 (Del.)
Even in cases of bad livelihood, an officer may arrest any person belonging to
one or more categories of persons as specified ins. 109 or s. 110 Cr.P.C.

Govind Prasad v. W.B., 1975 Cr LJ 1249 (Cal.). It has been held in Virna/
Kumar Sharma v. State ofU.P. [1995 Cr LJ 2336 (All.)] that a person who has
been arrested must be informed of the grounds of arrest with greatest despatch
as soon as possible however, it may nor be immediately.

The Hon'ble Full Bench of the Allahabad High Court [vikram v. State, 1996 Cr
LJ 1536 (All.)] held that the arrested person must be informed of the bare
necessary facrs leading to his arrest including the facts that in respect of whom
and by whom the offence is said to be committed, date, rime and place of
occurrence of the offence and if this is contested by the accused of being nor
informed, it is the burden of the prosecution to establish that the requirements
of section 50(1) Cr.P.C. and Art. 22(1) of the Constitution have been fully
complied with.

Section 51 of the Code prescribes for passing a receipt in respect of articles

seized, other than necessary wearingapparel, from the search of the person
arrested under a warrant which does not provide for the taking of bail, or
under a warrant which provides for the taking of bail but the person arrested
cannot furnish bail, as a precautionary measure for accounting for the articles.
 10

Where the accused is not given the grounds of such arrest as per section 50 of
the Code, the search under such conditions becomes illegal.

Section 54 of the Cr.P.C confers the right on an arrested person to have his
medical examination done. It is the duty of the Magistrate to inform the
arrested person about his right to get himself medically checked and direct the
examination of the body of such person by a registered medical practitioner,
when an arrested person alleges, either when he is produced before a
Magistrate or at any time during the period of his detention in custody that the
examination of his body will afford evidence which will disprove the
commission by him of any offence or which will establish the commission by
any other person of any offence against his body.

Section 56, 57 and 76 of Cr.P.C. has the constitutional sanction vide Art. 22(2)
of the Constitution of India which directs that the person arrested and detained
in custody shall be produced before the nearest Magistrate within a period of
24 hours of such arrest excluding the time necessary for journey from the place
of arrest to
the Court of the Magistrate.

Section 56 provides that a police officer shall on making an arrest without

warrant produce the concerned before a Magistrate having jurisdiction in the
case or before the OIC of the thana.

Section 57 echoes clause 2 of Art. 22, mentioned above, but it is to be read

with s. 167, as stated in rule 172(a) of the Orissa Police Manual that requires
that an accused shall be sent forthwith to the nearest magistrate, together with
the copy of the entries in the case diary, within the stipulated time period.

The counterpart of s. 57, s. 76 becomes applicable in case of a person arrested

under a warrant. Section 57 and 76 empowers the police officer to keep the
arrested person in its custody for a period not exceeding twenty-four hours for
investigation in relation to the case for which such arrest has taken place.

In D.K Basu v. State of West Bengal, (1997) 1 SCC 416, the Apex Court
lamented the growing incidence of torture and deaths in police custody and
felt necessary as it laid down that in addition to the statutory and
constitutional requirements, it would be useful and effective to structure an
appropriate mechanism for contemporaneous recording and notification of all
cases of arrest and detention to bring in transparency and accountability. To
that effect, the court issued 11 commandments "to be followed in all cases of
arrest or detention till legal provisions are made in that behalf as preventive
measures."

x. Bail:
The police has on hand another prescriptive process that follows the arrest of
an accused or suspect with or without a warrant and that is its decision to
either forward the arrestee to the Court or take bail from such person. The
Code of Criminal Procedure lays down the provisions as regards bail for which
purpose they are broadly classed into two categories in consonance with the
classification of the offences, bailable and non-bailable. The police powers to
admit to bail is contained in ss. 436, 437, 438, and 441 of the Code.
 11

The basic rule is to release him on bail unless there are

circumstances suggesting the
possibility of his fleeing from justice or thwarting the course of
justice.
See. State of Rajasthan v. Balchand, AIR 1977 SC 2447: 1978 Cr LJ
195; Gudikanti Narasimhulu v. Public Prosecutor, A.P.,
AIR 1978 SC 429: 1978 Cr LJ 502.

Another area is concerned, Section 441 Cr.P.C. It contemplates furnishing of a

personal bond by the accused person and a bond by one or more sufficient
sureties conditioned with the time and place for his appearance.

The critical aspect about this section is the discretionary power of the police
officer to fix the amount of the bond for such sum of money that it thinks
sufficient that shall be executed by such person to be released on bail. It has
been held that
an accused person is entitled as of right to bail, provided the necessary
conditions prescribed by law are fulfilled and under this section that
contemplates the execution of a bond with sureties, the amount of the bond is
not to be excessive and is to be fixed with due regard to the circumstances of
each case. The amount of the bond should be in accordance with the position
in life occupied by the person to be released on bail. Further, not monetary
suretyship but undertaking by relations of the petitioner or organisations to
which he belongs may be better and more relevant. See. Daulat Singh, (1891)
14 All. 45; Rajballam Singh, (1943) 22 Pat. 726; Niamat Khan, (1950) 30 Pat.
886; Banarashidas, (1937) Nag. 168; State of Rajasthan v. Balchand, AIR 1977
SC 2447: 1978 Cr LJ 195; Mohd Tariq v. Union of India, 1990 Cr LJ 474: 1989
All LJ 85. See Syed H. Afzal Qadri, op. cit., pp. 99, 101;

In this case, the Court demonstrated an uncompromising posture to any such

police deviance in the following citation: In Advocate General Bihar v. M.P.
Khari Jndustries, AIR 1980 sc 946: this Court held that" .... It may be
necessary to punish as a contempt a course of conduct, which abuses and
makes a mockery of the judicial process and which thus extends its pernicious
influence beyond the parties to the action and affects the interest of the public
in the administration of justice. The public have an interest, an abiding and a
real interest and vital stake in the effective and orderly administration of justice,
because unless justice is so administered, there is the peril of all rights and
liberties perishing. The Court has the duty of protecting the interest of the
public in the due administration of justice and so it is contempt of Court not in
order to protect the dignity of the Court against 'Contempt of Court' may seem
to suggest, but to protect and to vindicate the right of the public that the
administration of justice shall not be prevented, prejudiced, obstructed or
interfered with. "

xi. Remand:
When any investigation cannot be completed within 24 hours of the arrest of
an accused vide s. 57 of the Code and that there are reasonable grounds for
believing that the accusation or information is well-founded and the station
officer is further in a position to show satisfactory grounds for the application
for a special order for the detention of the accused in police custody u/s. 167
Cr.P.C., (for detailed discussion on 'police custody', refer to 'CBI Vs. Anupama
Kulkarni, 1992 SCR (3) 158) the SHO of the police station or the investigation
officer not below the rank of sub-inspector shall forward the accused to the
nearest Judicial Magistrate (whether or not he has the jurisdiction to try the
case), together with a copy of the entries in the case diary relating to the case,
and report the matter to the Superintendent, but in no case shall the accused
remain in police custody for a longer time than is reasonable without the
authority of a Magistrate. See. Article 22(2), Constitution ofindia; Section
167(1), Cr.P.C.
 12

Where a Judicial Magistrate is not available, it is the Executive Magistrate that

does the needful with the procedures remaining the same except that the
detention will be for a term not exceeding seven days and any further extension
of the remand will be done by the competent Magistrate with the Executive
Magistrate transmitting all the records of the case to the nearest Judicial
Magistrate. Section 167(2A), Cr.P.C.

Where the accused surrendered in the Court and the prosecution applied for
police custody, but the prayer could not be granted till the expiry of first fifteen
days, it was held that the Magistrate rightly refused police custody (Bhajan Lal
v. State of U.P., 1996 Cr LJ 460 (All.).

Where members of the army or the para-military come in aid of civil

authorities for maintenance of law and order, they have absolutely no authority
or power of investigation or interrogation. The Court has held that the remand
of accused to the army custody on prayer of IO is highly improper, illegal and
ultra vires of the Constitution. Shri joyanta Borbora v. State of Assam, 1992
Cr LJ 2147 (Gau.)

In Khatri v. State of Bihar, popularly known as the "Bhagalpur Blinding

case," [(1981) 1 SCC 632: AIR 1981 SC 928: 1981 Cr LJ 470], that the
Magistrate or Sessions Judge before whom the accused appears is under an
obligation to inform the accused that if he is unable to engage a lawyer on
account of poverty, he is entitled to obtainfree legal service at the cost of the
State. The Supreme Court has given necessary directions to
Magistrate,Sessions Judges and State Government with guidelines to be
followed in this regard.

The police have no right to refuse to allow the legal adviser of an accused
person, remanded to their custody, to interview him, or his relatives to supply
him with food and clothing, as long as they satisfY themselves that no
objectionable articles are supplied. [Llewelyn Evans, (1926) 28 Born LR 1043:
50 Born 741] The right of the accused to consult and to be defended by a
lawyer of his choice is guaranteed under Art. 22(1) of the Constitution of India.

In Khatri v. State of Bihar, Sandip Kumar Dey and Hussainara Khatoon cases,
it was held that the Magistrates need to see that the accused is produced
before the court when the remand order is passed and cautioned the
Magistrates that in granting remand they should not act mechanically.

xii. Interrogation:
Interrogation is an engagement process that represents one of the first points
of contact between the police and the 'publics' related to the case, as s. 161 of
the Code do not distinguish those who are interrogated as complainant, victim,
accused, accomplices or witnesses. See also. Criminal Law (Amendment)
Act,2013.

Section 162, Cr.P.C. does not affect the provisions of s. 27 of the Indian
Evidence Act, 1872 and therefore information leading to the discovery of a fact
made to the police and admissible ufs. 27 of the Evidence Act, is not rendered
inadmissible u/s. 162 and do not offend against Art. 14 of the Constitution
oflndia. Ramakrishna v. State of Bombay, 1955 Cr LJ 196 (SC).

The process of interrogation comprises of the act of an impeller-custodian

against a person in its custody by arrest, police remand, or even where the
custody per se is unauthorised. The police habit of charging the people, then
beat up with standardised crimes even got the name of mock crime. The larger
 13

problem is that the victims of the commonly reported incidents of police

violence are generally the poor alleged in case of petty crimes.

xiii. Investigation: its subsequent adjudication between the police

and the Magistrate.
1. The executive function of the police department.
Investigation of an offence is the field exclusively reserved
for the executive through the police department, the
superintendence over which vests in the State Government. The
executive which is charged with a duty to keep vigilance over law
and order situation is obliged to prevent crime and if an offence
is alleged to have been committed it is its bounden duty to
investigate into the offence and bring the offender to book. Once it
investigates and finds an offence having been committed it is its
duty to collect evidence for the purpose of proving the offence.
Once that is completed and the investigating officer submits report
to the Court requesting the Court to take congizance of the
offence under section 190 of the Code its duty comes to an end
subject to the provision contained in Section 173 (8).

xiv. Whether a magistrate could direct the police to submit a charge-

sheet, when the police, after investigation into a cognizable offence,
had submitted a report of the action taken under s. 169, Cr.P.C., that
there was no case made out for sending up the accused for trial.

''Magisterial vigil does not terminate on the filing of the police

report on the conclusion of the investigation and the court is
not bound to accept the results of an investigation conducted
by the police. In the case the police concludes that no case is
made out against the accused, the Magistrate has to issue a
notice to the informed/victim and hear him out. After hearing
the informant, the court can, notwithstanding the closure
report, choose to proceed with the matter, as a case based on
police report or even a prior complaint.''

1. There was no such power conferred on a magistrate either

expressly or by implication. See. Abhinandan Jha & Ors vs Dinesh
Mishra, 1967 SCR (3) 668

2. When a cognizable offence is reported to the police they may after

investigation take action under s. 169 or s.170 Cr.P.C. If the- police :think
there is not sufficient evidence against the accused, they may, under s. 169
release the accused from custody on his executing a bond to appear before
a competent magistrate if and when so required; or, if the police think there is
sufficient evidence, they may, under s.170, forward the accused under
custody to a competent magistrate or release the accused on bail in cases
where the offences are bailable. In either case the police should submit a
report of the action taken, under s.173, to the competent magistrate who-
considers it judicially under s. 190 and takes the following action :

(1) If the report is a charge-sheet under s.170 it is open to the

magistrate to agree with it and take cognizance of the offence
 14

under s.190 (1) (b); or to take the view that the facts disclosed do
not make out an offence and decline to take cognizance. But he
cannot call upon the police to submit a report that the accused
need not be proceeded against on the ground that there was
not sufficient evidence.
(2) If the report is of the action taken under s.169, then the
magistrate may agree with the report and close the proceeding.
If he disagrees with the report he can give directions to the police
under s.156 (3) to make a further investigation. If the police, after
further investigation submit a charge-sheet, the magistrate may
follow the procedure where the charge-sheet under s.170 is filed;
but if the police are still of the opinion that there was not sufficient
evidence against the accused, the magistrate may agree or
disagree with it. Where he agrees, the case against the accused
is closed.
(3). Where the magistrate disagrees and forms the opinion that
the facts set out in the report constitute an offence, he .can take
cognizance under s.190 (1) (c). The provision in s.169 enabling the
Police to take a bond for the appearance of the accused before a
magistrate if so required, is to meet such a contingency of the
magistrate taking cognizance of the offence notwithstanding the
contrary opinion of the police. The power under s.190 (1) (c) was
intended to Secure that offences may not go unpunished and justice
may be invoked even where persons individually aggrieved are
unwilling or unable to prosecute, or he police either wantonly or
through a bona, fide error do not submit a charge-sheet. But the
magistrate cannot direct the Police to submit a charge-sheet,
because the submission of the report depends entirely upon the
opinion formed by the police and not on the opinion of the
magistrate. The magistrate, if he disagrees with the report of the
police, can. himself take cognizance of the offence under s.190 (1)
(c) or (c), but, be cannot compel the police to form a particular
opinion on investigation and submit a report according to such
opinion. In Abhinandan Jha's case, State of Gujarat v. Shah
Lakhamshi, A.I.R. 1966 Gujarat 283 (F.B.); Venkatusubha v.
Anjanayulu, A.I.R. 1932 Mad. 673; Abdul Rahim Vs. Abdul
Muktadin, A.I.R. 1953 Assam 112 ;Amar Premanand Vs. State, A.I.R.
1960 M.P. 12 and A.K.Roy vs. State of West Bengal. A.I.R. 1962 Cal.
135 (F.B.) approved. State Vs. Muralidhar Govardhan, A.I.R. 1960
Bom. 240 and Ram Wandan v. State, A.I.R. 1966 Pat. 438,
disapproved.

xv. Investigation by Police-Further investigation in case in which one

investigating officer had submitted a final report under Section 172 (2)
of Criminal Procedure Code, 1973, but on which the Court had not
passed any order-
Section 156 enables the officer in-charge of a Police Station to investigate
without the order of a Magistrate into a cognizable case committed within
the area of the police station. Section 173 (8) enables an officer-in-charge of
the Police Station to undertake for their investigation in a case where he has
already submitted a report under sub-section (2) of Section 173 and if in
course of such further investigation he collects additional oral or documentary
 15

evidence, he has to forward the same in the prescribed form to the

Magistrate. See. State Of Bihar And Anr vs J.A.C. Saldanha And Ors,1980 AIR
326.

xvi. Magistrate Can’t Order Further Investigation At Post Cognizance

Stage:- On 2 February, 2017, a two Judge bench of the Hon'ble Supreme Court
in Criminal Appeal No. 1171 OF 2016 ( Arising out of S.L.P (Criminal) No.3338
OF 2015), Amrutbhai Shambhubhai Patel Vs.Sumanbhai Kantibhai Patel and
Ors,held that Magistrate cannot order further investigation after the cognizance
has been taken, process has been issued and accused has entered appearance
in response thereto. Similarly, In Nandita Sethi vs. State of Orissa, Crl.
Revision no. 478 of 2016, the Hon'ble Orissa High Court held that Magistrate
Can’t Direct Further Investigation On Defacto Complainant’s Plea.

