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FIR

FIR

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154. Information in cognizable cases.:- Bare Act First Information Report. — First information report is not defined in the Code. It may be defined as follows (1) It is an information which is given to the police officer; (2) information must relate to a cognizable offence; (3) It is an information first in point of time; (4) It is on the basis of this information that investigation into the offence commences. Object of FIR :- The principal object of the first information report from the point of view of the informant is to set the criminal law in motion and from the point of view of the investigating authorities is to obtain information about the alleged criminal activity so as to be able to take suitable steps to trace and bring to book the guilty. The F.I.R, in a criminal case is extremely vital and valueable piece of evidence for the purpose of corroborating the oral evidence adduced at the trial. Sec. 154 has a three-fold object, namely: (1) To inform theMagistrate and the DistrictS. P. who are responsible for the peace and safety of the district, of the offences reported at the police station; (2) To make known to the judicial officers before whom the case is ultimately tried, what are the facts given out immediately after the occurrence and on what materials the investigation commenced; and (3) To safeguard the accused against subsequent variations or additions. Hasib v. State of Bihar, AIR 1972 Sc 283. The principal object of the F,I.R from the point of view of the informant is to set the criminal law in motion and from the point of view of the investigating authorities is to obtain information about the alleged criminal activity so as to be able to take suitable steps to trace and bring to book the guilty. Multiple FIR :- Multiple FIR is the situation in which in respect of the same offence or case several FIR have been lodged. Cross FIR :- When such FIR are lodged in the same case by the opposite party it is called Cross FIR. Anti Timed (Event FIR) :- FIR after a long delay of occurance of the event ,but it cannot be anti timed.

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Zero FIR :- Whenever a Police officer in charge lodges an FIR but believe that hw does not have jurisdiction to investigation ,such an FIR ultimately transferred to other Police station. When a Statement Amounts to F.1.R.? The question whether a statement is FIR. or is one made after the receipt of F.I.R. assumes importance. It has been held that first information is that information which is given to the police first in point of time (on the basis of which the investigation has been commenced) and not that which the police may select and record as first information. When a person reported to the police officer that he had seen a certain woman with her throat cut, and the officer had not made a record of that fact, but subsequently treated an information lodged by the woman‘s father as first information in the case, held that the unrecorded information was in fact the first information, and not that given by the woman‘s father. However, any sort of information given first in point of time is not necessarily first information within Sec. 154. It is necessary that such information must relate to a cognizable offence on the face of it, and not merely in the light of subsequent events. Sec. 154 does not necessarily contemplate that only one information of a crime should be recorded as FIR., but all information given to the police before investigation is started, may amount to first information. Therefore, information lodged at two different police stations regarding the same offence would both be admissible in evidence. However, there is a trend of court‘s acceptance of F.I.R. as statements which give circumstances of the crime with a view that the police officer might proceed to investigate If any oral information relating to the commission of a cognizable offence is given to police officer, but the same is not recorded and the police officer proceeds to the scene of offence and there records Statements of witnesses, none of such statements would amount to FIR. Because in such a case the real FIR. is the unrecorded oral information given to the lice officer by the informant [S. V Madar v State of Mysore (1980) 1 SCC 479]. The following points may be noted about a FI.R. (1) It should be information of fact disclosing the commission of a cognizable offence. (2) It should not be vague or indefinite. State of UP v R.K Srivastava (1989) 4 SCC 59]. ‗If the allegations made in the F.I.R. are taken at their face value and accepted in their entirety do not constitute an offence, the criminal proceedings instituted on the basis of such F.I.R. should be quashed (3) It may be given by anybody; the injured should not always b,e the first informant. (4) It is not necessary that the offender or the witnesses should be named. The following do not come within the purview of a F.I.R., namely:

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(1) A statement given to the police after investigation have commenced. (2) A statement made by a witness during investigation. (3) A titement recorded by an officer-in-charge on the basis of his personal knowledge after the original information was received. (4) A report by a police officer informing his superior that he had been told of the possible commission of a dacoity at some time in the future. (5) A complaint made orally or in writing to a Magistrate.

Provisions Relating to F.l.R. (i) Police duty to record information — When any information disclosing a cognizable offence laid before the officer-in-charge of a police station, he has no option but to register the case on the basis thereof (State of Haryana v Bhajan Lal, 1992 CrLJ 527 (SC); Satish Kumar Goel v State, 2000 CrLJ 2176 (Del)]. Further, refusal to record an F.I.R. on the ground that the place of crime does not fall within the territorial jurisdiction of the police station, amounts to dereliction of duty. Information diout cognizable offence would have to be recorded and forwarded to the police station having risdiction [State of AR v Punati Ramulu AIR 1993 SC 2644. (ii) Certain provisions of Sec. 154 are non-mandatory — The provisions of Sec. 154 regarding reading over of information after it is reduced to writing, signing of the same by the person giving the information and entering its substance in the prescribed manner are not mandatory. These requirements are merely procedural and the omission of the one or the other cannot affect the legal consequences which follow the information given under Sec. 154 (iii) Act of giving and recording constitute one transaction — The giving of first information and recording the same is a continuous process. The nature of that process cannot be altered by reason of the fact that the investigation might have commenced at an intermediate point before the recording of the FIR. was complete, unless there is definite evidence to show that what was stated or recorded after the investigation has commenced was ascribable to some inquiry made in the meantime by a police officer investigating the offence (iv) First information report and Magistrate — The endorsement by the Magistrate, on the copy of the F.I.R. was held to be sufficient and the absence of seal did not make any difference [S. Bhimappa v State of Karnataka AIR 1994 SC 848]. (v) FIR. and accused — The FIR. is a public document and an accused is entitled to have its certified copy. The denial of the copy will be violative of Art. 21 of the Constitution

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Importance of F.I.R. — First information report is important from many point of views. It is a statement made soon after the occurrence, hence, the memory of the informant is fresh and it is also unlikely that he had opportunities of fabrication. Delay in giving information is, therefore, viewed with grave suspicion. The First Information need not contain the name of witnesses8 or other minute details. Where the first information report is also a dying declaration, it can be used as a substantive or primary evidence as a dying declaration. Where First Information Report can be tendered in evidence under any provision contained in the Evidence Act, such as a dying declaration or as a part of informant‘s conduct under Section 8 it can be used as a substantive evidence. It was held in Kirender Sarkar and Others v. State of Assam, that First Information Report is not supposed to be encyclopaedia of the entire events and cannot contain the minutest details of the events. When essentially material factq are disclosed in the F.LR. that is sufficient. The First Information Report lodged under Section 154 Cr. P. Code is not a substantive evidence and it cannot be used for contradicting testimony of eye-witnesses except that it may be used f the purpose of contradicting maker of report. Though naming of accuse persons in F.I.R. cannot be ignored but failure to name one or few accused c be no reason to disbelieve testimony of crucial witnesses. Evidentiary value of FIR :- Although FIR recorded by the police is of considerable value at the trial showing as it does on what materials the investigation commenced, it is not a piece of substantive evidence, but may only be considered for the purpose of corroboration under section 157 of the Indian Evidence Act, if all the provisions thereof are complied with. It is admissible in evidence against the maker or informant. It can be used only as a previous statement admissible to corroborate or contradict a statement made by the informant subsequently in court. It can, therefore, be used only for the purpose of corroborating or contradicting the maker thereof. The FIR is never treated as a substantive piece of evidence. It can only be used for corroborating or contradicting its maker when he appears in court as a witness. Its value must depend upon the facts and circumstances of a given case; Dharma Ram Bhagare v. State of Maharashtra, 1974 (II) SCJ 349. Delay in lodging FIR :- Delay in giving first information can be condoned if there is satisfactory explanation. Whether the delay is so long as to throw a cloud of suspicion. on the deeds of the prosecution case must depend upon a variety of factors. When there is criticism on the ground that FIR in a case was delayed, the Court has to look at the reason why there was such a delay. There can be a variety of genuine causes for FIR lodgment to get delayed. Where the delay in filing F.l.R. is due to its being lodged at a wrong police station, it was held to be reasonably explained. Where the accused himself gives the first information the fact of his giving the information is admissible against him as evidence of his conduct under Section 8 of the Evidence Act. If the information is non-confessional, it is admissible against the accused as an admission under Section 21 of the Evidence Act and is relevant. But a confessional first information report by the accused to a police officer cannot be used against him in view of Section 25 of the Evidence Act. Rural people might be ignorant of the need for informing the police of a crime