The power of the Magistrate under section 156 (3) to direct further
investigation is clearly an independent power and does not stand in
conflict with the power of the State Government. The power conferred
upon the Magistrate under section 156 (3) can be exercised by the
Magistrate even after submission of a report by the investigating
officer which would mean that it would be open to the Magistrate
not to accept the conclusion of the investigating officer and direct
further investigation. This provision does not in any way affect the
power of the investigating officer to further investigate the case and
even after submission of the report as provided in section 173 (8).
See. State Of Bihar And Anr vs J.A.C. Saldanha And Ors,1980 AIR
326.

xvii. "inquiry" and "investigation"-Difference between.

Investigation is a matter for the police under the scheme of the Code. Judicial
opinion seems to be settled and there are several authorities of the Supreme
Court where interference by the Court into police investigation has not
been approved. There is however. residuary jurisdiction left in the court to
give directions to the investigating agency when it is satisfied that the
requirements of the law are not being complied with and investigation is
not being conducted properly or with due haste and promptitude. The court
has to be alive to the fact that the scheme of the law is that the investigation
has been entrusted to the police and it is ordinarily not subject to the
normal supervisory power of the court. See. State Of West Bengal & Ors. Etc
vs Sampat Lal & Ors. Etc, 1985 SCR (2) 256.

''The main distinction, therefore, was that inquiry was a magisterial process
while investigation was the process of collection of evidence through the police
machinery.''

"When an unnatural death occurs or a prima facie case of the commission of a

cognizable offence is brought to the notice of the police authorities, it is their
duty under the Code of Criminal Procedure to conduct an investigation and
ascertain the cause of the death. See. State Of West Bengal & Ors. Etc vs
Sampat Lal & Ors. Etc, 1985 SCR (2) 256.

III. Conclusion: According to A.S. Gupta, the bad reputation of the police had
led to the recommendation by the Second Law Commission in 1855 that they
 16

should not have any authority to record the confession of an accused person.
See. A.S: Gupta, The Police in British India (1861-1947), Concept Publishing Co.,
New Delhi, 1979, p. 204. Bench of the Hon'ble Supreme Court, consisting of
Justice Doraiswamy Raju and Justice Arijit Pasayat, described the acquittal of
the 21 accused by the High Court that upheld the fast track court's judgment,
as nothing but a travesty of truth and a fraud on the legal process. It also said
that "no sanctity or credibility can be attached and given to the so-called
findings." The Hon'ble Bench noted that "the investigation (in the case) appears
to be perfunctory and anything but impartial, without any definite object of
finding out the truth and bringing to book those who were responsible for the
crime."

Inasmuch as the cutting edge of the rule of law that wields so great a
power, there was the only one thing in the police that affected the people and
the government the most and according to Sir John Woodburn, Lieutenant-
Governor of Bengal, "the evil is essentially in the investigating staff. It is
dishonest and it is tyrannical ... ". According to him, "The honest policeman
rigs the evidence to convict the man he knows is guilty. Perhaps it is the only
way he can get a conviction. The dishonest policeman rigs the evidence to
convict a man he knows is innocent." That the process of investigation
characterizes the nature of policing to a great extent and constitutes as one of
the most important occasions for bringing the police and 'publics' into contact.
The process is not an indivisible whole, but involves many interactional stages
assuming different forms of contact appropriate to each. There prevails a
serious crisis of confidence that afflicts public opinion toward the police. Thus,
to minimize the improprieties in the process of criminal investigation, it
requires a holistic approach that studies the issues and problems of police
work in its wider organizational and societal contexts to formulate meaningful
schemes in significantly altering the contemporary practice of police
investigation, a fortiori, an illegal investigation does not vitiate trial.

“Trial judge as the kingpin in administration of Justice..”

--- See. All India Judges Association vs Union Of India (Uoi) And Ors.
Citations: AIR 2002 SC 1752, 2002 (3) ALD 39 SC, 2002 (4) ALT 41
SC, 2002 (2) AWC 395 SC, 2002 (2) BLJR 1144, 2002 (5) BomCR
242, 2002 (93) FLR 628, (2002) 3 GLR 2017, 2002 (2) JCR 248 SC,
JT 2002 (3) SC 503, 2001 (2) SCALE 327, (2002) 4 SCC 247, 2002 2
SCR 712, 2002 (2) SCT 735 SC, 2002 (2) SLJ 480 SC, (2002) 2
UPLBEC 1246.
 17

Paper Presented by

Sri Shaik Ibrahim Sharief,

I Addl. Junior Civil Judge,
Machilipatnam.

Section 2 (h) Cr.P.C defines Investigation as it includes all the

proceedings under this code for collection of evidence conducted by a police
officer or by any person ( other than a Magistrate ) who is authorized by a
Magistrate in this behalf.

Broadly speaking, the investigation of an offence consists of

(1) Proceeding to the place of offence;

(2) Ascertainment of the facts and circumstances of the case;
(3) Discovery and arrest of the suspected offender
(4) Collection of evidence relating to the commission of the offence which may
consist of (a) examination of various persons (including accused), who
appear to have knowledge of offence and reducing their statements into
writing if I.O thinks fit (b) search of the places or seizure of things
considered necessary for the investigation
(5) Formation of the Opinion as to whether on the materials collected there is a
case to place the accused before the court for trial and if so , taking
necessary steps for the same by filing of a charge sheet under sec 173
Cr.P.C.

Usually Investigation starts after registration of FIR. If on the basis of

F.I.R , the station house officer has reason to suspect commission of a
cognizable offence , he is required forthwith to send a report of the same i.e.,
copy of FIR along with the original report of the informant. But In respect of
non-cognizable offences, as they are more or less considered private criminal
wrongs; the code enjoins that a police officer shall not investigate because the
general policy is not to use the State agency i.e., Police for investigation of such
offences . However if a competent Judicial Magistrate considers it desirable
that a particular non cognizable offence should be investigated into by the
police, he can order the police to do so.

To enable the Police officer for proper investigation of case, he is

conferred with the following powers by the Code:

(i) Power to require attendance of witnesses: As per Sec.160(1) Cr.P.C an

investigation officer may be order require attendance before himself of any
person acquainted with facts and circumstances of the case by an order in
writing, examine such person and record his/ her statement if he thinks it
 18

required. But shall not summon a child below the age of 16 years or a woman
to the police. The Investigation officer shall examine child below 16 years of
age or woman at their house. However the investigation officer has no authority
to use force for compelling attendance of such a person; nor does the officer
have any power to arrest or detain such a person; A person who fails to comply
with the order of police may be prosecuted for disobedience u/sec.174 IPC.

Acquainted with facts and circumstances of the case: In Nandini

Satpathi Vs. P.L. Danni (1978) 2 SCC 424, the apex court held that ‘any
person acquainted with facts and circumstances of their case includes an
accused person. . The accused does fill the role of such person because the
police suppose him to have committed the crime and must, therefore, be
familiar with the facts. However such a person has been given protection both
by section 161 (2) CRPC and Article 20 (3) of the constitution against the
questions the answers to which would have a pendency to expose him to a
criminal charge.

(ii) Power to interrogate witnesses and to record their statements: In

order to facilitate the collection of evidence, the IO has been given power to
examine orally any person supposed to be acquainted with fact and
circumstances of the case and reduce into writing any statement made to in
the course of investigation and if he does so, he made a separate and true
statement of each such person. If I.O. records only one joint statement of
several witnesses during investigation, such a statement is clearly in
contravention of section 161(3) Cr.P.C but the court not render those person as
incompetent witnesses are render their evidence as in admissible. The same
has been held in Tilkeshwar Sing Vs. State of Bihar AIR 1956 SC 238.

ROLE OF COURTS

In so far as Investigating of cognizable offences wherein F.I.R was directly

lodged with police by the informant, the court has no role to play means the
court is not empowered to direct or guide the manner of investigation.
Magistrate has no control over investigation since it is an exclusive domain of
police- AIR 2000 SC 313. In the decision reported in AIR 2015 SC 1742 the
Apex Court observed that arrest of accused during the course of investigation
ordered U/sec.202 Crpc by Magistrate is not warranted.

During the course of Investigation, the Police officer who is investigating

the case may move requisition before the Magistrate concerned for recording of
confession of accused or statements of witnesses under section 164 CrPC.

JURISDICTION OF COURTS
 19

Introduction:-

The following classes of criminal courts, set up under the Cr.P.C., that
are subordinate to the High Court of the State:

(i) “Courts of Session,

(ii) Judicial Magistrates of the first class and, in any Metropolitan area
(areas where the population exceeds one million), Metropolitan
Magistrates,
(iii) Judicial Magistrates of the second class, and
(iv) Executive Magistrates.” (Cr.P.C., section 6).

Within this hierarchy of Courts, the original jurisdiction, that is, the
jurisdiction to try the case in the first instance, of criminal courts is of two
kinds:

1. Territorial or local jurisdiction, which pertains to the place where the

case will be tried, and
2. Jurisdiction to try a particular offence, which pertains to the Court in
which the case will be tried.

TERRITORIAL OR LOCAL JURISDICTION

Criminal courts function within the territorial divisions that are assigned
to them (Cr.P.C., Chapter XIII (sections 177-189) deals with "Jurisdiction of the
Criminal Courts in Inquiries and Trials"). Ordinarily, an offence is tried by a
“court within whose local jurisdiction it was committed” (Cr.P.C., section
177). However, if an offence is committed within the jurisdiction of more than
one court (for example, a rape or a murder committed in a moving vehicle) it
may be tried by any court in whose jurisdiction the offence or a part of it was
committed. The Cr.P.C provides for such alternative venues of trial in the
interests of justice (Cr.P.C., section 178-184).

JURISDICTION TO TRY A PARTICULAR OFFENCE:

The First Schedule of the Cr.P.C. mentions the courts that have the
jurisdiction to try the offences under the IPC. The High Court or Court of
Sessions, being superior courts, can try any offence under the IPC (Cr.P.C.,
section 26). Serious offences, like murder, dacoity, rape etc. can be tried by a
Court of Sessions of the division where the offence was committed. Theft and
extortion are triable by any Magistrate.

APPELLATE JURISDICTION:
 20

The party that feels aggrieved by the judgment of a subordinate court can
file an appeal in a higher court. This jurisdiction of the higher court to
entertain the appeal is known as appellate jurisdiction. An appeal lies to the
immediate superior court. For example, if a case is tried by a Magistrate, then
first appeal can be filed in the Court of Sessions. The second and the third
appeal can be filed, in appropriate cases, in the High Court of the State and the
Supreme Court respectively.

The party aggrieved by the judgment of a Court of Session can file an

appeal in the High Court of the concerned State.
 21

Paper presented by

Smt. Gogi Kalarchana,

II Addl. Junior Civil Judge,
Vijayawada.

INTRODUCTION
Sub – Topic – I :
“Mankind has shifted from the state of nature towards a civilized society.
Award of punishment following conviction at a trial in a system wedded to rule
of law is the outcome of cool deliberation in the court room after adequate
hearing is afforded to the parties, accusations are brought against the accused,
the prosecutor is given an opportunity of supporting the charge and the
accused is equally given an opportunity of meeting the accusations by
establishing his innocence. It is the outcome of cool deliberations and the
screening of the material by the informed mind of the judge that leads to
determination of the ills".
This observation made by Hon’ble Supreme Court is of outmost
importance while appreciating the role of proper and effective investigation in
delivering justice. As observed by the court in In Jamuna vs. State of Bihar,
1974 Cr.L.J. 890 (S.C Para 11 of the report), it should not be forgotten that
“the duty of the investigating officer is not merely to booster up a prosecution
case with such evidence as may enable a Court to record a conviction but to
bring out the real unvarnished truth”.
Thus, it is evident that the manner in which police investigations are
conducted is of critical importance to the functioning of the Criminal Justice
System. Not only serious miscarriage of justice results if the collection of
evidence is not properly or if there is any error or malpractice, but successful
prosecution of the guilty depends on a thorough and careful search for truth
and collection of evidence which is both admissible and probative.
In this search it is the duty of the police to investigate properly and
thoroughly and collect all evidence, whether for or against the suspect.
Protection of the society being the first responsibility of the police and the laws,
procedures and police practices must be such as to ensure that the guilty
person will be convicted for his crime and innocent will never be harassed. The
concept of reasonable and fair trial would be one in which the accused as well
as the victim or the aggrieved person gets justice. Though it is duty of police
but in this process courts will play critical role to have some check over proper
investigation.
Definition:
Clause(h) of section 2 of Criminal Procedure Code (in short Cr.P.C.) defines the
term "Investigation" in an exclusive manner "so as to bring into its fold all the
 22

proceedings under the code of Criminal Procedure for collection of evidence

conducted by a police officer or by any person, other than a Magistrate, duly
authorized by a Magistrate in that behalf."
Thus, investigation is a careful search or examination with an intention to
discover facts. It requires a liberal approach : The Honourable apex Court in
AIR 2009 Supreme Court, 984, Between: "Nirmal Singh Kahlon Vs State of
Punjab and others", pleased to hold that :
"Definition and scope of the expression investigation and officer In-Charge of a
Police Station must receive a liberal interpretation." How an investigation should
be “
In (2015) 2 SCC 62, Between: Balinder Kaur Vs State of Punjab ( Two
Judges Bench )
Pleased to hold that "The criminal investigation plays an important and special
role in the administration of Criminal Justice. The investigation must be
conducted in an unbiased manner and investigation must be with objectivity and
dispassionate approach to men and matters and the investigating officer must
make a truthful presentation of the materials collected. Being the foundation
stone of the prosecution, the investigating officer must be trained to adopt proper
techniques of investigation and scientific temper must be included in them."
Process of Investigation :-
To understand the process of investigation succinctly, I intend to quote
an important judgment of the Hon'ble Supreme Court in H.N. Rishbud Vs.
State of Delhi, AIR 1955 SC 196 and it is also considered by our own Hon’ble
High court in 2014 (2) ALD (Crl.) 810, Between: GBC Raj Gopal Vs Governor
of Andhra Pradesh and others, wherein the stages of investigation Under the
Code of Criminal Procedure,1973 is clearly explained.
Investigation consists generally of the following steps:
(1) Proceeding to the spot,
(2) Ascertainment of the facts and circumstances of the case,
(3) Discovery and arrest of the suspected offender,
(4) 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 of seizure of things considered necessary for the investigation
and to be produced at the trial, and
(5) Formation of the opinion as to whether on the material collected there is a
case to place the accused before a Magistrate for trial and if so taking the
necessary steps for the same by the filing of a charge- sheet under section 173
of Cr.P.C
 23