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without any lapse of time. This kind of unconversantness is not too uncommon among urban people also. They might not immediately think of going to the police station. It was held in Utpal Das and Another v. State of West Bengal, that first information report does not constitute substantive evidence. However, it can only be used as a previous statement for purposes of either corroborating its matter or for contradiction. And in such a case previous statement cannot be used unless attention of witness has first been drawn to those parts by which it is proposed to contradict the witness. It was held in State of Himachal Pradesh v. Gianchand, that the delay in lodging F.I.R. cannot be used as a ritualistic formula for doubting the prosecution case and discarding the same solely on that ground. If the delay is explained to the satisfaction of the court it cannot by itself be a ground for disbelieving and discarding the entire prosecution case. Ravinder Kumar v. State of Punjab, (2001) 7 SCC 690. :- In any case, where there is delay in making the FIR, the Court has to look at the cause of it and if such causes are not attributable to any effort to concoct a version no consequence shall be attached to the mere delay in lodging the FIR; Amar Singh v. Baiwinder Singh, (2003) 2 SCC 518: 1 (2003) SLT 733. :- There is no hard and fast rule that any delay in lodging the FIR would automatically render the prosecution case doubtful. It necessarily depends upon facts and circumstances of each case whether there has been any such delay in lodging the FIR which may cast doubt about the veracity of the prosecution case and for this a host of circumstances like the condition of the first informant, the nature of injuries sustained, the number of victims, the efforts made to provide medical aid to them, the distance of the hospital and the police station, etc. have to be taken into consideration. There is no mathematical formula by which an inference may be drawn either way merely on account of delay in lodging of the FIR; State of Himachal Pradesh v. Gian Chand, (2001) 6 SCC 71: III (2001) SLT 740. :- Delay in lodging the FIR cannot be used as a ritualistic formula for doubting the prosecution case and discarding the same solely on the ground of delay in lodging the first information report. Delay has the effect of putting the Court on its guard to search if any plausible explanation has been offered for the delay, and if offered, whether it is satisfactory or not. If the prosecution fails to satisfactorily explain the delay and there is a possibility of embellishment in the prosecution version on account of such delay, the delay would be fatal to the prosecution. However, if the delay is explained to the satisfaction of the Court, the delay cannot be itself be a ground for disbelieving and discarding the entire prosecution case; Sahebrao v. State of Maharashtra, 11(2006) CCR 158 (SC). The settled principle of law of this Court is that delay in filing FIR by itself cannot be a ground to doubt the prosecution case and discard it. The delay in lodging the FIR would put the Court on its guard to search if any plausible explanation has been offered and if offered whether it is satisfactory;

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Every information relating to the commission of a cognizable Offence shall be reduced to writing’ [Sub-s. (1).—A careful and accurate record of the ―first information‖ has always been considered as a matter of the highest importance by the courts in India, the object of the ―first information‖ being to show what was the manner in which the occurrence was related when the case was first stated. The Supreme Court has held that first information report is not substantive evidence. It cannot be preferred to the evidence given by the witness in court. However it can be used to corroborate or impeach the testimony of the person holding it under s. 145, 157 and 158 of the Evidence Act. It can also be used under section 32 and s. 8(J) and (k) of the Evidence Act. An FIR can be used to discredit the testimony of the maker of the report, but even if he gives entirely different version the prosecution case cannot be thrown out.The Information given under this section is generally referred to as FIR. The requirements of this section in regard to reading over of the information after it is reduced to writing, the signing of the same by the person giving the information and the entering of the substance of that information in the prescribed manner, are not mandatory these requirements are merely procedural and the omission of the one or the other cannot affect the legal consequences which follow the information given under the section. The Word ―information‖ means something in the nature of a complaint or accusation or at least information of a crime, given with the object of putting the police in motion in order to investigate, as distinguished from information obtained by the police when actively investigating a crime. Right to copy of report and to submit substance to Superitendent of Police. :- The informant is, as of right, entitled to receive a copy of the information as recorded free of cost. If the information is not recorded by the poiice-officer the informant can approach the Superintdant of police by sending him the substance of the information by post. Such officer can investigate the case himself or direct an investigation by his subordinate officer. Public Document._ The First Information Report is a public document and an accused is entitled to have its certified copy. The denial of a copy will be against the principles of natural justice and violative of Article 21 of the Constitution. General Diary: In every Police Station, Out post, investigation Centre, Station houses etc, a general diary book is to be maintained duplicate. And every activity of the police right from the officer-in-charge to the entry is to be noted down serially by putting number and d and time against each to avoid manipulation. If commission of non-cognizable crime is reported to the police Then police will enter it into general diary book and proceed with the enquiry. A court of law can call for the general diary at any time f verification of certain facts. Case Diary : The diary referred to in Section 172Cr. P.C. is known as ‗Special diary‘ or ‗Case diary‘. As provided in Sec. 172 of Cr. P. C. any officer prescribed by the government will

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investigate into the case to find the truth. And all his efforts for this purpose will be noted in the case diary to be mentioned separately for each case day to day and at the closure of the investigation in the case diary must be sent to the court for perusal. But it is a confidential document of the prosecution and the accused or his pleader has no right to have any access into it. They are eligible to have the copies of certain documents and statements of witness U/s. 161 Cr. P.C. as provided U/s. 173 Cr. P.C. The entries of the Police diary ar. neither substantive nor corroborating evidence and can only be used for a limited purpose. (A.I.R.1995 SC 1748). The distinction between complaint and F.I.R. are as follows: Complaint 1. It is filed in the court 2. Complaint may be filed relating to both cognizable and non-cognizable offence. 3. Without the permission of the court the Police officer cannot investigate the case. 4.. There is no particular form of complaint, F.I.R. 1. It is lodged in the Police Station 2. It is an initiation of cognizable offence.

3. Investigation of the case follows on filing of F.I.R. 4. Formal EI.R. must be filled up by the police in specified proforma supplied by the State Government. 5. The object of F.I.R. is to set the criminal law in motion

5. The object of complaint is to take action by the Magistrate. General Dairy and F.I.R. Distinction General Diary

F. I. R. 1. F.I.R. is an information either in writing or orally regarding commission of an cognizable offence.

1. Entry in the general diary is made showing therein the purpose and works, allotment of duty and other things in the Police Station House. 2. Entry in the general diary in connection with the commission of an offence is made such offence is non-cognizable. 3. The person making the entry is not entitled to any

2. F.I.R. must be in relation to a cognizable offence. 3. Informant lodging the FIR must be

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copy thereof 4. Entry in the general diary or its copy is to be sent to the higher police officer.

given a copy duly signed by the officer in charge. 4.FIR must be sebt to a Magistrate within 24 hours.

155. Information as to non-cognizable cases and investigation of such cases.:Bare Act
(a) information to the police as to non-cognizable offence.—If any person gives

information to an officer in charge of a police station of the commission of a noncognizable offence, the officer shall enter or cause to be entered the substance of the information in a book prescribed for this purpose. The officer shall then refer the informant to the magistrate [S. 155(1)]. The police officer has no further duty unless he is ordered by a magistrate to investigate the case.
(b) Powers of the police to investigate a non-cognizable case depend on Magistrate’s

order.—The primary rule is that no police officer shall investigate a non-cognizable case without the order of a magistrate having power to try such case or commit the case for trial [S. 155(2)]. The Code does not expressly give power to a magistrate to order investigation into a non-cognizable case. Such a power, however, can be implied from the wording of S. 155(2). The Code does not give any direction or guidance to the magistrates as to how and in what circumstances the power to order investigation is to be exercised. Certainly the power is not to be exercised arbitrarily or capriciously. Probably the magistrate is to consider the totality of the circumstances and consider whether it would not be just and proper to ask the police to investigate the non-cognizable case. If a magistrate, who is not empowered, erroneously orders in good faith an investigation under S. 155(2), the proceedings shall not be set aside merely on the ground of his not being so empowered [see S. 460(b)].
(c) A case consisting of both cognizable and non-cognizable offences: In a situation where

a criminal case consists of both cognizable and non-cognizable offences, a question may arise as to whether the case is to be treated as a cognizable case or a non-cognizable case. To meet such a situation S. 155(4) provides that ―where a case relates to two or more offences of which at least one is cognizable, the case shall be deemed to be a cognizable case, notwithstanding that the other offences are non-cognizable‖. A case alleging commission of offences under Sections 494 and 498-A IPC could be investigated by the police, though offence under S. 494 is a non-cognizable offence, by virtue of S. 155(4).
(d) Powers to investigate a non-cognizable case: Where a magistrate under S. 155(2) gives an

order to a police officer to investigate a non-cognizable case, the police officer receiving such order may exercise the same powers in respect of the investigation (except the power to