Types of Investigation are clearly described in 2013 (1) ALD (Crl.) 519,
Between: Vinay Tyagi Vs Irshad Ali alias Deepak and others (Two Judges
Bench) as follows:
i. Initial Investigation
ii. Further Investigation
iii. Fresh or de novo or re-investigation.
The Initial Investigation is one which empowers police officer shall
conduct in furtherance of investigation from registration of an FIR. Such an
investigation itself can lead to filing of a final report under section 173 (2) of the
Code and shall take within its ambit the investigation which empowered officer
shall conduct in furtherance of an order for investigation passed by the Court
of competent jurisdiction in terms of Section 156(3) of the Code.
Further investigation is where the Investigating Officer obtains further
oral or documentary evidence after the final report has been filed before the
Court in terms of Section 173(8). This power is vested with the Executive. It is
the continuation of a previous investigation and, therefore, is understood and
described as a "further investigation", Scope of such investigation is
restricted to the discovery of further oral and documentary evidence. Its
purpose is to bring the true facts before the Court even if they are discovered at
a subsequent stage to the primary investigation. It is commonly described as
"Supplementary Report". "Supplementary Report" would be the correct
expression as the subsequent investigation is meant and intended to
supplement the primary investigation conducted by the empowered police
officer. Another significant feature of further investigation is that it does not
have the effect of wiping out directly or impliedly the initial investigation
conducted by the investigating agency. This is a kind of continuation of the
previous investigation. The basis is discovery of fresh evidence and in
continuation of the same offence and chain of events relating to the same
occurrence incidental thereto. In other words, it has to be understood in
complete contradistinction to a "reinvestigation",
"fresh" or "de novo" investigation.
However, in the case of a "fresh investigation", "reinvestigation" or "de
novo investigation" there has to be a definite order of the Court. The order of
the Court unambiguously should state as to whether the previous
investigation, for reasons to be recorded, is incapable of be infected upon.
Neither the investigating agency nor the Magistrate has any power to order or
conduct "fresh investigation". This is primarily for the reason that it would be
opposed to the scheme of the Code. It is essential that even an order of
"fresh"/"de novo" investigation passed by the higher Judiciary should always
be coupled with a specific direction as to the fate of the investigation already
conducted. The case where such direction can be issued are few and far
 24

between. This is based upon a fundamental principle of our criminal

jurisprudence which is that it is the right of a suspect or an accused to have a
just and fair investigation and trial. This principle flows from the constitutional
mandate contained in Articles 21 and 22 of the Constitution of India. Where
the investigation ex facie is unfair, tainted, mala fide and smacks of foul play,
the Courts would set aside such an investigation and direct fresh or de novo
investigation and, if necessary, even by another independent investigating
agency. This is a power of wide plenitude and, therefore, has to be exercised
sparingly. The principle of rarest of rare cases would squarely apply to such
cases. Unless the unfairness of the investigation is such that it pricks the
judicial conscience of the Court, the Court should be reluctant to interfere in
such matters to the extent of quashing an investigation and directing a "fresh
investigation". The law declared by this Court consistently is that the
learned Magistrate has no jurisdiction to direct "fresh" or "de novo"
investigation. However, once the report is filed, the Magistrate has
jurisdiction to accept the report or reject the same right at the threshold.
Even after accepting the report, it has the jurisdiction to discharge the accused
or frame the charge and put him to trial. But there are no provisions in the
Code which empower the Magistrate to disturb the status of an accused
pending investigation or when report is filed to wipe out the report and its
effect in law. The superior Courts have the jurisdiction under Section 482 of
the Code or even Article 226 of the Constitution of India to direct "further
investigation", "fresh", or "de novo" and even "reinvestigation". "Fresh", "de
novo" and "reinvestigation" are synonymous expressions and their result in law
would be the same. The superior Courts are even vested with the power of
transferring investigation from one agency to another, provided the ends of
justice so demand such action. Of course, it is also a settled principle that this
power has to be exercised by the superior Courts very sparingly and with great
circumspection. What ultimately is the aim or significance of the expression
"fair and proper investigation" in criminal jurisprudence? It has a twin
purpose. Firstly, the investigation must be unbiased, honest, just and in
accordance with law. Secondly, the entire emphasis on a fair investigation has
to be to bring out the truth of the case before the Court of competent
jurisdiction. Once these twin paradigms of fair investigation are satisfied, there
will be the least requirement for the Court of law to interfere with the
investigation, much less quash the same, or transfer it to another agency.
Bringing out the truth by fair and investigative means in accordance with law
would essentially repel the very basis of an unfair, tainted investigation or
cases of false implication. Thus, it is inevitable for a Court of law to pass a
specific order as to the fate of the investigation, which in its opinion is unfair,
tainted and in violation of the settled principles of investigative canons. It is
 25

held, therefore, that no investing agency is empowered to conduct a "fresh", "de

novo" or "re-investigation" in relation to the offence for which it has already
filed a report in terms of Section 173(2) of the Code. It is only upon the orders
of the higher Courts empowered to pass such orders that aforesaid
investigation can be conducted, in which event the higher Courts will have to
pass a specific order with regard to the fate of the investigation already
conducted and the report so filed before the Court of the learned Magistrate.
Order under Section 156(3) Cr.P.C. is in nature of a peremptory reminder
or intimation to police to exercise its primary duty and power of investigation:
In this context, the Honourable Supreme Court in 2013 Cri. LJ, 776 (SC)
(Two Judges Bench), Between Anju Chaudhary Vs State of UP and another,
pleased to hold as follows: “Section 156 primarily deals with the powers of a
police officer to investigate a cognizable case. While dealing with the application
or passing an order under Section 156(3), the Magistrate does not take
cognizance of an offence. Then Magistrate had applied his mind only for order
an investigation under Section 156(3) of the Code or issued a warrant for the
said purpose, he is not said to have taken cognizance. It is an order in the
nature of a pre-emptory reminder or intimation to the police to exercise its
primary duty and power of investigation in terms of Section 151 of the Code.
Such an investigation embraces the continuity of the process which begins
with collection of evidence under Section 156 and ends with the final report
either under Section 159 or submission of charge-sheet under Section 173 of
the Code. The Magistrate is competent to treat even a complaint termed as an
application and pass orders under Section 156(3), but where it takes
cognizance, there it would have to be treated as a regular complaint to be tried
in accordance with the provisions of Section 200 onwards falling under
Chapter XV of the Code. There also the Magistrate is vested with the power to
direct investigation to be made by a police officer or by such other person as he
thinks fit for the purposes of deciding whether or not there is sufficient ground
for proceeding. This power is restricted and is not as wide as the power vested
under Section 156(3) of the Code. The power of the Magistrate under Section
156(3) of the Code to order investigation by the police have not been touched or
affected by Section 202 because these powers are exercised even before the
cognizance is taken. In other words, Section 202 would apply only to cases
when Magistrate has taken cognizance and chooses to enquire into the
complaint either himself or through any other agency. But there may be
circumstances where the Magistrate, before taking cognizance of the case
himself, chooses to order a pure and simple investigation under Section 156(3)
of the Code.
Can a police officer refuse to register FIR under Section 154 Cr.P.C. when
a complaint is referred by Magistrate under Section 156(3) Cr.P.C.- ?
 26

Ans: NO
The police officer in this connection is obliged to receive complaint,
register it as an FIR under Section 154 and cause investigation there into. It is
not open to him either to refuse to cause investigation or even to inform
Magistrate that it is appropriate that investigation be caused by another police
station Akbaruddin owaisi Vs Govt. Andhra Pradesh and others, in 2013
(3)ALT (Crl.) 251.
A referred final report is filed by investigating officer by referring the case
as that of Civil nature and protest petition is filed by complainant. In such a
case notice to accused is not contemplated, but, the procedure contemplated is
to issue notice to complainant. It was held in 2014 (1) ALD (Crl.)727 (AP) that
"as investigation was conducted only on the basis of complaint given by victim, it
is incumbent to inform victim as to result of investigation and orders
thereon."Collection of representation / material from accused persons and to
act upon it by way of further investigation by investigating officer is Bad.
In 2014 (1) ALD (Crl.) 727 (AP), Between : Shaheen Hussain Khan
and another Vs State of Andhra Pradesh and another, it was held that "after
registration of the crime and once the accused is arrested and was sent to
Court with a remand report, till the final report is closed by the Court, the
matter has to be treated as pending before the Court and in pending matters,
police have no right to take any representation or material concerning the case
from accused persons without permission of the Court. When the crime was
pending in the Court, collecting representation or material from the accused
persons by the Investigating Officer is absolutely incorrect and contrary to the
procedure. If accused has got any objection as to the crime registered against
him, he should report to the Court but not to the Investigating Officer. Further,
the Investigating Officer also, if accused submits any representation, he should
forward the same to the Court but he cannot act on it". Once Final Report is
filed by police, the Magistrate has jurisdiction to ignore opinion expressed by
investigating officer and he can independently apply his mind to facts that have
emerged from investigation and Magistrate can thus, disagree with police
report, take cognizance and issue process and summons to accused. (Held in
AIR 2015 SC 3566 (Two Judges Bench), Between : Chandra Babu alias Moses
Vs State, through Inspector of Police and others).
INVESTIGATION & ENQUIRY - DIFFERENCE
"Investigation" is different from "Enquiry". Investigation is done by the
Police Officer, whereas, enquiry is conducted by a Magistrate. In proceedings
relating to Warrant Procedure Cases, there are two distinct stages. The first
stage is known as "Enquiry" and these onstage is known as "Trial". "Enquiry"
starts when the Magistrate, who receives a complaint or charge sheet takes
cognizance of an offence and it comes to a close with the framing of a Charge.
 27

"Enquiry" may even end in discharge of the accused in which cases no Charge
will be framed and there will be no trial. The second stage called "Trial" begins
with the framing of the Charge after enquiry and ends with the pronouncement
of the Judgement, whether it is a Judgement of "Conviction" or "Acquittal". In
the case of offences, which are triable by summons procedure there will not be
any enquiry and trial starts with the Magistrate taking cognizance of the
offence and ends with the disposal of the case.
Can a Magistrate monitor investigation to ensure proper and fair
investigation?
The Apex Court in Sakiri Vasu Vs. State of U.P. 7 December 2007, AIR 2008
SC 907 = 2008 (2) SCC 409 = (2008) 1 SCC (Cri.) 440
interpreted section 156 (3) of Cr.P.C., and laid down principle that the
Magistrate can check the duties performed by the police and in case it appears
not satisfactorily, he can issue a direction to the police to do investigation
properly and can monitor the same.
The Hon’ble Apex Court held in para 11 that
11. In this connection we would like to state that if a person has a
grievance that the police station is not registering his FIR under Section 154
Cr.P.C., then he can approach the Superintendent of Police under Section 154
(3) Cr.P.C., by an application in writing. Even if that does not yield any
satisfactory result in the sense that either the FIR is still not registered, or that
even after registering if no proper investigation is held, it is open to the
aggrieved person to file an application under Section 156 (3) Cr.P.C., before the
learned Magistrate concerned. If such an application under Section 156 (3) is
filed before the Magistrate, the Magistrate can direct the FIR to be registered
and also can direct a proper investigation to be made, in a case where,
according to the aggrieved person, no proper investigation was made.
The Magistrate can also under the same provision monitor the
investigation to ensure a proper investigation.
The Court further held in para 14 to 18 that
14. Section 156 (3) states: Any Magistrate empowered under Section 190
may Order such an investigation as above mentioned. The words as above
mentioned obviously refer to Section 156 (1), which contemplates investigation
by the officer in charge of the Police Station.
15. Section 156 (3) provides for a check by the Magistrate on the police
performing its duties under Chapter XII Cr.P.C. In cases where the Magistrate
finds that the police has not done its duty of investigating the case at all, or
has not done it satisfactorily, he can issue a direction to the police to do the
investigation properly, and can monitor the same.
16. The power in the Magistrate to order further investigation under Section
156 (3) is an independent power, and does not affect the power of the
 28

Investigating officer to further investigate the case even after submission of his
report vide Section 173 (8). It is held in State of Bihar Vs. A.C. Saldanna
AIR 1980 SC 326 (Para 19 the Magistrate can order re-opening of the
investigation even after the police submits the final report.
17. In our opinion Section 156 (3) Cr.P.C., is wide enough to include all such
powers in a Magistrate which are necessary for ensuring a proper investigation,
and it includes the power to order registration of an F.I.R., and
of ordering a proper investigation if the Magistrate is satisfied that a proper
investigation has not been done, or is not being done by the police. Section 156
(3) Cr.P.C., though briefly worded, in our opinion, is very wide and it will
include all such incidental powers as are necessary for ensuring a proper
investigation.
18. It is well-settled that when a power is given to an authority to do
something it includes such incidental or implied powers which would ensure
the proper doing of that thing. In other words, when any power is expressly
granted by the statute, there is impliedly included in the grant, even without
special mention, every power and every control the denial of which would
render the grant itself ineffective. Thus, where an Act confers jurisdiction it
impliedly also grants the power of doing all such acts or employ such means
as are essentially necessary to its execution.
Monitoring investigation – principles laid down by the Apex Court.
The Apex Court in D. Benupani Asst. Director, Enforcement Directorate
(FERA) Vs. A. K. Bajoria, JT 1997 (9) SC 379), held that the law laid down by
the Supreme Court is that a blanket order fully insulating a person from arrest
would make his interrogation a mere ritual. It is not the function of the court to
monitor investigation processes so long as such investigation does not
transgress any provision of law. It must be left to the investigating agency to
decide venue, the timings and the questions and manner of putting such
questions to persons involved in such offences.
Distinction between section 156 (3) of Cr.P.C and Section 202 of Cr.P.C.
1. Power under section 156 (3) can be invoked by Magistrate at pre-
cognizance stage whereas powers under section 202 are to be invoked after
cognizance is taken but before issuance process.
2. Once the Magistate takes cognizance he is thereafter precluded from
ordering investigation under section 156 (3).
3. The power to direct investigation to the police authorities is available to
the Magistrate both under section 156 (3) and Sec. 202 of Cr.P.C.
4. The only difference is the stage at which the said powers may be invoked.
5. The Magistrate cannot direct investigation to any other person other than
police officer under 156 (3) of Cr.P.C., but he can direct investigation to any
other person other than police officer under section 202 of Cr.P.C.
 29