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arrest without warrant) as an officer in charge of a police station may exercise in a cognizable case [S. 155(3)]. Sanction For Investigation Necessary :- The investigation in a non-cognizable case cannot be started suo moto by the Police officer. He has to direct the informant to the court or to himself report the case to the Magistrate for order u/s 155 (2) Cr.P.C. The magistrate on receipt of this report can order investigation u/s 155(2) Cr.P.C. without himself taking cognizance u/s 190 Cr.P.C. i.e. he can do so without calling for a complainant, recording his statement and so on. Pre- requisites for order of investigation u/s 155(2) Cr.P.C. :- The magistrate before passing order u/s 155 (2) Cr. P.C. for investigation by the Police in non-cognizable case must see whether or not there were reasonable grounds for believing at an offence had been committed. Biroo vs. State 1960 Cr.L.J. 1059. :- An order without satisfaction as such would be an order passed arbitrarily .It was further held therein permitting the police to investigate into a non-cognizable offence and thereafter to prosecute ,accused on a charge sheet by the Police is a serious matter not only for the accused but also for the state, for employing police agencies to do the work for private individuals who under the law are required to seek their own remedy from a court of law is to unnecessarily waste public funds and the time of public officers which apparently the law tried to safeguard.‖ In no case, investigation in a non-cognizable case can be started without the orders of Magistrate having power to try such case or commit the same for trial. On obtaining such orders the Police Officer is authorized to exercise the same powers in respect of the investigation as an officer in charge of a P.S. may exercise in a cognizable case but he has no powers to arrest except under a warrant issued by a magistrate. (S. 155 (3) Cr.P.C). Investigation without sanction and its effect :- In some cases by mistake, a noncognizable, offence is registered as F.I.R. (cognizable case) and investigated like a cognizable case. There are also cases where after writing a report in the Daily Diary of such offence, a Police Officer looks into it and holds preliminary investigation without an order of a magistrate. Then in the former case, a challan is sent up and in the latter a complaint is filed. The question arises if this irregular conduct of the Police in investigating a noncognizable case without legal order u/s 155 (2) Cr.P.C. affects the merits of the case adversely or not or if the illegality makes the case void ab intio or if the magistrate can refuse taking cognizance on it. 1. If an investigation of non-cognizable offence is held without permission of magistrate u/s 155 (2) Cr.P.C. the whole proceedings of investigation become void. The court cannot take cognizance for trial on any police report sent after such investigation for trial.

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(i) Section 155(2) of the new code prohibits investigation by a police officer into a noncognizable offence without the order of a magistrate. A violation of the provision would stamp the investigation with illegality; (ii) This defect in the investigation can be obviated and prejudice to the accused avoided by the magistrate ordering investigation under S. 202 of the Code; (iii) The report of a police officer following an investigation contrary to S. 155 (Cr) could be treated as a complaint under S. 2(d) and S. 190(1) (a) of the code if at the commencement of the investigation the police officer is led to believe that the case involved commission of a cognizable offence or if there is doubt about it and investigation establishes only commission of a non-cognizable offence; (iv) If at the commencement of the investigation it is apparent that the case involved only commission of a non-cognizable offence, the report followed by investigation cannot be treated as a complaint under S. 2 (h) or S. 190(a) of the Code. 2. This rule is not applicable where while investigation a cognizable offence another cognizable offence is also made out. S. 155(4) Cr.P.C. says that where a case relates to two or more offences of which at least one is cognizable, the case shall be deemed to be a cognizable case, not withstanding that the other offences are non-cognizable. During the investigation of cognizable offence, a Police officer can look into a non-cognizable offence and investigation would not be rendered illegal in spite of express prohibition contained in S. 155 Cr.P.C. 3. Similarly while investigating a cognizable case, if a non-cognizable offence is made out, the police can send a complaint for the commission of non-cognizable offence and the court can take cognizable on it irrespective of the fact that no sanction for investigation u/s 155 (2) Cr.P.C. was taken for investigation of this non cognizable offence. 4. A Police Officer, however, cannot investigate into another and separate noncognizable offence in case he is not authorised by a magistrate while investigating a particular noncognizable offence under particular orders. 5. If while investigation a non-cognizable case, in fact a cognizable offence is made out, the Police Officer is duty bound to bring the offence at once on the Crime Register i.e. Register No. l (F.1.R) and to Report to the magistrate that he is dealing with the ‗offence u/s 157 Cr. P.C. and to act accordingly. 156. Police officer’s power to investigate cognizable cases.;- (Bare Act)

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COMMENT.—In the case of a cognizable offence the police may hold an investigation irrespective of any order of the Court. Courts have no control in such cases over the investigation, or over the action of the police in holding such investigation. Investigation of cognizable offence [Sub-section (1).—This subsection enables the police to investigate cognizable offence committed beyond their local jurisdiction. Duty of police on receipt of FIR._ The registration of an FIR empowers the officer in charge of the police station to commence investigation with respect to the crime reported to him. A copy of the FIR is required to be sent forthwith to the magistrate empowered to take cognizance of such offence. After recording the FIR officer in charge of the police station is obliged to proceed in person or depute one of his subordinate officers not below such rank as the State Govt.may, by general or special order, prescribe to proceed to the spot to investigate the facts and circumstances of the case and if necessary, to take measures for discovery and arrest of the offender. Order of investigation [Sub-section (3).—This sub-section empowers Magistrate to order a police inquiry in a case where the Magistrate does not himself issue process at once. The word ‗Magistrate‘ mentioned in section 156 (3) means Judicial Magistrate who is competent to take cognizance of a offence and not Executive Magistrate. This sub-section empowers a Magistrate to order the investigation of an offence of which he may have taken cognizance under s. 190. He may do so even before the examination of the complainant. Thus the Magistrate is not bound to take cognizance of the offence or receiving a complaint and he may, without taking cognizance direct investigation of the case by the police under sub-section (3) of this section. A Magistrate can also under s. 159 direct an investigation or preliminary inquiry into a case which may have been reported by the police as not worth investigating. The power to order police investigation under s. 156(3) is different from the power to direct investigation conferred by s. 202(1). The first is exerciseable at the pre-cognizance stage, the second is at the post-cognizance stage when Magistrate is seized of the case. The power under s. 156(3) can be invoked by the Magistrate only before he takes cognizance of the offence under s. 190. The magistrate can without taking cognizance of a private complaint which may be exclusively triable by a Court of Sessions, refer it for investigation under section 156 (3). The powers of police under the Cr. P.C. to investigate a cognizable offence are wide and unfettered, but the condition precedent for taking up investigation is that the police must have reason to suspect commission of a cognizable offence . whether on information or otherwise and that can only be when FIR and other material is disclose a cognizable offence. A magistrate has no power under s. 156(3) to direct the CBI to conduct investigate any offence.‖ The primary responsibility for conducting investigation into offences in cognizable cases vests in the in-charge police officer. Section 156 (3) of the Code empowers a Magistrate to direct such officer in-charge of the police station to investigate any a cognizable case over which such Magistrate has jurisdiction . Though a Magistrate under s. 156(3) can only direct an officer in

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charge of a police station to conduct such investigation and not a superior police officer nevertheless, when such an order is passed any police officer, superior in rank of such officer, can as well exercise the power to conduct an investigation, and all such investigations would then be deemed to be the investigation conducted by the officer in charge of a police station. A Magistrate has no power to order investigation under this section after the issue of process to the accused. When investigation of a cognizable offence has been started by the police, the Magistrate has no power to stop it and order for magisterial inquiry. In case of mala fide exercise of power of investigation by police the remedy is to invoke writ jurisdiction. Where the Magistrate orders investigation by the police before taking cognizance under Section 156(3) of the Code and receives the final report from the police he has power to issue notice to the complainant, record his statement and the statement of other witnesses, and issue process under Section 204 of the Code. The legal propositions that emerge in this regard are 1. A Magistrate can order investigation under Section 156(3) only at the pre-cognizance stage i.e., before taking cognizance under Sections 190, 200, and 204 and where a Magistrate decides to take cognizance under the provisions of Chapter XIV he is not entitled by law to order any investigation under Section 156(3), though in cases not falling within the proviso to Section 202, he can order an investigation by the police which would be in the nature of an inquiry as contemplated by Section 202 of the Code. 2. Where the Magistrate chooses to take cognizance he can adapt any of the following alternatives a) He can peruse the complaint and if satisfied that there are sufficient grounds for proceeding he can straightaway issue process to the accused but before he does so he must comply with the requirements of Section 200 and record the evidence of the complainant or his witnesses. b) The Magistrate can postpone the issue of process and direct an inquiry by himself. c) The Magistrate can postpone the issue of process and direct an inquiry by any other person or an investigation by the police. (3) In case the Magistrate after considering the statement of the complainant and the witnesses or as a result of the investigation and the inquiry ordered, is not satisfied, that there are sufficient grounds for proceeding, he can dismiss the complaint. (4) Where a Magistrate orders investigation by the police before taking cognizance under Section 156(3) of the Code and receives the report thereupon, he can act on the report and discharge the accused or straightaway issue the process against the accused or apply his mind to complaint filed before him and take action under Section 190 of the Code.