6. In ordering an investigation under 156 (3) of the code, the magistrate is

not empowered to take cognizance of the offence and such cognizance is taken
only on the basis of complaint of the facts by him which includes a police
report of such facts or information received from any person, other than a
police officer, under section 190 of the Code. Section 200 which falls in chapter
XV, indicates the manner in which the cognizance has to be taken
and that the magistrate may also inquired to the case himself or direct an
investigation to be made by a police officer before issuing process.
7. When a Magistrate orders investigation under Chapter XII of the code,
he does so before he takes cognizance of offence. Once he takes cognizance of
the offence, he has to follow the procedure envisaged in chapter XV of the
Code. The inquiry contemplated under section 202 (1) or investigation by police
officer or by any other person is only to help the Magistrate to decide
whether or not there is sufficient ground for him to proceed further on account
of the fact that the cognizance has already been taken by him of the offence
disclosed in the complaint but issuance of process had been post-poned.
8. When the complaint is referred under 156 (3) the police officer has to
issue the FIR but if it is referred under section 202 the police officer is not
supposed to issue the FIR. He has to make a G.D. entry and to proceed for
investigation.
9. After completion of investigation the police officer will forward police
report under section 173 (2) of Cr.P.C. on the complaint referred under 156 (3).
The police officer will file the report u/s 202 after completion of investigation on
the complaint referred u/s 202 Cr.P.C.
10. The police officer can make the arrest of the offenders during the course
of investigation on the complaint referred under 156 (3) of Cr.P.C. if an
investigation u/s 202 (1) is made by a person not being a police officer, he shall
have for the investigation all the powers conferred by the Cr.P.C. on an officer
in charge of police station, except a power to arrest without warrant.
(Rameshbhai Pandurao Hedau vs State of Gjarat on 19 March, 2010).
Negligence in investigations
Can negligence on part of investigating officer affect credibility of
prosecution version?
When direct testimony of eye witnesses corroborated by medical evidence
fully establish prosecution version, failure or omission or negligence on part of
investigating officer cannot affect credibility of prosecution version. Defective
investigation is not fatal where ocular testimony is credible. In Dhanaj Singh @
Shera and Ors. Vs. State of Punjab on 10 March, 2004 : AIR 2004 SC
1920, 2004 (1) ALD Cri 687, 2004 Cri.L.J 1807 In the case of a defective
investigation the Court has to be circumspect in evaluating the evidence. But it
would not be right in acquitting an accused person solely on account of the
 30

defect; to do so would tantamount to playing into the hands of the investigating

officer if the investigation is designedly defective. (Karnel Singh v. State of
M.P. 11TH August 1995, AIR 1995 SC 2472 In Paras Yadav and Ors. V.
State of Bihar, 12th January 1999, AIR 1999 SC 644, it was held that if the
lapse or omission is committed by the investigation agency or because of
negligence the prosecution evidence is required to be examined dehors such
omissions to find out whether the said evidence is reliable or not. The
contaminated conduct of officials should not stand on the way of evaluating the
evidence by the courts; otherwise the designed mischief would be perpetuated,
and justice would be denied to the complainant party. Acquitting the accused
on the sole ground of loopholes in the investigation would be adding insult to
inquiry. Any investigating officer, in fairness to the prosecutrix as well as the
accused, would have recorded the statement the statements of the two
witnesses and would have drawn up a proper seizure-memo in regard to the
Chaddi. That is the reason why we have said that the investigation was slip
shod and defective. We must admit that the defective investigation gave us
some anxious moments and we were at first blush inclined to think that the
accused was prejudiced. But on closer scrutiny we have reason to think that
the loopholes in the investigation were left to help the accused at the cost of the
poor prosecutrix, a labourer. To acquit solely on that ground would be adding
insult to injury.
What are the rights of accused during investigation?
The accused is having the following rights.
1. Right to free from torture
2. Right to compensation for torture
3. Right to privacy
4. Right to have record
Section 159 : Power to hold investigation or inquiry After receipt of the report
under section 157 the Magistrate is having several alternatives when the officer
in charge of the police station refuses to investigate a cognizable case and the
superior officer of police concurs with his view, the
Magistrate has the following alternative:
a) He may accept the report and close the case; or
b) He may order police to investigate; or
c) He may make an inquiry, or
d) He may depute his subordinate Magistrate to make inquiry, or
e) He may take cognizance, examine the witnesses and without issuing
process, direct the police to ascertain by investigation whether there are
sufficient grounds for proceeding. The power of the police to investigate any
cognizable offence is uncontrolled by the Magistrate and it is only in cases
where the police decides not to investigate that the Magistrate can either direct
 31

an investigation or himself proceed or depute a subordinate magistrate to

proceed to enquire into the case. But Magistrate has no power to stop
investigation and direct such magisterial enquiry in cases where police has
proceeded with investigation (S. N. Sarma V. Bipin Kumar Tiwari – AIR 1970
SC 786).
The object of this Section is that if the police is negligent in their duties
or for some reasons unwilling to investigate, the Magistrate has to supervise
the same. He can direct an investigation. Procedure for investigation in Non-
Cognizable Offence
procedure for investigation in non-cognizable offence.
Section 155 Cr.P.C., deals with procedure for investigation in non-
cognizable offence. There is a distinction between investigation of a cognizable
offence and non-cognizable offence. Officer in charge of a police station can
register a case and investigated to a cognizable offence though it was not
committed within the limits of the police station. But he cannot investigate an
offence of a non cognizable case.
In Keshav Lal Thakur vs. State of Bihar, 1996 (4) Crimes 121 SC = 1996
(11) SCC 557=1996 (7) Scale 598=1997 (1) Supreme 150), the Supreme
Court held that neither the police was entitled to investigate the offence in
question without the prior permission of the Magistrate nor the CJM was
entitled to take cognizance on the report submitted by the police in violation of
the provisions of Section 155 (2) of Cr.P.C. The offence under Section 31 of the
Representation of the Peoples Act 1950 is non-cognizable and therefore, the
police could not have registered a case for such an offence under Section 154
Cr.P.C. The police is not entitled to investigate into a non-cognizable offence,
except pursuant to an order of Magistrate under section 155 (2) of Cr.P.C. In
the absence of such an order of a Magistrate in the instant case, neither the
police can investigate into an offence nor submit a report in the final form
before the Magistrate. The magistrate is empowered to treat a police report as a
complaint under section 2 (d) of Cr.P.C. if the police investigate into a
cognizable offence on the basis of any complaint and ultimately on completion
of investigation comes to the finding that the offence committed is non-
cognizable in nature.
Can a police officer arrest a person when he is authorized to
investigate into a non-cognizable offence?
If the police officer is authorized to investigate a non-cognizable case,
that itself will not give power to police to arrest the accused without warrant. In
other words, a separate warrant of arrest has to be procured for arrest of
accused wanted in a non-cognizable offence.
Broad Supervision During Investigation Magistrate has to walk the
tightrope and balance to conflicting ideas, on one side the separation of
 32

executive from judiciary, namely the autonomy of investigation on one hand,

and on the other, the imperatives of fair, free and impartial investigation and to
ensure that an investigation is an effective investigation. This is a
circumstantial balance to be struck by the magistrate as per the facts of the
case. For eg: the magistrate cannot or rather ought not to direct the IO to do a
particular thing, however, he can ask the IO to investigate from a particular
angle. This power springs from section 156(3) Cr.PC only, by virtue of the
doctrine of “implied powers”, where the statue gives a particular power, it
impliedly gives all
the powers necessary to make the said power effective. (Sakiri Vasu V.
State (2008) SC). The exact import of word monitoring of investigation is
circumstantial. The magistrate has to ensure it is an effective investigation. The
correctness of Sakiri Vasu has been questioned subsequently by the SC in
Nirmal Singh Kahlon (2009) 2 judges bench, however nothing conclusive has
been held in this regard and only passing reference is made to the effect that
the decision needs reconsideration. SC has however followed Sakiri Vasu
subsequently in T.C.Thangraj v. V.Engammal, 2011 SC and many other
decisions.
The exact import of word 'monitoring of investigation' is too
circumstantial to be put in a straitjacket. Placing a narrow interpretation on
the phrase will render it sterile. The phrase, therefore, ought to receive a social
context or liberal interpretation. Illustrative case, where the power to pass
necessary directions may be used are: to protect witnesses, check disregard of
vital evidence (which may get obliterated in course of time), non - examination
of witnesses, deliberate shielding of some accused, or the investigation officer
being interested in the case. In such cases, a magistrate ought to push the
envelope and actively monitor the investigation, while avoiding investigating
himself, or directing investigation by a specific agency, with respect to which
there is a specific embargo on the powers of the magistrate.
 33

Paper Presented by

Sri A.Ramachandra Rao

II Metropolitan Magistrate for Railways,
Vijayawada.

Crimes are investigated by the police and during the investigation the
police interact with the Magistrates who preside over the courts at the gross
root levels. The scheme of the Code of Criminal Procedure, 1973 is designed to
see that during the course of investigation and before the commencement of
the trial, rights of the accused are protected. The Magistrates do not interfere
with the investigation and at the same time they closely supervise the
investigation. The Magistrate is kept at all the stages of the investigation, but
he does not ordinarily interfere with the investigation powers of the police.
Magistrate also performs the duties which ensure the fairness in the
investigation and collection the evidence by the police. Magistrate has the
power to order the investigation and in certain circumstances he can order the
stopping of investigation. In this module all the tasks which the magistrate
undertakes before commencement of trial are discussed. The role of the
Magistrate in the process before commencement of trial of a criminal case is
pivotal and the role of the magistrate in safeguarding the rights of the accused,
recording the confessions of the accused and the statements of the witnesses,
power to order and stop investigation are discussed elaborately in this module.
INTRODUCTION:
Police commence investigation after registration of the First Information
Report (hereinafter referred to as the FIR) under section 154 of the Code of
Criminal Procedure, 1973 (hereinafter referred to as the Cr.P.C.) in case of
cognizable offences and after receiving an order for investigation from the
Magistrate having jurisdiction to try or commit the case under section 155(2) of
the Cr.P.C., in case of non cognizable offences. After completion of the
investigation, the officer in charge of the police station files a report before the
court under section 173 of the Cr.P.C. which in known as charge sheet/challan
in common parlance. Though in the light of the scheme of the Cr.P.C. framing
of charges or the process of discharge is considered as part of trial,in practice,
commencement of recording of the evidence of prosecution witnesses is
considered to be the starting point of trial. Thus, framing of the charges and
the process of discharge are also briefly discussed under the head of pre-trial
process. It is to be mentioned that in the scheme of the Cr.P.C. it is Judicial
Magistrate who deals with all the cases at initial stage, whether or not he is
competent to try the case. If he is empowered to try the offence, he will
commence the trial and if the offence is exclusively triable by the Court of
Session he commits the case to the Court of Session under section 209 of the
Cr.P.C. Till the commencement of the trial or commitment of the case to the
 34

Court of Session, the Magistrate acts as supervisor of the investigation. The

Cr.P.C provides for independence of the police officers in the process of the
investigation of the offences and non interference of the judiciary in the
investigation process. At the same time to sustain the fairness in the
investigation by the police and protect the rights of the accused, Judicial
Magistrates are vested with certain powers. The Magistrates perform certain
functions such as sending the seized objects for forensic laboratories,
procuring of the specimen signatures and hand writing of the suspects for
sending them to the experts for analysis etc. which are indeed part of
investigating process. The object behind entrusting this kind of functions of the
Magistrates is to enhance the credibility of the scientific evidence.
But the general rule is that the courts do not interfere with the
investigating powers of the police officers. The Judicial Magistrate is kept in the
picture at all the stages of the police investigation but he is not authorized to
interfere with the actual investigation or direct the police as to how the
investigation is to be conducted. Though there are some deviations from the
above principle in recent times, the consistent view of the superior courts is
that Magistrate shall not interfere with the investigation powers of the police
officers. In King Emperor vs. Khwaja Nazir Ahmed, the oft quoted
judgment on the role of Magistrates rendered by the Privy Council it was
observed:
The functions of the judiciary and the police are complementary, not
overlapping and the combination of individual liberty with due observance of law
and order is only to be obtained by leaving each to exercise it’s own function.

This view of the Privy Council was accepted by the Supreme Court in a
number of cases. Thus the legal position as approved by the Supreme Court is
that normally the courts do not interfere with the powers of the police during
the investigation and act as supervisors of the investigation. It is only in case of
any unnecessary harassment or grave injustice the High Courts or the
Supreme Court can pass any orders exercising the powers under writ
jurisdiction or under Section 482 of the Cr. P.C. However, there are many
stages wherein the police and the Magistrates interact in the process before the
commencement of trial. The Cr.P.C. provided for legal frame work in this regard
to ensure independence of the police agency as well as fairness in investigation.
The provisions of the Cr.P.C are interpreted by the courts to strike a balance
between the powers of the police officers and the protection of the rights of the
accused during investigation stage.
See, Section 311 A ,Cr.P.C.
41st Report of Law Commission of India, Vol.1,
P.167 Para 14.2
 AIR 1945 PC 18
 H.N. Rishbud vs. State of New Delhi, AIR
1955 SC 196, Abhinandan Jha vs. Dinesh Nima, AIR 1968 SC 117
 35

To be comprehensive, the role of Magistrates during the pre-trial stage of

criminal cases can be discussed under the following heads:
(1) Cases instituted on police report and
(2) Cases instituted otherwise than on a police report (Complaint cases).
A. Cases Instituted on Police Report:
1. Dispatch of the FIR to the Magistrate
In all the cognizable cases instituted on a police report, the
Magistrate receives the FIR and notes the accurate time and date of the receipt
of the FIR by him.This is important to find out whether there is delay in
registration or dispatch of the FIR to the court. Under section 157 of the Cr.
P.C it is the duty of the investigating officer to send the FIR to the court
immediately. The time at which the FIR is received by the Magistrate concerned
goes a long way in coming to the conclusion as to the time at which FIR may
have been written, lodged and registered. Failure to send FIR to the Magistrate
is a “breach of duty and may go to show that the investigation in the case was
not just, fair and forthright and that the prosecution case must be looked with
suspicion. Though unexplained delay in registration of the FIR is considered to
be a factor which affects the credibility of the document, delayed dispatch of
the FIR to the Magistrate is not considered so, if it could be shown that the FIR
was actually recorded without delay and the investigation started on the basis
of it. In such cases if there is no other infirmity in the case of prosecution the
delayed dispatch of the FIR alone is not considered to conclude that the
investigation is tainted. It is from the stage of the receipt of the FIR by the
Magistrate, his supervision over the investigation commences. Once the FIR is
registered it is the duty of the investigating officer to inform the Magistrate
regarding the investigation of the case by sending the reports containing the
details of the investigation, search, seizure of documents and objects, copy of
the case diary etc. The investigating officer forwards all the documents
including the case diaries along with the report under section 173 of the
Cr.P.C. but in the meanwhile for the purpose of any inquiry, any criminal court
can send for the police diaries to aid it in such inquiry.This power can be
exercised by the criminal court during the trial also, if in any case diary is not
forwarded to it by the police. Though the provisions of the Cr.P.C. do not
indicate that the Magistrate require to record the time of the receipt of the F I R
the rules of practice prescribed by the High Courts made it obligatory to record
such time .

See, Swaran Singh vs. State 1981 Cri LJ 364 (P&H), Kamaljit Singh vs. State of
Punjab 1980 Cr.LJ 542 (P&H)
 Dr.KN Chandrasekharan Pillai, R V Kelkar’s
Criminal Procedure, (2008)(Fifth edition)Eastern Book Company) at p. 137 Pala
Singh vs. vs. State of Punjab,(1972) 2 SCC 640, See,also, Gurpreet Singh vs.
State of Punjab (2005) 12 SCC 615
2. Safeguarding the Rights of the Accused on Arrest
The Cr.P.C provided for certain rights to the persons arrested by the
police. The Magistrate before whom the arrested person is produced shall be
vigilant enough to ensure that the rights of the accused are not violated by the
 36

arresting authorities. Thus every Magistrate is required to verify, by

questioning the person arrested and produced before him as to (1) whether
arrestee is produced within twenty four hours from the time of his arrest (2)
whether arrestee is harassed during the period between the arrest and
production before the court (3) whether the arrestee is informed of the grounds
and reasons for his arrest (4) whether the factum of the arrest is informed to
the relatives of the accused (5) whether there is any unnecessary restraint than
required (6) whether the arrested is in need of any medical examination etc. If
any of these rights of the arrestee are violated by the arresting authorities it is
the duty of the Magistrate to see that legal requirements in this regard are
properly complied with. It is to be mentioned here that as per section 59 of the
Cr.P.C., once a person is arrested he cannot be discharged except under a
bond or under the special order of a Magistrate. The said provision is as
follows:
59. Discharge of person apprehended:-- No person who has been arrested by a
police officer shall be discharged except on his own bond or on bail or under
the special order of a Magistrate.
The above provision though couched in negative language makes it
lawful for the Magistrates to write a special order in case he finds that there are
no grounds to proceed against him at all and even requiring a bond or surety
for his appearance is also not warranted. This provision needs to be highlighted
as the exercise of this power by the Magistrate appears to be rare, mainly
because of the negative language used in it. Except this provision there is no
other provision which empowers the Magistrate to discharge a person before
remanding the accused, when the arrest of a person is in connection with an
act which is not an offence at all. Thus the Magistrate has a vital role in
protecting the rights of the accused at the time of arrest.
Section 172 (2) Cr.P.C. reads as follows:
Any criminal court may send for the police diaries of a case under
inquiry or trial in such Court and may use such diaries, not as evidence in the
case, but to aid it in such inquiry or trial.