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Madhubala v. Suresh Kumar 1997 cr. L.J. 3757 SC that once a complaint disclosing a cognizable offence is made before a Magistrate, he may take cognizance upon the same under Section 190(1)(a) or order an investigation by the police under Section 156(3) Cr. P. Code. Whenever a Magistrate directs an investigation on a complaint the police has to register a cognizable case treating the same as F.I.R. Once such a direction is given under sub-section (3) of Section 156 the police is required to investigate into that complaint under Section 156(1) and on completion of investigation to submit a police report in accordance with Section 173(2) on which a Magistrate may take cognizance under Section 190(1)(b) and not under Section 190(1)(a). In Ramesh Bhai Pandurao Hedau v. State of Gujarat, (2010) 2 Cri. L.J 2441 (S.C.). it was held that the power to direct an investigation is available to the Magistrate both under section 156(3) and Section 202, Cr. P.C. The power under section 156(3) is exercised at pre-cognizance stage while the power to direct a similar investigation under section 202 is exercised at the postcognizance stage. In the present case the Magistrate has chosen to adopt the latter course and has treated the protest petition filed by the appellant as a complaint under section 200 of the Code and has therefore proceeded under section. 202 Cr.P.code and kept the matter with himself for an inquiry in the facts of the case. There is nothing irregular in the manner in which the Magistrate has proceeded and if at the stage of sub-section (2) of Sec. 202, Magistrate deems it fit, he may either dismiss the complaint under section 203 or proceed in terms of section 193 and commit the case to Court of Session. In Rasikial Dalpatram Thakkar v. State of Gujarat, (2010) Cr. L.J. 884 (S.C.). it has been held that where an investigation is undertaken at the instance of the Magistrate a Police Officer empowered under sub-section (1) of section 156 is bound, except in specific and specially exceptional cases, to conduct such an investigation. The Investigating agency cannot refrain from conducting investigation on the ground that it had no territorial jurisdiction to investigate offence as the offence had been committed beyond its territory. It was held in Mohd. Yousuf v. Afaq Jahan, 2006 Cr. L.J. 788 (S.C.). that investigation envisaged in Section 156 is different from investigation under Section 202. Section 156 falls within Chapter XII which deals with powers of Police Officers to investigate cognizable offences. Investigation under Section 202 is contained in Chapter XV. Investigation under Chapter XII can be commenced even without order of Magistrate but that does not mean that when a Magistrate orders investigation under Section 156(3) it would be a different kind of investigation. Such investigation ends with submission of report under Section 173. Investigation under Section 156 is before a Magistrate takes cognizance and the one under Section 202 is after taking cognizance and is therefore of a limited nature. It is for helping the Magistrate to decide whether or not there is sufficient ground for him to proceed further. In criminal trial one of the cardinal principles for the Court is to look for plausible explanation for the delay in lodging the report. Delay defeats the chance of the unsoiled and untarnished version of the case to be presented before the Court at the earliest instance. That is why if there is delay in either coming before the police or before the Court, the Courts always view the

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allegations with suspicion and look for satisfactory explanation. If no such satisfaction is formed, the delay is treated as fatal to the prosecution case. It was further explained that Section 156 deals with powers of police officers to investigate cognizable offences. Section 202 which falls in Chapter XV dealing with the stage after cognizance, also refers to the power of a magistrate to ―direct an investigation by a police officer‖. But the investigation envisaged in ― Section 202 is different from the investigation contemplated in Section 156. The investigation contemplated by Section 202 is of a limited nature for helping the Magistrate to decide whether he should proceed further. The clear position, therefore, is that any judicial Magistrate, before taking cognizance of the offence, can order investigation under Section 156(3) of Cr.P. Code. If he does so, he is not to examine complainant on oath because he was not taking cognizance of any offence therein. For the purpose of enabling the police to start investigation it is open to the Magistrate to direct the police to register an F.I.R. There is nothing illegal in doing so. After all, registration of an F.I.R. involves only the process of entering the substance of the information relating to the commission of the cognizable offence in a book kept by the officer-in-charge of the police station indicated in Section 154 of Cr.P.C. Even if a Magistrate does not say in so many words while directing investigation under Section 156(3) that an F.I.R. should be registered, it is the duty of the police officer-in-charge of the police station to register the F.I.R. regarding the cognizable offence disclosed by the complainant because that police officer could take further steps contemplated in Chapter XII of the Cr.P.C only thereafter. Power of Writ Courts to monitor progress of investigation. — In Kunga Nima Lepcha v. State of Sikkim, (2011) 2 Cr. L.J. 2911 (S.C.). it was pointed out that it is true that in the past, the Supreme Court as well as various High Courts have indeed granted remedies relating to investigations in criminal cases. That is in the past writ jurisdiction has been used to monitor the progress of ongoing investigations or to transfer ongoing investigations from one Investigating agency to another. Such directions have been given when a specific violation of fundamental rights is shown, which could be the consequence of apathy or partiality on part of investigating agencies among other reasons. In some cases judicial intervention by way of writ jurisdiction is warranted on account of obstructions to the investigation process such as material threats to witnesses, the destruction of evidence or undue pressure from powerful interests. In all these circumstances the writ courts can only play a corrective role to ensure that integrity of the investigation is not compromised. However it is not viable for a writ court to order the initiation of an investigation. That function clearly lies in the domain of the executive and it is upto the investigating agencies themselves to decide whether the material produced before them provides a sufficient basis to launch an investigation. There are provisions in the Code of Criminal Procedure which empower the courts of first instance to exercise a certain degree of control over ongoing investigations. The scope for intervention by the Trial Court is hence controlled by statutory provisions and it is not advisable for writ courts to interfere with criminal investigations in absence of specific standards for the same.

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157. Procedure for investigations.:- (Bare Act) Section 157 provides the manner in which investigation is to be conducted where the commission of cognizable offence is suspected and authorises an officer-in-charge of a police station not to investigate if he considers that there is no sufficient ground for such investigation. Thus it regulates the procedure for investigation. It requires that prompt intimation of every complaint or information made to an officer-in-charge of a police station of the commission of a cognizable offence shall be given to the Magistrate having jurisdiction. The extraordinary delay in sending the F.I.R. is a circumstance which provides a legitimate basis for suspecting that the first information report was recorded much later than the stated date and about affording sufficient time to the prosecution to introduce improvements and embellishments and set up a distorted version of the occurrence. The suspicion hardens into a definite possibility when the case made in court differs at least in two very important particulars from that narrated in the F.I.R. In such a case the evidence of the eye-witnesses cannot be accepted at its face value. The importance of prompt dispatch of a copy of the FIR to a magistrate empowered to take cognizance of such an offence can be hardly over-emphasised. The time at which the report is received by the magistrate concerned goes a long way in coming to the proper conclusion as to time at which the FIR may have been written, lodged or registered. Failure to send a report to the magistrate as required by this provision 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 at with great suspicion. No doubt, the non-compliance of Ss. 154 and 157 does not constitute a ground to throw away a prosecution case but it does emerge as a factor to be seriously reckoned with while appreciating the entire evidence. Its non-observance is bound to cast some shadow on the case, obviously to its detriment, because of the adverse inference. However, where the FIR, was actually recorded without delay and the investigation started on the basis of that FIR and there is no other infirmity, then howsoever improper or objectionable the delayed receipt of the report by the magistrate concerned be, it cannot by itself justify the conclusion that the investigation was tainted and the prosecution unsupportable. There are, however, two circumstances in which it is not necessary. for the police officer in charge of a police station to proceed to the spot and to investigate the case. These circumstances are as follows— (a) Where the case is not of a serious nature and the information as to the commission of the offence has been given against any person by name [Proviso (a) to S. 157(1)1. The police officer in such a case is required to state in his report to the magistrate his reasons for not proceeding to the spot for investigation [S. 157(2)]. The Code has not given any guidance to the police officer as to the circumstances in which the case might be considered as ―not serious‖. However, if the police officer wrongly considers a case as ―not serious‖ or otherwise, the superior police officer through whom the report is sent to the magistrate, can always give appropriate directions to the officer in charge of a police station to set right the course of his action.

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(b) If it appears to the officer in charge of a police station that there is no sufficient ground for entering on an investigation he shall not investigate the case [Proviso (b) to S. 157(1)1. Here again the police officer is required by the Code to state in his report his reasons for not proceeding to investigate. The police officer is further required to notify immediately to the informant, if any, in the manner prescribed by the State Government, the fact that he will not investigate the case or cause it to be investigated [S. 157(2)1. This would enable the informant to approach a magistrate or a superior police officer for redress, if he feels aggrieved by the view taken by the police officer in charge of a police station. As the report to the magistrate is to pass through the hands of a superior police officer, he can issue appropriate instructions to the officer in charge of the police station regarding the investigations into the case. The magistrate receiving the above-said report of a police officer under S. 157, may direct an investigation, or if he thinks fit, may at once proceed to depute any magistrate subordinate to him to proceed to hold a preliminary enquiry into, or otherwise to dispose of the case in the manner provided in the Code (S. 159). This provision does not confer a magistrate a general power to direct investigation. The power to direct investigation is to be used when it appears from the police report under S. 157 that the police are neglecting their duties or are desisting from investigation on insufficient grounds. The power of the police to investigate any cognizable offence is uncontrolled by the magistrate, and it is only in cases where the police decide not to investigate the case that the magistrate can intervene and either direct investigation, or in the alternative, himself proceed or depute a magistrate subordinate to him to proceed to enquire into the case. Report :- ’Forthwith’.- The report is to be sent forthwith to the Magistrate. This is designed to keep the Magistrate informed of the investigation so as to be able to control the investigation and if necessary to give appropriate direction U/S 159. But the mere fact of the delayed receipt of the report by the Magistrate, if there be no prejudice caused to the accused, cannot by itself lead to the conclusion that the investigation is tented . Section 157 of the Criminal Procedure code requires a Police Officer to undertake investigation if on information received or otherwise, the officer has reason to suspect the commission of an offence. The power to investigate conferred under section 157 of the Cr.P.C does not necessarily flow from judgment of First Information report prescribed under section 154 of the Criminal Procedure Code and the police officer is entitled to undertake investigation from information received. Report made by police-officer in compliance with this section are not public documents within the meaning of s.74 of the Indian Evidence Act and consequently the accused is not entitled, before trial, to have copies of such reports. In State of UP. v. Gokaran, the steps in investigation by way of drawing inquest report and other Panchanamas started soon after receipt of information but the special report to be sent to the Magistrate was delayed. It was held that every delay in sending report to the Magistrate under Section 157 would n necessarily lead to the inference that the F.I.R. has not been lodged at the time stated or has been ante timed or ante dated or that the investigation is not fair and forthright.

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Though ordinarily investigation is undertaken by a police officer on information the receipt of information is not a condition precedent for investigation. It can be initiated either on information or otherwise. In State of Jammu and Kashmir v. Mohan Sin gh,2006 Cr.L.J 169 SC F.I.R. was recorded in the evening but a copy of the same was not sent to the Magistrate at his residence during night. However, it was sent at the earliest on next day in Court. It was held that it cannot be said that there was delay much less inordinate delay in sending a copy of report to the Magistrate. Therefore, the prosecution case cannot be thrown out on the ground of delay in sending a copy of report to the Magistrate. The words ‗first information received‘ refer to the information furnished and recorded under Section 154. Though ordinarily investigation is undertaken on information received by a police officer, the receipt of information is not a condition precedent for investigation. The words ‗or otherwise‘ are wide enough to include ‗every source of information‘ other than that furnished and recorded under Section 154. Investigation may, however, be commenced even when police are led to believe through their own knowledge or by means of credible though informal intelligence that a cognizable offence has been committed.

In Shashikant v. Central Bureau of Investigation, 2007 Cr. L.J. 995 (S.C.). an anonymous complaint alleging corrupt practice by a member of special police force was received. Authorities on the basis of said complaint initiated preliminary enquiry against him. The Supreme Court held that such course is permissible. Although ordinarily in terms of Section 154 of the Code, when a report is received relating to the cognizable offence, a First Information Report should be lodged, to carry out a preliminary inquiry even under the Code is not unknown. When an anonymous complaint is received, no investigating officer would initiate investigative process immediately thereupon. It may for good reasons carry out preliminary enquiry to find out the truth or otherwise of the allegations contained therein. Only when a F.I.R. is lodged, the officer-in-charge of the police station is statutorily liable to report about it to a Magistrate who is empowered to take cognizance in terms of proviso to Section 157(1) of the Code. Proviso (b) appended thereto empowers the Investigating Officer not to investigate where it appears to him that there is no sufficient ground to entering into an investigation. The question therefore, as to whether an empowered officer who had made investigation or caused the same to be made in a cognizable offence within the meaning of Section 157 of the Code or had not initiated an investigation on the basis of an information which would not come within the meaning of Section 154 of the Code is essentially required to be determined in the fact situation in each case. In State v. Jayapaul, 2004 Cr. L.J. 1819 (S.C.). the police officer received certain discreet information about the commission of certain crime, which, according to his assessment, warranted a probe and therefore, made up his mind to investigate. The formality of preparing the F.I.R. in which he records the factum of having received the information about the suspected commission of the offence and then taking up the investigation after registering the crime, does

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not, by any semblance of reasoning, vitiate the investigation on the ground of bias or the like factor. There is nothing in the Criminal Procedure Code which precluded the Inspector of Police, from taking up the investigation. A suo motu move on the part of the police officer to investigate a cognizable offence impelled by the information received from some sources is not out side the purview of the provisions contained in Sections 154 to 157 of the Code or any other provisions of the Code. ‗The proceedings cannot be quashed on premise that the investigation by the same officer who lodged the F.I.R. would prejudice the accused inasmuch as the investigating officer cannot be expected to act fairly ,and objectively. There is no principle or binding authority to hold that the moment the competent police officer, on the basis of information received makes out an F.I.R. incorporating his name as the informant, he forfeits his right to investigate. If at all, such investigation could only be assailed on the ground of bias or real likelihood of bias on the part of the investigating officer. The question of bias would depend on the facts and circumstances of each case and it is not proper to lay down a broad and unqualified proposition. Delay in forwarding report to magistrate.—”Forthwith”.-—The meaning of the expression forthwith‘ was explained by the Supreme Court The Expression ―forthwith‖ used in s. 157(1) would undoubtedly mean within a reasonable time and without any unreasonable delay. In the instant case, the FIR was sent to the Magistrate with reasonable promptitude and no delay at all was caused in forwarding the same to the Magistrate. In any view of the matter, even if the Magistrate‘s Court was nearby and the FIR reached him within six hour from the time of its lodgment, in view of the increase in workload, even in such a case it could not be said that there was any delay at all in forwarding the FIR to the Magistrate. Ishwar Singh v State of UP 76 SC 2423. State of Karnataka v. Chikkarangaiah and Others, 2009) 4 Cr. L.J. 4667 (S.C.). that delay in sending copy of the first information report to the Magistrate is not always fatal to the prosecution case. But it assumes importance when genesis of prosecution case is doubtful. Commencement of Investigation :- Investigation :- Investigation includes all proceedings under the Code for the collection of evidence conducted by a police officer or by any person other than a magistrate, who is authorised by the Magistrate in this behalf. The object of investigation is to find out whether the alleged offence have in fact been committed and if so, who have committed them. There cannot be an inquiry without registering a criminal case (a) Proceeding to the place of offence; (b) Ascertainment of the facts and circumstances of the case; (c) Discovery and arrest or‘ the suspected offender; (d) 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 police officer thinks fit

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(b) the search of places or seizure of things considered necessary for the investigation or trial; (e) Formation of the opinion as to whether on the materials 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 State of Haryana v Bhajan Lal, 1992 CrLJ 527 (SC)]. The officer-in-charge is given full discretion whether or not to investigate the case. He is not bound to act on the information where no prima fade case has been made out . The commencement of an investigation is subject to the following two conditions: (i) first the police officer should have reason to suspect the commission of a cognizable offence ii) secondly, he has to satisfy himself, subjectively as to the existence of sufficient grounds for entering on investigation The words ‗or otherwise‘ are wide enough to include every source of information other than that furnished and recorded under Sec. 154. 158. Report how submitted. ;- (1) Every report sent to a Magistrate under section 157 shall, if the State Government so directs, be submitted through such superior officer of police as the State Government, by general or special order, appoints in that behalf. (2) Such superior officer may give such instructions to the officer in charge of the police station as he thinks fit, and shall, after recording such instructions on such report, transmit the same without delay to the Magistrate. 159. Power to hold investigation or preliminary inquiry. Such Magistrate, on receiving such report, may direct an investigation, or, if he thinks fit, at once proceed or depute any Magistrate subordinate to him to proceed, to hold a preliminary inquiry into or otherwise to dispose of, the case in the manner provided in this Code. Sec. 159 does not confer on a Magistrate a general power to direct investigation; that power is to be used when it appears from the police report under Sec. 157 that the police are neglecting their duties or are desisting from investigation on insufficient grounds . The word ‗preliminary‘ refers to an inquiry that may be made Just after the receipt by the magistrate of the report under Sec. 157. An inquiry under Sec. 159 can be made only on submission of a police report i.e. a report (F.I.R.) made before the completion of the investigation by the police.