See, Sections 41B, 41D, 49, 50, 50A, 57 of the Cr.P.C. Article 22 of the Indian
Constitution and section 57 of the Cr.P.C.
3. Judicial or Police Custody
During the course of investigation, if any person is arrested or detained in the
police custody, the investigation is to be completed within twenty four hours
and if it could not be completed the investigating officer has to produce the
arrestee to the nearest Judicial Magistrate. Thus the persons arrested by the
police can be produced before a Judicial Magistrate whether he has power to
try the case or has not. The role of Magistrate as regards to the accused
commences at this stage. Under section 167 of the Cr.P.C. the Magistrate
authorizes the detention of arrestee, in such custody as he thinks fit.
 37

Theoretically the person arrested can be ordered to be detained in the custody

of any person as per the discretion of the Magistrate. As per section 167 (2) of
the Cr.P.C. the Magistrate can authorize the detention of the accused person
either in police custody or otherwise than in custody of police. For authorizing
the detention of the arrested persons either in the police custody or the judicial
custody or any other custody under section 167 of the code it is always
necessary that the accused is produced before the court. The object of
requiring the accused to be produced before the Magistrate is to enable the
Magistrate to decide judicially whether remand is necessary and also to enable
the accused to make any representation to the Magistrate to controvert the
grounds on which the police officer has asked for remand. The order of the
detention is not to be passed mechanically as a routine order on the request of
the police for remand. It is also to be noted that the person who has the
custody of the arrestee is responsible for the health and the safety of the
detainee and the Magistrate or the court ordering the investigation has to
monitor the conditions of the persons who are ordered to be detained. The
Magistrate has to exercise his judicial discretion while deciding whether or not
the detention of the accused in any custody is necessary. He shall scrutinize all
the papers including the entries in the case diary before authorizing the
detention of the accused in the custody and it is obligatory on his part to
record the reasons for it. Though the Cr. P.C. did not specify the persons under
whom or place where the arrestee can be detained in the custody “otherwise
than in police custody” as the practices goes, in majority of the cases it is only
the judicial custody. Thus it is necessary to understand the nature of the
judicial and police custody.
Section 167 (1) of the Cr.P.C.
 In Re, Madhu Limayae, (1969)1SCC 292. See
also, Bal Krishna vs. Emperor, AIR 1931 Lah. 99, Chadayam Makki vs. State of
Kerala, 1980 Cri. LJ 1195
 Section 55A of the Cr.P.C.
(a) Judicial Custody: Though this word is not mentioned in section 167 of the
Cr.P.C, it is being commonly used in the language of legal fraternity. The
Magistrate, on production of the accused before him orders that he be kept in
the custody and on such order the accused is kept in a jail. This is known as
judicial custody and during this period the police usually can not have any
access to the accused, except under a specific order by the court. Magistrate
can order detention of the accused in the jail for a period not exceeding fifteen
days and it can be extended from time to time, unless the accused is released
on bail. An accused can be detained in the judicial custody during the
investigation or trial. When the person so detained is sentenced to
imprisonment for a term, the period of detention undergone by him during the
investigation, inquiry or trial of the case shall be set off against the term of
imprisonment awarded to him and he shall be liable to serve the remainder of
the sentence only. It is to be noted that the judicial custody of an accused can
 38

be ordered under section 167 of the Cr.P.C. only during the course of the
investigation and such custody can be ordered under section 209(a) and (b) of
the Cr.P.C if it is before committing the case the Court of Session by the
Magistrate and under section 309 (2) of the Cr.P.C if it is during the trial. The
purpose of detention differs from one category to another.
(b) Police Custody: As it is seen, under section 167 of the Cr. P.C. the
Magistrate can order detention of the accused in such custody as he thinks fit.
Thus, the Magistrate can authorize the detention of the accused in the police
custody. Unless a person is remanded to the judicial custody, the court cannot
order the detention of the accused in the police custody. Section167(2) is
interpreted to the effect that the nature of custody can be altered from judicial
custody to police custody and vice versa during the first period of 15 days
mentioned there in. In Central Bureau of Investigation vs. Anupam J Kulkarni
the Supreme Court made it clear that police remand should not be resorted to
after 15 days and after the first remand period the court can authorize the
detention of a person only in the judicial custody. Police custody can be
ordered by any Magistrate of First Class or Chief Judicial Magistrate and in
case the Judicial Magistrate of First Class authorizes the detention in the
police custody, it is obligatory on his part to forward the copy of the order to
the Chief Judicial Magistrate as per section 167(4) of the Cr. P.C.
A study of earlier judgments on granting the police custody reveals that
the law was strongly against granting of the police custody after the arrest and
the dominant opinion was that only in rare cases after judicial evaluation of
special circumstances and that too for limited periods as the necessities of the
case may require, police custody could be granted. The enormous growth of
crime, particularly the growth of economic and financial crimes, the number of
cases in which the police custody is being sought for is on increase. The
complexity in modern day crime is another reason for such increase. The
statute does not mention the circumstances in which the court can authorize
the detention of the arrestee in the police custody and leaves it to the discretion
of the Magistrate. The discretion is to be exercised judiciously and thus the
decision depends upon the facts of the case in connection with which the
person is detained. By and large it can be said that only in case of absolute
necessity the court can order the detention of the arrestee in the police
custody. It is quite usual that whenever the police custody is ordered, the
Magistrates impose conditions. The conditions include directions not use third
degree methods, medical examination prior to and on expiry of police custody,
making legal counsel available during the investigation etc. In Dileep Kumar
Basu vs.State of West Bengalthe Supreme Court has issued guidelines as to
the rights of the accused during arrest and interrogation and these guidelines
are incorporated in the Cr.P.C. The right of the arrested person to consult a
 39

lawyer during the investigation is now statutorily recognized. The presence of

the lawyer is with an object to protect the right of the accused not to be
compelled to answer such questions, which incriminate him. In Senior Revenue
Intelligence Officer vs. Jugal Kishore Samra the Supreme Court ordered that
that “the interrogation of the respondent may be held within the sight of his
advocate or any other person duly authorized by him. The advocate or the
person authorized by the respondent may watch the proceedings from a
distance or from beyond a glass partition but he will not be within the hearing
distance and it will not be open to the respondent to have consultations with
him in course of the interrogation.” It is submitted that mere presence of the
advocate without the opportunity for being consulted will be of no use and does
not serve any purpose. Nandini Sathpathi vs. P.L. Dani is the leading case on
the presence of the lawyer for consultation during the interrogation, in order to
protect his right against self incrimination and the efficacy of the judgment as a
binding precedent is seriously doubted in the above judgment in Jugal Kishore
Samra.
(1992)3 SCC 141 For example See, Jai Singh vs. Emperor, AIR 1932 Oudh 11,
Queen Emperor vs. Engadu, ILR 11 Madras 98
 (1997)1SCC416 ,For all the
guidelines,see, paragraph 36 of the judgment. See, also Joginder Kumar vs.
State of Uttar Pradesh ( 1994 ) 4 SCC 260
4. Bail
Another important aspect of pre trial process is bail. All the persons who
are arrested in bailable cases are to be released on bail with or without sureties
as per the discretion of the court. Section 436 of the Cr. P.C., mentions that
persons other than those persons accused of a non bailable offences arrested
or detained without warrant by an officer in charge of a police station or
appears of is brought before a court and is prepared to give bail, such person
shall be released on bail, either by the police officer who detained him or by the
Magistrate before whom he is produced or appeared. It is important to notice
that the section provides for release on bail of the persons who are arrested in
cases other than non bailable offences. Thus if a person is arrested without any
offence being committed by him, then also the court can release the person
with or without sureties. In such circumstances the court can release him by a
special order under section 59 of the Cr.P.C. also. The court or police officer
can insist security for his appearance or can release him on executing a bond.
Prior to 2006, once surety is insisted by the court by an order, and the accused
is not able to furnish the surety, the court had no option to review it’s order. By
an amendment to Cr.P.C. in the year 2005 a provision was added to section
436 of the Cr.P.C. to save the situation. If a person who was granted bail under
section 436 of the Cr.P.C. on condition of furnishing the surety fails to furnish
such surety within a week from the date of arrest, he shall be considered as an
indigent person and shall be released on executing bond. This provision was
 40

added with an object that by reason of poverty, no person shall be deprived of

his liberty.
Section 437 of the Cr. P.C., controls the grant of bail to the arrested persons
accused of non bailable offences, by the Magistrates. The powers of the
Magistrate to release a person accused of non bailable offence are limited by
section 437 of the Cr. P.C. The Magistrate shall not order release of a person if
there are reasonable grounds to believe that he has committed an offence
punishable with death or imprisonment for life.
Sections 41B, 41C, 41D,50A.53A and 55A were inserted in the Cr.P.C by
Cr.P.C. (Amendment ) Act, 2005 (Act 25 of 2005 ) with effect from 23-06-
2006
 Section 41D of the Cr.P.C.
(2011)12SCC362 (1978)2SCC 424
(2011)12SCC362
a. The Magistrate shall not order release of the persons who is accused of a
cognizable offence and who was previously convicted of an offence punishable
with death or imprisonment for life or imprisonment for seven years or more.
b. Convicted on two or more occasions of the offences punishable with
imprisonment for a period of three years or more but less than seven years.
There are two exceptions to the above rules restraining the discretion of
Judicial Magistrate.
1. If the accused person is under the age of 16 years or is a woman or sick or
infirm person, the discretion to grant bail can be exercised by the Magistrate.
By Cr.P.C. (Amendment ) Act, 2005 (Act 25 of 2005) with effect from 23-06-
2006
2. If any special reasons exist the Magistrate can order release of accused who
fall in the second category.
The Court before granting bail to the persons accused of non-
bailable offences, offences punishable with death, imprisonment for life or
imprisonment for seven years or more, has to give notice to the public
prosecutor and hear his objections. The Sessions Court or High Court can
grant bail to the accused under section 439 of the Cr. P.C. A direction to grant
bail immediately after arrest which is known as anticipatory bail can be given
under 438 of the Cr. P.C. Under section 167(5) Cr. P.C., if the investigation in
cases triable by the Magistrate could not be completed within 60 days and
investigation in cases exclusively triable by the Session Court could not be
completed within 90 days the court has to release the accused on bail. This is
known as statutory bail. It is based on the policy that if enough material could
not be collected by the investigating agency within the time limit, the arrested
persons shall not suffer. The discretion to grant or refuse bail is an important
pre trial judicial function. First Schedule annexed to the Cr.P.C. contains the
information as to whether an offence is bailable or non bailable.
5. Power to order Investigation:
 41

It is primarily the responsibility of the police to investigate in to the

offences and in case of non cognizable offences police investigate in to the
offence only after obtaining the order for investigation by the Magistrate having
jurisdiction to try the case. The object of requiring the order of the Magistrate
for investigating in to non cognizable offences which are of less serious in
nature is to protect the citizens from the policing power of the State
instrumentalities on trivial reasons. The Magistrate can refuse to allow the
investigation of non cognizable cases for a number of reasons including the
protection of public interest. Section 156 (3) of the Cr.P.C authorizes the
Magistrate empowered to take cognizance under section 190 of the Cr.P.C. to
order investigation of the offences. Section 156 reads as follows:
Section 155 (2) of the Cr.P.C Section 156 : Police officer's power to investigate
cognizable cases
(1) Any officer in charge of a police station may, without the order of a
Magistrate, investigate any cognizable case which a Court having jurisdiction
over the local area within the limits of such station would have power to
inquire into or try under the provisions of Chapter XIII.
(2) No proceeding of a police officer in any such case shall 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.
(3) Any Magistrate
empowered under section 190 may order such an investigation as above-
mentioned.
Thus the Magistrate in the circumstances in which he can take
cognizance of the offence, instead of taking cognizance can order the police to
investigate in to any allegations made against any person. Thus the Magistrate
can exercise the discretion to direct the investigation in all the situations
mentioned in section 190 of the Cr.P.C. The Magistrate can order the
investigation under section 156(3) of the Cr.P.C even after submission of a
report by the investigating officer which would mean that it would be open to
the Magistrate not to accept the conclusion of the investigating officer and
direct further investigation. The only bar is that once the court takes
cognizance of the offence it cannot order further investigation under section
156 (3) of the Cr.P.C, though such an order can be passed under section 202 of
the Cr.P.C. Usually on refusal to register the case by the police the aggrieved
person approaches the Magistrate by filing a complaint before him and on such
complaint the Magistrate may direct the police to investigate in to the
allegations made there in or he can inquire in to the matter without ordering
the police to investigate into. If he decides to inquire in to the accusation by
himself the case becomes the one instituted otherwise than on a police report.
Before forwarding the case for investigation under section 156(3) of the Cr.P.C
the Magistrate has to decide that investigation by police is needed and inquiry
 42

by himself might not be sufficient.