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160. Police Officer’s power to require attendance of witnesses. ;- (Bare Act) COMMENT :- While investigating into an offence, the police will ordinarily go to the persons who are acquainted with the facts and circumstances of the case without sending for them. But in certain cases the police may by a written order require the attendance of any person who appears to be acquainted with the facts and circumstances of the case. The words ‗any person‘ include a person who may become the accused. The intention of the Legislature appears to be to provide facility to the police to obtain evidence with regard to the crime being investigated. Disobedience of mere verbal order is not punishable. This section does not authorise a police officer to require the attendance of an accused person with a view to answering the charge. A person who fails to comply with the order of the police may be prosecuted for disobedience under Section 174 of the Indian Penal Code. Where, however, the accused person is a woman and the police constantly insists on the woman to appear at the police station it will amount to flagrant contravention of the provision of Section 160(1) of the Code of Criminal Procedure. In view of the Supreme Court such deviance must be visited with prompt punishment since police men may not be a law unto themselves expecting others to obey the law. In State v. N.M.T. Joy Immaculate,‟ the Supreme Court held that Section 160 of the Cr.P.C. deals with the power of police officer to require attendance of those persons who would supply the necessary information in respect of the commission of an offence and would be examined as witness in inquiry or trial therefor. This section applies only to possible witnesses in the trial or inquiry. An order under this section cannot be made requiring attendance of an accused person with a view to his answering the charge made against him. As an accued cannot be examined as a witness either for or against himself, he cannot be included in the class of persons referred to in Section 160 of Cr.P.C. But the police officers are authorised to require the personal attendance of the suspects during the investigation. In this case the High Court had given direction to State Government, to issue circulars to all the police stations instructing the police officials that the. woman accused/witness should not be summoned or required to attend at any police station under Section 160 of Cr.P.C., but they must be enquired only by women police or in the presence of women police at the places where they reside. The High Court further directed the Government to ensure that this instruction is strictly followed by the police in future. The Supreme Court held that the High Court has committed a serious error in giving such direction contrary to the statutory provisions under Section 160 of Cr.P.C. which is applicable only to the witnesses and not the accused.
1.

‘By order in writing, require the attendance before himself’.—The Order requiring the attendance of a person must be in writing. ‘Of any person being within the limits of his own or any adjoining station‘.—This section does not authorize a police-officer to require the attendance of an accused person with a view to his answering the charge. The intention of the Legislature seems to have been only to provide a facility for obtaining evidence and not for procuring the attendance of the accused, who may be arrested at any time, if necessary, without a warrant.

2.

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3.

Such person shall attend’.—A person who fails to comply with the order of the police may be prosecuted for disobedience under s. 174 of the I.P.C.

Payment of expenses to witness [Sub-section (2)1.—Reasonable expenses of witnesses to attend at places other than their residence may be paid. 161. Examination of witnesses by police.:- Bare Act A police officer making investigation can examine the witnesses acquainted with the facts of the case and reduce. them to writing if he so wishes. Section 161 does not authorise beating or confining a person with a view to induce him to make a statement. State of Andhra Pradesh v. Venugopal, AIR. 1964 S.C. 33. The object of S. 161 is to obtain evidence which may later be produced at the trial. In case of trial before a court of session or in case of trial of a Warrant-case, a charge may be framed against the accused on the basis of the statement recorded by the police officer under S 161. Before trial copies of scuh statements are to be furnished to the accused, free of cost.This requirement is also applicable to the accused in a case instituted otherwise than on police report. Recording a statement is not obligatory. The police should not extract information by using force. A statement made under this section during investigation of the cross case is absolutely inadmissible. The Supreme Court observed in a subsequent case on the subject; there could be no rule of universal application that if there is any delay in the examination of a particular witness the prosecution version becomes suspect. If the explanation offered for such delay is plausible and acceptable and the court accept the same as plausible, there is no reason to interfere with the conclusion. Further the investigating officer has to be specifically asked as to the reasons for the delayed examination where the accused raised a plea that there was unusual delay in the examination of the witnesses. Mere delay in examination of the witnesses for a few days cannot in all cases be termed to be fatal so far as the prosecution is concerned. There may several reasons. When the delay is explained, whatever be the length of the delay ,the court can act on the testimony of the witness if it is found to be cogent and credible. ‗May examine orally any person supposed to be acquainted with the facts of the case‘.—No oath or affirmation is required in an examinaion under this section. It is not obligatory to reduce to writing the statement of the person examined. Any person.—The words ‗any person‘ are quite general and would include accused person also. Such person must be one acquainted with the facts and circumstances of the case. The purpose of examination is to obtain evidence preliminary to arrest. If the police have sufficient evidence to arrest a person they should not proceed under this section.

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Bound to answer truly.—The word ‗truly‘ has been added in the new Code and did not appear in the old one. The law now expressly requires a person to answer the question truly. He can refuse to answer. He can refuse to answer incriminating questions. A person who gives a false answer to a question under this section may be prosecuted under Section 182 of Indian Penal Code. Sub-section (3).— This sub-section makes it clear that a police officer is not bound to record any statements of witnesses examined, though he may do so if he likes. Statements should be recorded as far as possible in the very words of the person examined. The section prohibits the recording of statements in a boiled form. Recording of statements in a boiled form will not make the evidence inadmissible at the trial, though it may become relevant for considering their credibility. Where the statement of witnesses is recorded, the police is obliged to make copies of those statements available to the accused before the commencement of the proceedings. The discretion given to the Investigating officer under this subsection in the matter of recording statement of witnesses should not be exercised in such a manner as to handicap the accused in their defence or to deprive the Court of valueable material for ascertaining the truth. While the failure to comply with the requirements of section 161(3) might affect the weight to be attached to the evidence of the witnesses, it would not render it inadmissible. Relevant fact not mentioned in s. 161 statement:- where a relevant fact was not mentioned in the statement of the witness under s. 161 but was deposed before the court in his testimony, the court said that this would not be a ground for rejecting his evidence if it is otherwise creditworthy and acceptable. An omission on the part of a police officer cannot take away the nature and character of the evidence. Evidentiary value of statement. — Statements recorded by the investigating officer under Section 161 cannot be used as substantive evidence before court. When statement of a witness has not been recorded under Section 161 at the time of investigation but he is examined in the court then his evidence can be acted upon only when no prejudice is caused to the accused. Delay in examination of witnesses.—In State of UP. v. Satish, there was delay in examination of witnesses by investigating officer and investigating officer was not questioned on the aspect of delay. It was held that delay in examining witnesses by investigating officer does not ipso facto make prosecution version suspect. Investigating officer should have been categorically questioned on the aspect of delayed examination. Since this has not been done disbelieving version of witnesses was improper. In Nandini satpathy 1978 SCC (Cri) 236 case the Supreme Court has extensively consider the párameters of S. 161(2) of the CrPC and the scope and ambit of Art. 20(3) of the Constitution. According to the Supreme Court, the accused person cannot be forced to answer questions merely because the answers thereto are not implicative when viewed in isolation and confined to that particular case. He is entitled to keep his mouth shut if the answer sought has a reasonable

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prospect of exposing him to guilt in some other accusation actual or imminent, even though the investigation under way is not with reference to that. Tendency to expose to a criminal charge is wider than actual exposure to such charge. In determining the incriminatory character of an answer the accused is entitled to consider — and the Court while adjudging will take note of — the setting, the totality of circumstances, the equation, personal and social, which have a bearing on making an answer substantially innocent but in effect guilty in import. However fanciful claims, unreasonable apprehensions and vague possibilities cannot be the hiding ground for an accused person. He is bound to answer where there is no clear tendency to criminate. ‗Compelled testimonys been considered as evidence procured not merely by physical threats or violence but by psychic torture, atmospheric pressure, environmental coercion, tiring interrogative prolixity, overbearing and intimidatory methods and the like. Frequent threats of prosecution if there is failure to answer may take on the complexion of undue pressure violating Art. 20(3). Legal penalty may by itself not amount to duress but the manner of mentioning it to the victim of interrogation may introduce an element of tension and tone of command perilously hovering near compulsion. Having discussed the main principles, the Supreme Court addressed itself to the further task of concretising guidelines with a view to give full social relevance to its judgment: (1) If an accused person expresses the wish to have his lawyer by his side when the police interrogate him, this facility shall not be denied to hith. However the police need not wait more than for a reasonable while for the arrival of the accused‘s advocate. This requirement will obviate the overreaching of Art. 20(3) and S. 161(2). (2) The po&e must invariably warn and record that fact about the right to silence against selfincrimination; and where the accused is literate take his written acknowledgement. (3) After an examination of the accused, where lawyer of his choice is not available, the police official must take him to a magistrate, doctor or other willing and responsible non-partisan official or non- official and allow a secluded audience where he may unburden himself beyond the view of the police and tell whether he has suffered duress, which should be followed by judicial or some other custody for him where the police cannot reach him. That collocutor may briefly record the relevant conversation and communicate it to the nearest magistrate. Ram Laiwani v. State, 1981 Cr.L.J 97, 100 (Del HC); The question whether the guidelines laid down in Nandini Satpathy case were in the nature of binding direction was raised before the Delhi High Court. After considering the observations in Nandini and Miranda, the High Court felt that subject to a few exceptions, S. 162 CrPC and Ss. 24 to 30 of the Evidence Act do take care of the constitutional rights by excluding from evidence all self-incriminatory statements whether voluntary or otherwise and therefore there was no need to give any directions. The High Court thought that the main concern of the Supreme Court in Nandini case is to sensitize the police to humanism; and therefore it made it prudent for the police to allow a lawyer where the

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accused wants to have one at the time of interrogation, if it wants to escape the censure that its interrogation is carried on in secrecy by physical and psychic torture. The High Court held that the Supreme Court was not laying down a binding direction but only prudent policy for the police. During investigation, the statements of witnesses should be recorded as promptly as possible. Unjustified and unexplained long delay on the part of the invesatiug officer in recording a statement of a material witness during the invesliga1ion may render the evidence of such witness unreliable. Considered in the light of surrounding circumstances, the inordinate delay in registration of FIR‘iiirther delay in recording the statements of material witnesses, was held to case a cloud of suspicion on the credibility of the entire warp and woof of the prosecution story. However the question of delay in examination of a witnesses during investigation is material only if it is indicative and suggestive of some unfair practice by the investigating agency for the purpose of introducing a got-up witness to falsely support the prosecution case. The word statements under S. 161 includes both oral and written The signs and gestures. The words in Ss. 161 and 162 mean all that is stated by a witness to a police officer or officers during the course of investigation. 162. Statements to police not to be signed: Use of statements in evidence. :- (Bare Act) Object—The object of Section 162 is to impose a general bar against the use of a statement made before the police except for the limited purpose set out in the proviso.‘ It was intended to protect the interest of the accused. However, under this section bar is only in relation to the statement made before the police. If the statement is made before an officer, who is not a police officer, viz, an officer of the Railway Protection Force making an inquiry under Section 8(1) of the Railway Property (Unlawful Possession) Act, 1966, the ban imposed und this section shall not come into operation. The ban imposed by Section 162 against the use of a statement of a witness recorded by the police during investigation appears sweeping and wide. But the language of Section 162 is not explicit or specific enough to extend the prohibition to the use of wide and special powers of the court to question a witness, expressly and explicitly given by Section 165 of the Evidence Act in order to secure the ends of justice. The bar created by Section 162 regarding inadmissibility in evidence of the statements made to police officer during investigation does not only apply to statements of witnesses but also to statements of the accused made to the police officer. Under this section only witnesses on behalf of the prosecution could be contradicted by reference to their statements made to the police, and not court witnesses or defence witnesses. The practice of investigating officer himself recording a dying declaration ought not to be encouraged. However such dying declaration is not altogether excluded. It may be used depending upon its veracity. Statement.—The word ‗statement‘ in this section means narration addressed to a police officer by some other person. It includes both oral and written statements. A statement not only includes what is expressly stated therein but also what is necessarily implied therein. Signs and gestures

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also amount to statements. It does not include the record of a search made by the police or signatures taken on blank paper for the purpose of comparison.‘ Tehsildar Singh AIR 1959 SC 1012 Santa Singh v State of Punjab AIR 1956 sc 526] A statement made to a third person in the presence of a police officer is not within this section. Every statement made to a person assisting the police during the course of investigation cannot be treated as a statement to the police. Thus, if after arranging the identification parade the police leave the field and allow the identification to be made under the sole direction of the pancha witnesses, the statements of the identifying witnesses made to the pancha witnesses would be outside the purview of Sec. Ram v jS. Chauhan AIR 1975 sc 667 A statement of a witness recorded by the police during the inquest under Sec. 174 of the code will be within the inhibition of Sec. Statement made to a police officer.—This section applies only to a statement made to a police officer in the course of investigation. A statement made to a third person in the presence of a police officer is not within this section. It includes a confession made to a police officer in the course of an investigation, and any other statement of the accused person. This section does not bar a statement made in a letter written to the police officer. Sec. 162(1) Proviso.—In Bhagwan Das v. State of (N.C.T.) of Delhi (2011) 3 Cr. L.J. 2903 (S.C.)., the mother of accused gave statement to police that her son had told her that he had killed deceased. But when she was confronted with this statement before the court she resiled from her earlier statement and therefore was declared hostile. It was held that her subsequent denial in court is not believable because she had afterthoughts and wanted to save her son (the accused) from punishment. Her Statement to police can be taken into consideration in view of proviso to section 162(1) Criminal Procedure Code. It is duty of the court to separate grain from chaff. Further maxim („falsus .n uno falsus in omnibus‟ false in one particular, false in all) has no application in India. In the course of an investigation. — Sec. 162 only puts restrictions on the use of statements made to an investigating officer ‗during the course of investigation‘. It does not say that every statement made during the period of investigation comes within the ambit of its prohibition. The FIR. is not a statement within the meaning of this section because it is a statement made before the investigation begins .It is only a statement made in the course of an investigation that is prohibited from being used as evidence. The statement made by witnesses to a police officer in the course of investigation can be used for the purpose of contradicting the witness in the manner provided by Section 145 of the Evidence Act but it cannot be used as substantive evidence. The first information report about the commission of a crime is not a statement within the meaning of this section because it is a statement made before the investigation begins and is, therefore, admissible in evidence, The words ‗in the course of‘ in the context of this section import that the statement must be made as a step in a pending investigation to be used in that investigation and do not refer to the period of time between beginning and end of investigation.

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Statement reduced into writing. — A police officer to whom a statement is made by any person in the course of investigation is not bound to reduce such statement into writing. But if he writes it down, he must write the statement of such witnesses separately. The person making the statement cannot be required to sign it. State of Rajasthan v Teja Ram (1999) 3 SCC 507 :- Sec. 162(1) lays down that ―no statement made by any person to a police officer in the course of an investigation, shall, if reduced to writing be signed by the person making it.‖ However, if an investigating officer has by mistake obtained the signature of the accused on seizure memo in violation of Sec. 162(1), it shall not vitiate the whole proceedings State of UP v MK Anthony AIR 1985 SC 48 If the 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 evidence Use of Statements Made to the Police in Evidence [Sec. 162) :- The statements given to the police during investigation cannot be used as substantive evidence; they can only be used for raising suspicion against credibility of the witness. Sec. 162 can be used for a three-fold purpose, namely: (i) It may be used by the defence for contradicting the prosecution witness. (ii) It may be used by the prosecution for contradicting the prosecution witness with the permission of the court. This might be desirable if a prosecution witness is won over by the other side. (iii) The witness whose previous statement is so used may be re-examined by way of an explanation, if necessary. However, the restrictions on the use of previous statements of witnesses are unnecessary in any other proceeding. The ban imposed by Sec. 162 appears sweeping and wide; but its language is not explicit or specific enough to extend the prohibition to the use of wide and special powers of the court to question a witness, expressly and explicitly given by Sec. 165 of the Evidence Act in order to secure the ends of justice [Raghunandan v State of UP AIR 1974 SC 463]. In general, a statement made to the police (by way of F.I.R. or recorded during police investigation) cannot be considered as substantive evidence i.e. as evidence of facts stated therein. Because it is not made during trial, it is not given on oath, nor is it tested by crossexamination. If the person making any such statement to the police subsequently appears and gives evidence in court at the time of trial, his former statement could, however, be used to corroborate or to contradict his testimony (if the statement is by way of FIR. or it is not made during police investigation), or to contradict his testimony, if it is a statement made during police investigation. It may be noted that the evidentiary value of the F.I.R is far greater than that of any other statement recorded by the police during investigation.