The theory of separation of powers and the long lasting court’s practice of
non interference with the powers of the police in the investigation, the
Magistrates observe restraint in giving the directions regarding the manner in
which the investigation is to be carried out and do not monitor the
investigation. The view is that the Magistrate can order further investigation
and cannot order reinvestigation in to any case. The Supreme Court did not
approve the action of a High Court which had asked not only reinvestigation
into the matter, but also directed examination of the witnesses who had not
been cited as prosecution witnesses. The High Court furthermore directed
prosecution of the appellant and the Supreme Court opined that such a course
is unwarranted in law. However in Sakiri Vasu vs. State of U.P., the Supreme
Court has taken slightly different view and held that:
Section156(3)provides for a check by the Magistrate on the police
performing its duties under Chapter XII Cr.P.C. In cases where the Magistrate
finds that the police has not done its duty of investigating the case at all, or
has not done it satisfactorily, he can issue a direction to the police to do the
investigation properly, and can monitor the same.
In the above the Supreme Court further observed thus:
Section 156(3) Cr.P.C. is wide enough to include all such powers in a
Magistrate which are necessary for ensuring a proper investigation, and it
includes the power to order registration of an F.I.R. and of ordering a proper
investigation if the Magistrate is satisfied that a proper investigation has not
been done, or is not being done by the police. Section 156(3) Cr.P.C. is very
wide and it will include all such incidental powers as are necessary for
ensuring a proper investigation.
But, it is submitted that there are no prescribed standards to decide
whether investigation in a particular case is “proper”. The complainant in a
criminal case burning with the vengence may insist on “proper investigation”
with an intention to procrastinate the investigation. In later judgments, the
Supreme Court raised doubts regarding the ratio of the judgment in Sakiri
Vasu opining that it’s correctness is open to question.
Popular Muthiah vs. State, (2006)7SCC296 (2008)2SCC409
Whereas the ordering of investigation under section 156(3) of the Cr.P.C. can
be done only at pre cognizance stage, under section 202 of the Cr.P.C the court
can order further investigation even after taking cognizance of the offence. The
court can order the investigation under this provision after recording the
statement of the witnesses under section 200 of the Cr.P.C. In a case, decided
by the High Court of Karnataka, on a complaint referred under section 156 (3)
of the Cr.P.C. police forwarded the report of investigation and there after the
Magistrate examined the witnesses under section 200 of the Cr.P.C. Not
 43

satisfied with the material available on record the Magistrate ordered the
further investigation under section 202 of the Cr.P.C. and the order was upheld
by the court. However, such a direction for investigation cannot be issued after
issuing process for appearance of the accused.
6. Power to Stop Investigation
As per section 167 (5) of the Cr,P,C if in any case triable by a
Magistrate as a summons- case, the investigation is not concluded within a
period of six months from the date on which the accused was arrested, the
Magistrate shall make an order stopping further investigation into the offence
unless the officer making the investigation satisfies the Magistrate that for
special reasons and in the interests of justice the continuation of the
investigation beyond the period of six months is necessary. This power is
however not exercised by the Magistrates frequently and in few cases the
accused approached the High Courts for quashing the proceedings contending
that as the word used in the statute is “shall” it is to be deemed that after six
months the investigating officer cannot proceed with the investigation. In
Hussainara Khantoon and Ors. v. Home Secretary, State of Bihar the Supreme
Court speaking in the context of under-trial prisoners quoted section 167 (5) of
the Cr.P.C and opined that the Magistrate ought to pass the orders to stop
investigation in cases falling within the ambit of the section and also directed
the High Court of Patna to “look into this matter and satisfy itself whether the
Magistrates in Bihar have been complying with the provisions of Section
167(5)”. However, in State of Karnataka v. M. Raju the Apex Court took a view
that there is nothing in sub-section 5 of Section 167 of the Cr.P.C. to suggest
that if the investigation has not been completed within the period allowed by
that sub-section, the officer in charge of the police station would be absolved
from the responsibility of filing the police report under Section 173(2) of the
Cr.P.C. The apex court further held that the criminal cases which come within
the ambit of sub-section 5 of Section 167 of Cr.P.C. cannot be permitted to die
down in police stations but have to meet their fate in criminal courts one way
or the other. In Nirmal Kanti Roy vs. State of W.B. the Supreme Court
categorically opined that lapse of six months in investigation of summons cases
does not lead to automatic closure of the criminal case and “Magistrate at that
stage must look into the record of investigation to ascertain the progress of
investigation thus far reached. If substantial part of investigation was by then
over, the Magistrate should seriously ponder over the question whether it
would be conducive to the interest of justice to stop further investigation and
discharge the accused.” The legal position under section 167 (5) of the Cr.P.C.
is that the Magistrate need not order stopping of investigation in all summons
cases in which the investigation could not be completed within six months and
when no order is passed it does not amount to automatic culminations of
 44

criminal proceedings in such cases. Though the word shall is employed in the
statute the Magistrate can take an independent decision assessing the facts of
the case, public interest, progress of the investigation etc. and either pass an
order stopping the investigation or allow the investigating officer to continue
with the investigation. Even if no order is passed it does not result in automatic
culmination of the proceedings. The power however can be exercised by the
Magistrates to order stopping of the investigation when the law enforcing
agency could not proceed with the investigation and continuation of the
criminal court proceedings is causing hardship to the litigants leading to
injustice.
Nirmal Singh Kahlon Vs. State of Punjab (2009)1 SCC 441

Kishan Lal Vs. Dharmendra Bafna (2009)7SCC685 (2008)2SCC409

Bharathiben Verma vs. N G Lokanath, 1998 Cr.LJ 17 (Karnataka) Randhir
Singh Rana vs. State (Delhi Administration) (1997) 1 SCC 361 (1980)1SCC93
Order in Crl. Appeal No. 194 of 1991 dated 25.08.1994 37
(1998) 4 SCC 590, See also, State of West Bengal Vs. Makhanlal Chakraborty
JT2002(Suppl1)SC573 State of W.B. v. Falguni Dutta ( 1993 ) 3 SCC 288
7. Acts in aid of the Investigation:
The Cr.P.C. provides for healthy and genuine cooperation between
the investigating agencies and the courts. Though the investigation is the task
of the police, during the collection of the evidence the investigating officers
need the assistance of the court and the credibility of certain type of evidence
increases when procured through the medium of the court. Therefore the
statute envisions few important functions to be undertaken by the Magistrates
which eventually may support the case of prosecution. Role of Magistrates in
performing such acts is in the nature of aiding the investigating agency. At the
same time it is to be done without developing any bias in favour of the case of
the prosecution. The following are such acts of the Magistrates which help the
investigating officers to build of the case of the prosecution and it is also to be
noted that in this process fairness is ensured by the Magistrates in the process
of procuring the evidence.
(a) Recording of Confessions and Statements: Section 164 of the Cr.P.C
authorizes the Magistrate to record confessions of the accused and the
statements of the witnesses. Any Magistrate or Metropolitan Magistrate can
record them. Since the confession of the accused is considered to be a vital
piece of evidence against the maker, a number of rules are prescribed for
recording of the confessions of the accused. The Magistrate recording the
confession shall be satisfied that the confession is being made by the accused
voluntarily and without any inducement or coercion. If the Magistrate finds
that the confession is not being made voluntarily he need not record the
 45

confession. Law also provides that the Magistrate who is recording confession
shall inform the accused that he is not bound to make any confession and in
case if he chooses to make confession that will be used as evidence against
him. Furnishing of this information is mandatory to make the confession a
valid piece of evidence. The Magistrate who records the confession shall
prepare a memorandum to be appended to the confession recorded by him,
incorporating his satisfaction regarding voluntariness of the accused in making
the confession and that he has informed the accused about using the
confession against him as evidence. While recording the confession the
Magistrate takes care that no police officer is present in the court. The
confession is to be recorded as per the procedure for recording the statement of
the accused mentioned in section 281 of the Cr.P.C. In practice it is always the
police who file the application before the Chief Judicial Magistrate for recording
the confession by a Judicial Magistrate and the Chief Judicial Magistrate
makes over the application to the Judicial Magistrate who has no jurisdiction
to try the case in which the confession of the accused is to be recorded.
Similarly the Magistrate records the statement of the witnesses under section.
Oath is also administered to the witness making a statement under section 164
of the Cr.P.C and it shall not be administered to the accused making the
confession. The statement of the witness is to be recorded in the manner the
evidence of a witness is to be recorded.
(b) Inquiry in cases of deaths and rapes during the custody and disappearances
from the custody
By amendment to the Cr.P.C, Section 176 (1A) was added to the
statute according to which, in the cases of custodial death or custodial rape or
disappearance of a person from custody, Judicial Magistrate of First Class or
Metropolitan Magistrate, as the case may be, in whose territorial jurisdiction
the offence is committed has to hold an inquiry in to the incident The inquiry
by the Magistrate is in addition to the investigation made by the police and the
report of the Magistrate regarding the incident can be used as evidence. The
object behind entrusting the task is to save the investigation from the
institutional bias of the investigating officers and to see that no opportunity
can be taken by anyone to destroy the evidence in such cases. No specific
method is prescribed for the inquiry in to such incidents. The Magistrate is
required to record the evidence in any manner prescribed in the Cr.P.C.
“according to the circumstances of the case.” A full Bench of Andhra Pradesh
High Court held that the inquiry under section 176 (1A) is in addition to the
investigation by the police and not a substitute to it and the police are not
absolved from the duty of investigating the offences of such nature.
By Cr.P.C. (Amendment ) Act, 2005 (Act 25 of 2005 ) with effect from 23-06-
2006
 A.P. Civil Liberties Committee (APCLC) rep. by its President, Mr. S.
 46

Subhash Chandra Bose vs. Government of A.P. rep by its Principal Secretary,
Home Department, 2009(1)ALT754
Recently in Tmt.R.Kasturi vs. State Justice Nagamuthu of Madras
High Court elaborately dealt with the nature of inquiry under section 176 (1A)
of the Cr.P.C. and reached the conclusion that this Inquiry is on par with the
other functions of the magistrates such as recording of the dying declarations,
and confessions conducting test identification parades etc.
(c) Power to order persons to furnish the specimen signature or hand writing:
During the course of investigation, particularly in cases involving
the documents or documentary evidence the prosecution may be required to
prove that certain hand writing or signature is written by a particular person
and in this connection they require to collect the specimen signatures and
hand writing of the persons who is suspected to have authored the document
or signature in question and get it analysed by scientific experts. Till the year
2006, the police used to collect the specimen signatures and hand writings in
the presence of panch witnesses and in the majority of the cases though
scientific evidence is obtained, in cases where the panch witnesses do not
support the case of prosecution, it has been becoming difficult to prove that the
specimens are of the persons who wrote or did not write the disputed content.
To avoid this difficulty section 311 A is added in the Cr.P.C. which reads as
follows:
311A. Power of Magistrate to order person to give specimen signatures or
handwriting.--If a Magistrate of the first class is satisfied that, for the purposes
of any investigation or proceeding under this Code, it is expedient to direct any
person, including an accused person, to give specimen signatures or
handwriting, he may make an order to that effect and in that case the person
to whom the order relates shall be produced or shall attend at the time and
place specified in such order and shall give his specimen signatures or
handwriting:
Provided that no order shall be made under this section unless the
person has at some time been arrested in connection with such investigation or
proceeding."
The provision lacks clarity as it authorises the Magistrate to order any
person to furnish the specimen signatures and hand writings and clamps the
power with a proviso that such order can be issued only in respect of the
persons who were arrested at any point of time in the course of the
investigation of the case. The rationale for the proviso is not clear and it
substantially hampers the power of the Magistrates. The police officers need to
arrest a person if his signature and hand writings are to be analysed by the
scientific experts though such arrest is otherwise unnecessary. Still this
provision is of great help to the police investigating serious economic crimes
 47

and the cases in which documentary evidence is of great help in proving the
scientific evidence relating to the disputed hand writing and signatures.
Crl.O.P.No.20008 of 2013 and M.P.No.1 of 2013 dated 19.12.2014 (accessible
on the web site of Madras High Court)
(d) Recording of Dying Declarations and Conducting of the Identification
Parades:
Though this practice is not uniform throughout the country in
some of the States it is the Judicial Magistrates who record dying declarations,
conduct test identification of suspects and property. In few States it is the
Executive Magistrates who discharge these duties. When the proceedings are
done by the Judicial Magistrates more value and credibility are attached. There
is no provision in this regard in the Cr.P.C. The Criminal Rules of Practice and
Circular Orders framed by various High Courts make it obligatory for the
judges to record dying declarations on receipt of the requisition from the
medical officers and conduct test identification parade on requisition of the
police officers.
(e) Sending samples to the Forensic Science experts:
Those who are familiar with court procedures can understand the
value of sending the disputed documents, material objects and samples
collected during the investigation to the forensic science experts through the
courts. Though there is no provision in the Cr.P.C which makes it mandatory
to send the samples through the courts in many cases the police prefer to send
the samples through the Magistrates and in such cases the report of the expert
is directly received by the court. This measure also makes the evidence
procured from the experts easily proved and reliable. In certain cases where it
is necessary to order the DNA test and the other scientific tests the Magistrate
can pass orders to the effect. The Magistrate whenever necessary can order for
the examination of any person by a medical officer.
8.Taking Cognizance of an offence
One concept which has been subject matter of confusion despite
several judgments clarifying it is, taking Cognizance. The term is not defined in
the Cr.P.C though it has been used in several contexts. The courts have been
exploring the meaning of this term from time to time. The word “cognizance”
has no esoteric or mystic significance in criminal Law or procedure. Taking
cognizance does not involve any formal action, or indeed action of any kind,
but occurs, as soon as a Magistrate, as such applies his mind to the suspected
commission of an offence for the purpose of proceeding to take subsequent
steps towards inquiry or trial. There may be circumstances where the
Magistrate applies his mind to the facts placed before him, not with an
intention to proceed with any kind of inquiry or trial and in such
circumstances it cannot be said that he has taken cognizance of the offence.
 48

Such circumstances include examination of a complaint for referring a case to

the police for investigation under section 156(3) of the Cr.P.C., issuing orders
for search of any premises etc.
There are ten sections in the Cr.P.C which deal with the subject of
taking cognizance. While sections 190 to 194 deal with taking cognizance of
offences by the different courts in Dr.KN Chandrasekharan Pillai, R V Kelkar’s
Criminal Procedure, (2008)(Fifth edition)Eastern Book Company) at p. 217
different situations , sections 195 to 199 deal with bar on taking cognizance of
certain offences except under certain circumstances. Section 190 of the Cr.P.C
describes the three modes in which a magistrate can take cognizance of the
offence. It can be either (1) on receiving a complaint of facts which constitute
such offence or (2) on police report as defined under section 2 ( r ) of the
Cr.P.C, or (3) upon any information from any person other than a police officer,
or upon his knowledge, that such an offence has been committed. Section 192
of the Cr.P.C. provides for taking of cognizance of the offences by the Chief
Judicial Magistrate. The statute enables the Chief Judicial Magistrate either to
try the case by himself or transfer it to any other Magistrate competent to try
the case. The Cr.P.C vested the Chief Judicial Magistrate with the power of
transfer the cases which cannot be done by the Magistrate of First Class.
Section 193 of the Cr.P.C. provides that except as otherwise provided by the
Code (Cr.P.C.) or any other law, no Court of Session shall take cognizance of an
offence as a court of original jurisdiction unless the case is committed to it by a
Magistrate under the Code. Thus the Sessions Court can take cognizance of an
offence only when the case is committed to it by a Magistrate. An interesting
question came before the Constitutional Bench in Dharam Pal vs. State of
Haryana, as to whether the Magistrate takes cognizance of the offence before
committing the case to the Court of Session. The Supreme Court opined that
since the cognizance of the offence can be taken only once the Magistrate does
not take cognizance and on committal of the case the Sessions Court takes
cognizance of the offence. It is submitted that this view is not clear as the
Magistrate committing the case also applies judicial mind with an intention to
proceed legally against the accused and the view of the Constitutional Bench
needs reconsideration by the Supreme Court. However the courts which are
conferred with the power of original criminal jurisdiction can take cognizance
without the case being committed to it by Magistrate. There are some special
laws which confer such jurisdiction on such courts which though are Sessions
Courts, can directly take cognizance of the offences. The Special Judges
appointed under section 3 of the Prevention of Corruption Act, 1988 can be
cited as an example of a Sessions Court on which the law conferred the original
jurisdiction.
(2014)3 SCC 306
 49

Sections 195 to 199 are exceptions to the general rule and they
impose conditions on taking cognizance of certain offences by the court. It is
only on fulfilling some conditions the court can take cognizance of the offences.
For example, under section 195(1) of the Cr.P.C. no court can take cognizance
of the offences punishable under sections 172 to 188 of the Indian Penal Code,
1860 except on a written complaint by the court. It is only after taking
cognizance of the offence the court decides whether process (summonses or
warrants) can issue to the accused under section 204 of the Cr.P.C.
9. Supplying the Copies of police Report and other documents
When the accused appears before the court the accused or when
the accused is brought before the court on issuance of process the first duty of
the Magistrate is to furnish the copies of all the documents relied upon by the
prosecution as contemplated under section 207 of the Cr.P.C in cases
instituted on police report or section 208 of the Cr.P.C. in cases instituted
otherwise than on police report. The Magistrate shall be careful in furnishing
all the documents to the accused which is very important function if the court
has to enhance fair trial of the accused. In all case instituted on police report
the court has to furnish the copies of the FIR, charge sheet/challan,
statements recorded by the police during the investigation under section 161(3)
of the Cr.P.C., confessions and statements recorded by the Magistrate under
section 164 of the Cr.P.C. and all the relevant documents on which the
prosecution is relying on to prove the accusation against the accused. However,
if the documents are voluminous, the court instead of furnishing the copy,
direct that the accused or his pleader can inspect the document. The police
officer filing the challan can request the court no to furnish certain portions of
the statements recorded by the investigating officers, to the police. If the
Magistrate is satisfied that the request is genuine he can direct that the
portions in respect of which such a request is made are to be excluded from the
copies of the documents that are to be furnished to the accused. Section 208 of
the Cr.P.C describes the copies of such documents which are to be furnished to
the accused in cases instituted otherwise than on a police report and which are
exclusively triable by the Court of Sessions. The court under this provision has
to furnish the copies of the statements recorded under section 200 or 202 of
the Cr.P.C., statements or confessions if any recorded under sections 161 and
164 of the Cr.P.C. and other relevant documents. Interestingly there is no
provision in the Cr.P.C. which obligates the Magistrate to furnish the copies of
the documents instituted otherwise than on a police report and which are not
triable by the Court of Sessions.
Though it is provided that the copies are to be furnished by the
Magistrate, the statute did not mention as to who has to file the copies. In
some of the States, the High Courts have established a separate section in
 50

every criminal court to copy the documents while in some other States the
police are filing the copies along with the charge sheet/challan. It is submitted
that uniformity in this process by choosing the best practice is needed.
10. Committing the cases to the Court of Sessions
Under the Cr.P.C. the courts of Magistrates and Sessions Courts
function as trial courts, First Schedule annexed to the Cr.P.C. mentions
whether a particular offence is triable by the Magistrate or the Court of
Sessions. If the offence is exclusively triable by the Court of Sessions, the
Magistrate has to commit the case to the Court of Sessions under section 209
of the Cr.P.C The Magistrate has to ensure whether section 207 of the Cr.P.C is
to be complied with and notify the Public Prosecutor of the court to which the
case is to be committed. The Magistrate committing the case is under an
obligation to send the record of the case and the material objects to the Court
of Sessions. Before the commencement of the Code of Criminal Procedure,
1973, the previous Code prescribed elaborate procedure for an Inquiry before
committing the case the Court of Sessions, the procedure which was dispensed
under the present Code. The Magistrate at any stage of Inquiry or trial can
commit the case to the Court of Session though initially it was considered as
the case triable by the Magistrate and later it appears to him that it ought to be
tried by the Court of Session.
B.Cases instituted otherwise than on a Police report
The Magistrate can take cognizance of the offences otherwise than on a
police report and in such cases the court has to examine the Complainant and
his witnesses and he has to record the substance of such examination in
writing. The complaint made to the Magistrate need not be in writing. However,
if the complaint is made in writing by a public servant acting or purporting to
act in the discharge of public duties or when any court has made the
complaint, the magistrate need not examine the complainant or the witnesses
of the complainant. If the complaint is made to the Magistrate who is not
competent to take cognizance he has to return the complaint to be presented in
proper court and if the complaint is not in writing the magistrate has to direct
the complainant to the court competent to entertain the complainant. The
magistrate has to issue the process if he is of the opinion that the court can
proceed against the accused and he can even direct further investigation by the
police. Once the process is issued the court has to follow the procedure for trial
of the cases instituted otherwise on a police report.
Summary
The courts have been playing an important role in pre-trial process
and have been acting as the guardians of the rights of the accused during the
period. The rights of the accused at the time of arrest are protected by the
Magistrates who act as supervisors of the investigation. Apart from it the
 51

Magistrate performs certain duties like recording of the confessions of the

accused, procuring the specimen signatures and hand writings for comparing
with the disputed signatures and hand writings, conducting of the test
identification parades of the suspects and property etc. While performing such
functions also the Magistrate ensures the fairness in the investigation.
 52

Paper Presented by

Smt. M.Satya Kumari,

Junior Civil Judge,
Kaikaluru.
Introduction: One of the duties of the police officer is to investigate the case
properly and thoroughly and collect all evidence whether for or against the
suspect. Protection of the society being the first responsibility of the police and
the law, procedures and police practices must be such as to ensure that the
guilty person will be convicted for his crime and innocent will never be
harassed. The concept of reasonable and fair trail would be one in which the
accused as well as the victim or the aggreived person gets justice. The
parameters governing the process of investigation of a criminal charge; the
duties of the investigating agency and the role of the courts after the process of
investigation are exhaustively laid down in different Chapters of the Code of
Criminal Procedure, 1973. Though the power of the investigating agency is
large and expansive and the courts have a minimum role in this regard, there
are inbuilt provisions in the code to ensure that investigation of a criminal
offence is conducted keeping in mind the rights of an accused to a fair process
of investigation. In chronological order, the role of magistrate in investigation
can be understood in terms of the following five stages:

1. Soon after recieving report by police or Court

2. In cases where the arrest is effected by the investigating officer, on his

production before the court and while deciding the question of validity of arrest
and need for further custody.

3. Magisterial interventions while deciding misc.applications for recording of

statements under section 164 of Cr.P.C., test identification parades, etc.

4. Monitoring of investigation.

5. Further investigation.

1. SOON AFTER RECEIPT OF REPORT BY POLICE OR COURTS:

In criminal cases, administration of justice commences with the reciept
of information regarding commission of an offence. If it is a case of cognizable
offence, the case will be registered by the police. If it is a case of non-
congnizable offence, the information shall be sent to the court having
jurisdiction by the police and after obtaining permission from the court the
case will be registered. Therefore, it can be said that in the cases involoving
non-congnizable offence, the role of courts commences even before the stage of
registration of a case. Section 154 Cr.P.C deals with mode of investigation in
cognizable cases, and section 155 deals with mode of investigation in non-
cognizable offences. These two sections will be applicable when a person gives a
report to the police directly. But as per section 199 and 200 Cr.P.C., a
 53

Magistrate can forward the complaint to the police concerned under section
156(3) Cr.P.C., for investigation and registration of the case and the Magistrate
can record the statement of the complainant and his witnesses and take
cognizance of the offence. Section 157 mandates sending of a report to this
effect to the area magistrate forthwith, to bring the matter to his scrutiny. This
is a safeguard meant to prevent police excess, embellishments, false
prosecutions and non-investigation at a crucial stage.
2. PRODUCTION OF ACCUSED BEFORE THE COURT FOR THE FIRST
TIME:

Arrest leads to deprivation of liberty and therefore has great ramification

for the person arrested. Any denial of personal liberty has to be through a due
process. A process that is non arbitrary, just, fair and reasonable. No arrest
shall be made merely because it is lawful for the police officers to do so and
each arrest has to be justified on ground of its imperative need and reasons are
to be recoded in writing by the police officer effecting the arrest. According to
the latest amendments in the Cr.P.C where the case relates to an offence
punishable with imprisonment of 7 years or less, arrest can be made by the
police only on satisfaction recorded in writing to the effect that the arrest is
imperative for prevention of further offences, proper investigation of the offence,
prevention of tampering or disappearance of evidence, prevention of any undue
influence/ threat to the complainant or witnesses ensuring his presence in the
court. The sufficiency of reasons for arrest recorded by the police officer is to be
examined by magistrates and not to be accepted at the mere ipse dixit of the
police. After examining the validity of arrest, the next point of inquiry is
whether there are grounds to keep the accused in detention or whether he can
be released on bail, or otherwise discharged. In Arnesh Kumar Vs State of
Bihar Honourable Apex Court has ruled that decision to detain and remand is
not a mechanical act and a remand order has to be a reasoned order and
should reflect due application of mind. Mere mechanical reproduction of above
elements in remand application is also to be deprecated. These conditions have
to be justified in the factual matrix of each case.

3. MAGISTERIAL INTERVENTIONS WHILE DECIDING APPLICATIONS FOR

RECORDING OF STATEMENT UNDER SECTION 164 CR.PC.

Recording statements of the witnesses is a vital part of the investigation.

This not only allows an investigator to come to a finding but also captures the
testimony of the witness, when the same is still fresh and unsullied. Section
164 Cr.P.C. allows recording of statement of witness and confession of accused
by the magistrate. The statement of witness under this section is recorded on
oath. The underlying object is to preserve evidence, get an account of the
testimony of the witness at the first instance and to prevent retraction of
 54

testimony at a later stage. Another upside of a statement recorded under

section 164 Cr.P.C is that the same can be used for corroboration of witness’s
testimony at trail, thereby strengthening the varacity of prosecution case.
4. MONITORING OF INVESTIGATION:
The exact import of word ‘monitoring of investigation’ is too
circumstantial to be put in a strait jacket. Placing a narrow interpretation on
the phrase will render it sterile. The phrase, therefore, ought to receive a social
context or liberal interpretation. Illustrative cases, where the power to pass
necessary directions may be used are : to protect witnesses, check disregard of
vital evidence(which may get obliterated in course of time), non-examination of
witnesses, deliberate shielding of some accused, or the investigating officer
being interested in the case. In such cases, a magistrate ought to push the
envelope and actively monitor the investigation. In Sakiri Vasu and State of
U.P and others Appeal (crl.) 1685 of 2007 the Hon’ble Apex Court held that
such power has been read within section 156(3) of the Cr.P.C. It has been held
that the power to direct investigation is wide enough to include all such powers
in a Magistrate which are necessary directions to the police and supervision of
investigation. The magistrate is empowered to monitor the investigation with a
view to ensure that it is free and fair.

5. FURTHER INVESTIGATION AFTER FILING OF POLICE REPORT:

To conduct fair, proper and an unquestionable investigation is the

obligation of the investigation agency and the court in its supervisory capacity
is required to ensure the same. Having said that further investigation is to be
distinguished from re-investigation or a de-novo investigation which is not
permissible. In cases where vital evidence has been disregarded by the police,
the court can order further investigation into that aspect. The result of further
investigation is called as supplementary report and can supplement the
primary police report, already on record. The earlier investigation is not wiped-
off from the record and the subsequent investigation only supplements the
earlier investigation. The magistrate cannot order further investigation by a
different agency other than the original investigating agency either, as that will
amount to re-investigation.

6. SCOPE AND RELEVANCE OF STATEMENTS RECORDED UNDER

SECTION 161 AND 164 CR.P.C
Any police officer making an investigation under section 161 Cr.p.c or
any police officer not below such rank as the State Government may by general
or special order, prescribe in this behalf, acting on the requisition of such
officer, may examine orally any person supposed to be acquainted with the
facts and circumstances of the case. Such person shall be bound to answers
truly all questions relating to such case put to him by such officer other than
 55

question the answers to which would have a tendency to expose him to a

criminal charge or to a penalty or forfeiture. The police officer may reduce into
writing any statement made to him in the course of an examination under this
section and if he does so he shall make a separate and true record of the
statement he record. Provided that, statement made under this subsection may
also be recorded by audio-video electronic means. Provided further that the
statement of a woman against whom an offence under section 354, section
354A, section 354B, section 354C, section 354D, section 376, section 376A,
section 376B, section 376C, section376D, section 376E or section 509 of The
Indian Penal Code is alleged to have been committed or attempted, shall be
recorded, by a woman police officer or any woman officer. As per section 164(1)
of the code, the judicial magistrate or metropolitan magistrate whether or not
having jurisdiction in the case can record any statement or confession made to
him in the course of investigation. Section 164(5) of the code empower the
judicial magistrate to record statement other than the confession which is in
the opinion of the magistrate a best fitted to the circumstances of the case. The
magistrate is also empowered to administer the oath to the person making
such statement. The object of recording of statements of witnesses under
section 164 of the code is to deter witness from changing their versions
subsequently and to get over the immunity from the prosecution in regard to
information given by the witnesses under section 162 of the code. The another
reason is to minimize the chances of changing the versions by the witnesses at
the trail under the fear of being involved in perjury. The statement recorded
under section 164 of the code is not substantive piece of evidence but
corrborative, the same can be used with reference to section 145 of Evidence
Act. A specific duty is casted upon the magistrate to record statement of child
witnesses and witnesses under Protection of Children From Sexual Offences
Act, 2012 for ensuring friendly atmosphere. So also at the time of recording of
evidence of child witness, presence of parents of the child or any person in
whom child has trust or confidence is permitted. The magistrate can seek the
assistance of translator, interpretor or special educator which is necessary for
the same. The magistrate has been given discretion to record statement of the
witnesses either sponsored by investigating agency or the witnesses directly
before the court for recording such statement.
CONCLUSION
It is apparent that ample powers are vested in the magistrate to check
arbitrary arrests, police excesses and to facilitate a more incisive probe into the
discovery of truth, at various stages of an investigation, and even after filing of
the police report. Never should a judge find himself in a situation where he has
to make a grudging confession of acquitting a known culprit due to lack of
evidence or investigative lapses.
 56

Paper Presented by
Smt. Anjani Priya Darshini,
Prl. Junior Civil Judge,
Jaggaiahpet.

Investigation:
An Investigation is an enquiry into the process and circumstances
surrounding an allegation or incident. Loss/fraud investigations are allegations
of impropriety resulting in a loss. These investigations are conducted to
determine the extent of the fraud, the amount of loss, what control weaknesses
existed and will recommend any corrective action.
Types of Investigation:
There are several types of investigations that become the part of the
investigator routine and are in the investigation procedure. Some of them are
as follows-:
Criminal Investigation-: Private Investigators work either for victim or for
defendant or his attorney in criminal proceedings. Serious crimes, which may
lead to arrest and conviction of a subject, are the source of cases for the
legal/investigator.
Civil Investigation-: This belongs to anything involving law suits in which
question of money or property must be settled. Violations of the law are
normally not included. Divorce, bankruptcy, personal injury, negligence cases,
and cases of various types are examples of civil cases that may request
investigation.
Negligence Investigation-: This type of investigation is conducted either for
the plaintiff’s attorney to prove liability or for the defendant's company
or business to prove the absence of liability or absence of a permanent serious
injury. This can be accomplished through the use of surveillance (often video or
photo), locating and interviewing witnesses, or trying to establish that a pre-
existing condition caused or was aggravated by the injury or that the defendant
was at fault. A modest investigative fee often saves a client from a large
monetary award.
Corporate Investigation-: An investigator may monitor what is going on in a
business, investigate fraud within or outside the company, and provide
diligence investigations or pre-employment screening.
General Investigation-: This category includes great variety of investigative
activities. This included location of witnesses, missing persons, dishonest
employees and fraud e.t.c.,
Criminal Investigation is an applied science that involves the study of facts,
used to identify, locate and prove the guilt of a criminal. A complete criminal
investigation can include searching, interviews, interrogations, evidence
collection and preservation and various methods of investigation. Modern day
 57

criminal investigations commonly employ many modern scientific techniques

known collectively as forensic science.
In order to study about the criminal investigation, we need to understand the
term ‘investigation’, “Investigation means to examine, study, or inquire into
systematically, search or examine into the particulars of; examine in detail, or,
to search out and examine the particulars of in an attempt to learn the facts
about something hidden, unique, or complex, esp. in an attempt to find a
motive, cause, it is about finding things.”
Importance of Investigation:
Investigation being the formal procedure of discovering of the facts and figures
of the crime in hand is essentially important to find out what exactly
constituted the crime. It covers up the whole process from the work of
investigator to that of forensic expert.
Investigation includes many things some what is Investigation
“Investigation" includes search for material and facts in order to find out
whether or not an offence has been committed by the accused or not. It
includes all the proceedings under the Code of Criminal Procedure for the
collection of evidence by the police officer or any person who is authorized by
the magistrate.
Investigation includes many things some them are as such :
 on the spot working of the investigating staff.
 analyzing the evidences and circumstances of the crime spot.
 arrest of the offender or the prime suspect of the crime.
Judicial Approach on Faulty Investigation
o There has been a shift in the approach adopted by the courts in cases of
faulty investigation or defective investigation. The Supreme Court has in
various cases held that cases where faulty investigation is evident, it is
required that they be dealt with sensitivity. As per the Supreme Court
now, evidence is required to be appreciated having regard to the
background of the entire case and not in isolation. The ground realities
are to be kept in view. Thus it should also be kept in mind that every
defective investigation does not lead to acquittal. In defective
investigation, the only requirement is of extra caution by the courts while
evaluating evidence.
o Moreover, defective investigation cannot be considered a cause
disapproving the important evidence. The Apex Court also stated in
serious cases such as murder, a defective investigation itself cannot be a
ground for acquittal. The same approach has also been adopted by the
court in cases where investigation was not fool-proof.
o The Court in the famous case of Zahira Habibullah Sheikh v. State of
Gujarat stated the point that if “primacy is given to designed or
 58

negligent investigation, to the omission or lapses by the perfunctory

investigation or omissions, the faith and the confidence of the people
would be shaken not only in the law enforcing agency but also the
administration of justice"
o Thus, in the cases of a defective investigation, the court has to be
circumspect in evaluating the evidence and may have to adopt an active
and analytical role to ensure that truth is found by having recourse to
Sec. 311 of Cr.P.C or at a later stage also restoring to Sec. 391 of
Cr.P.C instead of giving baseless decisions.
Role of Courts in Investigation Process:-
Investigation in respect of offences under the Indian Penal Code should be in
accordance with the provisions of the Code of Criminal Procedure. Chapter 12
deals with the commencement of investigation and the steps required to be
taken when information is received by the police. The main and prior objective
of every investigation is to collect all the relevant material by the police in
respect to commission of offences and on completion of investigation.
Receipts of F.I.R:-
Magistrates and Judges receiving F.I. R s shall initial each page and put the
date stamp and time of receipt. The name or number of the messenger shall
also be noted. If the F.I.R is received by the post, the envelope shall also be
initialed and preserved.
The same Rule applies to Inquest Reports and other documents received from
the Police or other Prosecuting agencies.
Magistrate to insist on production of the accused and copies of
Documents:-
No order under Section 167 of the code for remand of the accused should be
made unless the accused is produced before the Magistrate and he has been
heard. Magistrates shall also insist on the production of copies of the entries in
the Case Diary, peruse and initial those documents before passing orders and
also indicate in the order, that the documents are perused.
Remand to police custody:-
A Magistrate shall not grant remand to policy custody, unless he is satisfied
that there is good ground for doing so and shall not accept a general statement
made by the investigating or other Police Officer to the effect that the accused
may be able to give further information. In all cases, where the Magistrate
authorizes the detention of the accused in the custody of the Police, he shall
record his reasons for so doing.
Order of remand by a Magistrate to be forwarded to sessions Judge:-
Whenever a Magistrate remands an accused person to the custody of police
under Section 167 of the Code, a copy of the order of remand with the reasons
recorded therefore, shall be forwarded within 24 hours to the Sessions Judge.
 59

Computing Period of Remand:-

Whenever a Magistrate remands an accused person to the custody of police
under Section 167 of the Code, a copy of the order of remand with the reasons
recorded therefore, shall be forwarded within 24 hours to the Sessions Judge.
In computing the period of fifteen days mentioned in Sub-section (2) of Section
167, or the proviso to Sec. 309 of the code, both the day on which the remand
order was made and the day on which the accused is ordered to be produced
before the Court shall be included.
The period of detention as prescribed in the proviso to sub-section (2) of
Section 167 of the Code or any period of detention prescribed by any other Law
shall be computed from the date of actual production of the accused before the
Magistrate or the Judge, as the case may be.
Remand under Section 390 of the Code:-
When an accused person is brought before a Subordinate Court under Section
390 of the Code, the Court shall explain fully to him his right to the assistance
of an Advocate at State Cost and the procedure of hearing of appeals by the
High Court. If the accused is remanded to custody, the Court shall forthwith
report the action taken to the High Court and if the Warrant issued by the High
Court is a Bailable Warrant, also state its reasons for remand and shall
forward a copy of the said Report to the Collector who will communicate with
the Public Prosecutor, Andhra Pradesh.
Bail during investigation:-
When an accused is released on bail during investigation, he shall be bound
over to appear in Court after the charge sheet is filed and summons served on
him. It is not necessary to bind him to appear on any earlier date or dates.
Requisitions for confession etc:-
All requisitions for recording of confession of the accused or statements of
witnesses or for holding identification parades shall be made to such
Magistrate as is nominated by the Sessions Judge for particular police station.
On receipt of such requisition, the Magistrate shall immediately fix a date for
the purpose and issue summons to the witnesses.
Statement of witnesses and confession of accused shall be recorded in open
court and during Court hours except for reasons to be recorded in writing. No
police Officer should be allowed to be present in the Court Hall or in visible
distance from the witnesses or the accused, while the statement of confession
is being recorded.
Confessions:-
 No confession shall be recorded unless;
 the Magistrate has explained to the accused that he is under no
obligation at all to answer any question and that he is free to speak or
refrain from speaking as he pleases; and
 60

 The Magistrate has warned the accused person that it is not intended to
make him an approver and that anything said by him will be taken down
and there after be used against him.
 Before recording a statement, the Magistrate shall question the accused
in order to ascertain the exact circumstances in which his confession is
made and the extent to which the Police have has relations with the
accused before the confession is made.
 The Magistrate may usefully put the following questions to the accused:-
 When did the police first question you?
 How often were you questioned by the Police?
 Were you detained anywhere by the Police before you were taken formally
into custody, and if so, in what circumstances?
 Were you urged by the police to make a confession?
 Have the statement you are going to make been induced by any ill-
treatment? And if so, by Whom?
 Do you understand that the statement which you are about to make may
be used against you at your trial?
 These questions and any others which may suggest themselves and the
answers to them shall be recorded by the Magistrate before the records
the accused’s statement and shall be appended to the Memorandum
prescribed by Sec. 164(3) of the Code of Criminal Procedure. The
Magistrate shall add to the Memorandum a statement in his own hand of
the grounds on which he believes that the confession is voluntary and
shall note the precautions which he took to remove the accused from the
influence of the police and the time given to the accused for reflection.

If the Magistrate has any doubt whether the accused is going to speak
voluntarily, he may, if he thinks fit, remand him to a sub-Jail, before recording
the statement; and ordinarily the accused shall be withdrawn from the custody
of the Police for 24 hour before his statement is recorded. When it is no
possible or expedient to allow so long a time as 24 hours, the Magistrate shall
allow the accused atleast a few hours for reflection.
The statement of the accused shall not be recorded, not shall the
warning prescribed in paragraph 1 of this Rule be given nor shall the questions
prescribed in paragraph(2) of the Rule be asked in the presence of a co-accused
or of the police officers who have arrested him or produced him before the
Magistrate or who have investigated the case.
Dying declaration:-
While recording a Dying Declaration, the Magistrate shall keep in view the fact
that the object of such declaration is to get from the declarant the cause of
death or the circumstances of the transaction which resulted in death.
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Before taking down the declaration, the Magistrate shall disclose his identify
and also ask the declarant whether he is mentally capable of making a
declaration. He should also put simple questions to elicit answer from the
declarant with a view to knowing his state of mind and should record the
questions and answers signs and gestures together with his own conclusion in
the matter. He should also obtain whenever possible a certificate from the
Medical Officer as to the mental condition of the declarant.
The declaration should be taken down in the words of the
declarant as for as possible. The Magistrate should try to obtain from the
declarant particulars necessary for identification of the accused. Every
question put to the declarant and every answer or sign or gesture made by him
in reply shall be recorded.
After the statement is recorded, it shall be read over to the declarant and his
signature obtained thereon, if possible, and then the Magistrate shall sign the
statement.
Identification Parades:-
In conducting identification parades of suspects, the Magistrate shall observe
the following Rules.
Wherever possible privacy shall be secured for the parade away from Public
View, and all unauthorized persons should be strictly excluded from the place;
If Jail Officials are presented at Parade, they shall be Kept in the view of the
Magistrate all the time and they shall not be allowed access either to the
witnesses who have to be summoned for identification or to the persons
assembled at the parade.
(2) (a) As far as possible, non suspects selected for the parades shall be of
the same age, height, general appearance and position in life as that of the
accused. Where a suspect wears any conspicuous garment, the Magistrate
conducting the parade shall, if possible, either arrange for similar wear to other
or induce the suspected person to remove suspected person to remove such
granted.
(b)The accused shall be allowed to select his own position and should be
expressly asked if he has any objection to the persons present with him or the
arrangements made. It is desirable to change the order in which the suspects
have been placed at the parade during the interval between the departure of
one witness and the arrival of another.
(a)The witnesses who have been summoned for the parade shall be kept out of
the view of the parade shall be kept out of the view of the parade and shall be
prevented from seeing the prisoner before he is paraded with others.
(b)Before a witness is called upon to identify the suspect, he should be asked
whether he admits prior acquaintance with any suspect whom he proposes to
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identify. He shall be also asked to state the marks of identification by which he

can identify the suspects.
(c)Each witness shall be fetched by separately. The witness shall be introduced
one by one and on leaving shall not be allowed to communicate with witness
still waiting see the persons paraded.
Every circumstance connected with the identification including the act if any
attributes to the persons who is identified shall be carefully recorded by the
officer conducting it, whether the accused or any other person is
identified or not, particularly any objection by any suspect to any in the
proceeding shall be recorded.
Identification of property:-
Identification parades of properties shall be held in the Court the
Magistrate where the properties are lodges;
Each item of property shall be put up separately for the parade. It shall
be mixed up with four or similar objects.
Before calling upon the witnesses to identify the property, he shall be
asked to state the identification marks of his property. Witnesses shall be
called in one after the other and on leving shall not allowed to communicate
with the witness not yet called.
Defective Investigation: Explanation & Causes:
The things which are the main part of the investigation is the material that is
being searched and the facts in order to find out whether or not an offence has
been committed. In considering this search, it is the duty of the police to
investigate fairly and thoroughly and collect all the evidence, whether they are
for against the suspect. There are many reasons for defective investigation but
if we notice some of the main reasons are problem faced from the stage of filing
of F.I.R. to maintenance of case diary, the procedure of seizure of documents
and things, delay in investigation and servicing in summons to witness. We say
that there should be a reasonable and fair trial and the concept this would be
one which the accused as well as the as the victim or the aggrieved person gets
justice.
Defective investigation which is an impediment in terms of ensuring
effective and speedy justice to victims. As it is mention in the Indian
Constitution Article 21 every person has a right to his life and liberty and his
cases of defective investigation just because of the improper investigation the
accused gets acquitted and innocent never gets justice which is the violation of
his Fundamental Rights. And if we look at this problem just because of faulty
investigation cases are pending in the court for many years because the reports
are never submitted on time or the investigation is not completed which in
result causes delay in justice delivery system and creates a problem for the
people who are totally dependent on the courts for justice.
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Factors Leading To Faulty Investigation:

Recording of First Information Report-: Although the court has repeatedly
pronounced that mere delay cannot be a ground to discard the prosecution
story, however where extraordinary delay in lodging FIR is not satisfactorily
explained, the FIR is always viewed by the court with suspicion. The object of
insisting upon prompt lodging of the FIR is to obtain early information
regarding the circumstances in which the crime was committed as the delay is
likely to cause a colored version. There are also cases where FIR contains false
accusation, it becomes unreliable evidence. Also, material omission in FIR
affecting the prosecution case renders the FIR unacceptable.
Fabrication of Record and Partial Investigation-: Before accusing an
innocent person of the commission of a grave crime, it is essential to conduct
an honest, sincere and dispassionate investigation. In cases where grave
offences are attributed to the police officials, the investigation must be done on
the proper lines and all relevant evidence must be collected for which unbiased
police officials must be deputed. Also, in cases where complainant and the
investigating officer is the same person, the court quashed the conviction.
Errors/Negligence in Collection of Evidence-: the omission to collect blood
stained earth by investigating officer from the site casts a serious doubt on the
place of incident. Also, the failure of the investigating agency in sending the
firearms for comparison does have an adverse effect on the prosecution case
though it does not completely throw out the prosecution case when the case is
completely made out.
Backtracking by the Informant-: Where the investigating officer deposes that
he inspected the place of occurrence in the presence of the informant, the
informant identity the dead body and he prepared an inquest report, site plan
and seized articles in the presence of the informant, but the informant denies
that he was present along with the investigating officer on the spot at the time,
then the court is usually inclined to believe that documents were prepared by
the investigating officer sitting in his office and casts doubt on the
investigation.
Belated Examination of Eye Witness-: In cases where the eye witnesses were
examined a few days after the incident took place, does not by itself give rise to
the inference that the presence of a witness was improbable and unnatural but
does to a certain extent casts doubt on the investigation. Even in a murder
case, mere delay in recording the statements of an eye witness is no fatal to the
investigation.
Signing of Statement under Section 161-: The person giving the statement is
not required to sign the statement as mandated by the section 161 of the
Cr.P.C. The failure to comply with this section might affect the weight to be
attached to the evidence of the witnesses: it does not render it inadmissible.
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The court has held that merely because signature is obtained in a statement
under section161, the evidence of the witness must not be treated as
inadmissible.
Suspicious Nature of the Police Record-: If the police record made by the
investigating officer becomes suspect or unreliable, on the ground that it was
deliberately dishonest, it loses much of its value and the court while judging
the case has to weigh the evidence more carefully and with greater doubt and
might affect the prosecution case.
Leakage of Information Relating to Investigation-: It must be noted that
police officers of various levels interact freely with the media and, at times,
revealed certain information to the public follow up action is taken. The
ultimately disclosure of certain information can seriously damage the actions
to be taken. All officers should be very careful while interacting with the media.
Inadequacy of Investigating Staff-: There exists a huge problem of
inadequacy of the investigating staff. The police officers are hard pressed for
time with multifarious commitments and, thus, not able to devote adequate
time for investigational work. As a natural consequence, the quality of the
investigation suffers which in turn increases the chances of acquittal.
Improper Investigation Leads to Unfair Judgment:
As we all know that in any case investigation plays a major role because
through investigation the court came into the position of understanding the
situation and depth of the crime. Through proper investigation the real facts
and evidences are being collected because of which court is able to give its
decision and in result of which guilty is being convicted but if there is an
improper investigation or there is any lack or delay in the investigating
procedures which result in the loss of evidence or investigating team is not able
to collect the sufficient evidence from the crime scene because of offender gets
easily acquitted and crime rate remains the same in the society.
Conclusion
The aim of the investigation, in fact of the entire Criminal Justice System is to
search for the truth. As a result the whole Criminal Justice System is based on
the investigation system because if there is no proper investigation in criminal
cases then the probability of acquittal of criminal and conviction of innocent
will increase which in result would not be good for the society. Just because of
the defect in investigation procedure the innocents never get justice and
accused is being acquitted after committing the crime. Many suggestions have
given to improve investigation procedure like that of separation of investigation
wing from the law and order wing. This was the suggestion given by the Law
Commission of India and has been discussed as an issue in their 154th report.
Thus through this study I can well establish the fact that proper investigation
is fare judgment.