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Sec. 162(1) lays down that no such statement or any record of such a statement, whether in a police diary or otherwise, or any part of such statement or record, be used for any purpose other than those stated in the section at any inquiry or trial in respect of any offence under investigation at the time when such statement was made. The proviso to Sec. 162(1) provides that such statement, if duly proved, may be used by the accused or by the prosecution (with the permission of the court) to contradict such witness (maker of the statement), when called for the prosecution in an inquiry or trial, in the manner provided by Sec. 145 of the Evidence Act; and when it is so used, any part thereof may also be used in the re-examination of such witness, but for the purpose only of explaining any matter referred to in his cross-examination. The right guaranteed to an accused under Sec. 162 is total and absolute. Sec. 162 strikes an equitable via media. On the one hand, it enacts an absolute bar against statements made before a police officer being used for any purpose whatsoever (viz, inadmissible in evidence), and on the other hand, it enables the accused to rely on it for the limited purpose of contradicting a witness, by drawing his attention to parts of the statement intended for contradiction. Such a statement cannot be used for corroboration of a prosecution/ defence witness. Thus, there is a general bar against its use being made, subject to a limited exception in the interests of the accused. This being so, it is clear that the exception cannot override the general rule itself. Statements Can Only be Used for Contradiction: Explanation to Sec. 162 :- Sec. 162 implicitly prohibits the use of the statements for the purpose of coroboration or seeking assurance for prosecution story. That is based on the assumption that the police cannot be trusted for recording the statements correctly and that the statements cannot be relied on by the prosecution for the corroboration of their statements as the statements recorded might be of self serving nature. The statement can be used for the purpose of contradiction. ‗Contradiction‘ means the setting up of one statement against another and not the setting up of a statement against nothing at all . If a witness in a court says, ―I saw A tunning away,‖ he may be contradicted by his statement to the police ―I did not see A running away‖. But the Explanation to Sec. 162 makes it clear that a significant omission (to state a fact or circumstance in the statement) may in the particular context amount to contradiction. Tehsildar Singh AIR 1959 SC 1012 Statement can be used for the purpose of contradicting a ‗prosecution witness‘. The statement is not to be used for the purpose of cross-examining a witness because it enables the accused to ‗elicit‘ what the witness stated before the police .statement cannot be used for contradicting a court witness or defence witness. Laxman Kalu v State of Maharashtra AIR 1968 SC 1390 When a person whose statement has been recorded under Sec. l61, is not examined as a prosecution witness but as a witness in defence, the proviso to Sec. 162(1) does not come into play at all, and the prosecution cannot be allowed to confront such a defence witness with his previous statement recorded during investigation under Sec. 161

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Baladin v State of UP AIR 1956 SC 181 Significance of material contradictions may not be the same in every case. Ordinarily, the contradictions between the statements are valuable material in favour of the accused for the purposes of challenging the reliability of the witness. However, where the police records are tainted to favour the accused, the court would not attach same significance to the contradiction and omissions contained in such tainted record. In such a case, the court should carefully weigh the evidence given by the witness in court on its own merits only. A statement (or part) which is not reduced into writing by a police officer cannot be used for contradiction. However, Explanation to Sec. 162 provides that an omission to state a fact or circumstance in the recorded statement may amount to contradiction, if it appears to be significant and otherwise relevant having regard to the Context in which such omission occurs; whether it does or not will be a question of fact Every omission does not amount to contradiction unless that omission vitally touches the very factum which is required to be proved by the prosecution Tehsildar Singh v State of UP [AIR 1959 SC 1012], held that only those omissions in the police statement of a prosecution witness can be used for the purpose of contradiction as can be deemed by necessary implication to be included in the express recorded statement. No other omission can be permitted to be used as a contradiction. The court rejected the other view viz, view that omissions must be in regard to the important features of the incident in the statement made before the police. It said that this view introduces an uncertain element, namely, ascertainment of what a particular witness would have stated in the circumstances of a partiular case and what the police officer should have recorded. Such a construction is not permisib1e as what was not stated could go in on the sly in name of contradiction. The apex court opined that though a particular statement is not expressly recorded, a statement that can be deemed to be a part of that expressly recorded can be used for contradiction, not because it is an omission strictly so called but because it is deemed to form part of the recorded statement. As to the meaning of ‗contradiction‘, it has been stated thus ―the statement befote the police officer and the statement in evidence before the court are so inconsistent and irreconcilable with each other that both of them cannot co-exist, it may be said that one contradicts the other‖. The apex court gave three illustrations to explain when an omission amounts to contradiction: (a) When a recital is necessarily implied from the recital/recitals found in the statement — In the recorded statement before the police, the witness states that he saw A stabbing B at a particular point of time, but in the witness box he says that he saw A and C stabbing B at the same point of time; in the statement before the police the word ‗only‘ can be implied i.e. the witness saw only A stabbing B. Thus, the omission of the word ‗only‘ in this case amounts to contradiction,

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(b) A negative aspect of a positive recital in a statement — In the recorded statement before the police the witness says a dark man stabbed .B, but in winess box he says a fair man stabbed B; the earlier statement must be deemed to contain the recital not only that the culprit was a dark complexioned man but also that he was not of fair complexion. Thus, the omission in the earlier statement would amount to contradiction. (c) When the statement before the police and that before the court can‟t stand together — The witness says before the police that A after stabbing B ran away by a northern lane, but before the court he says that he ran towards the southern lane, as he could not have run away towards the northern lane as well as southern lane, if one statement is true, the other must be necessarily false. Thus, this also amounts to a contradiction.

Proviso to sub-section (1).—Proviso to sub-section (1) enacts that a statement falling under this section can be used for a limited purpose under the circumstances specified therein. Before proviso may apply the following three conditions must be fulfilled— (i) statement must have been reduced to writing; (ii) the witness must have been called for the prosecution; and (iii) the written statement must be duly proved. If these conditions are not fulfilled, a statement made to the police in the course of investigation cannot be proved even though the person who made the statement is dead, unless the statement comes within Section 32(1) of the Evidence Act. Where a witness is called by the defence his previous statement cannot be used either by the prosecution or by the defence for the purpose of contradicting or corroborating him under the provisions of the Evidence Act. If duly proved.—There is no presumption ‗of genuineness of the statement‘ reduced to writing. They cannot be admitted in evidence straightway but they must be duly proved. They can be duly proved by eliciting admission from witnesses during cross-examination, or through the investigating officor when he is in the witness-box or by calling someone who was present when the record was made.5 Statement cannot be proved by oral evidence of the police officer, his answers must be checked up with his diary. Omission. — Only those omissions in the police statement of a prosecution witness can be used for the purpose of contradiction as can be deemed by necessary implication to be included in the express recorded statement. No other omission can be permitted to be used as a contradiction, however important it might be. In Gopal v. Subhash, the question was whether omission to state a fact amounts to contradiction. In this case some prosecution witnesses stated before police that all the accused persons exhorted to commit offence, whereas other prosecution witnesses did not make any such allegation as

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regards alleged exhortation on the part of all the accused. It was held that omissiqn to state a fact on their part amounts to contradiction and common object of unlawful assembly cannot be inferred. 163. No inducement to be offered.:- (1) No police officer or other person in authority shall offer or make, or cause to be offered or made, any such inducement, threat or promise as is mentioned in section 24 of the Indian Evidence Act, 1872 (1 of 1 872). (2) But no police officer or other person shall prevent, by any caution or otherwise, any person from making in the course of any investigation under this Chapter any statement which he may be disposed to make of his own free will: Provided that nothing in this sub-section shall affect the provisions of sub-section (4) of section 164. 164. Recording of confessions and statements.:Statement u/s 164 Cr. P.C (Confession) A Police Officer should be careful to see that the witnesses who have come forward with certain statements on which he has built the case will remain intact at the time making depositions in Court. In India, there are so many factors working in favour of the accused. They ‗will try to win over the witnesses by all the means at their disposal and will like the witnesses to change their stories subsequently to save the accused . The witnesses too, have no such scruples as to stick to truth. Civic sense and religious scruples have net so much developed that the witness will always stick what he honestly believed once to be true, He can be easily molded to what ever version one likes under the allurement of money or other material advantages temporary gain. Therefore, there is nothing wrong if a Police Officer takes advantage S. 164 Cr.P.C. and gets the statements of witnesses recorded under that section. Object of Section 164: The object of recording of statements U/s 164 of the Cr. P.C. is of twofolds, namely confession of an accused is to be recorded U/s 164 of the Cr. P.C. after giving due caution to him. It also prescribes the law for recording statements of an informant witness of a criminal case. It is to be borne in mind that the recording of statement of confessions U/s 164 of the Cr. P.C. is a procedure of investigation. In course of investigation of a case, a police officer investigating the same statement of an accused as the case may be U/s 164 of the Cr. P.C. are may apply for recording of statement of witnesses or confessional used for contradiction or corroboration of the statements of witnesses on oath before the court during trial. Scope.—This section is not exhaustive and does not limit the generality of s. 21 of the Evidence Act as to the relevancy of admission. The effect of this section, when read with ss. 24, 25, 26 and 29 of the Evidence is that

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(1) a confession made by an accused person to a police-officer is inadmissible in evidence, (2) if a person in police custody desires to make a confession ,he must do so in the presence of a Magistrate (but not before a police officer having magisterial power) (3) a Magistrate will not record it unless he is, upon inquiry from the person making it, satisfied that it is voluntary, (4) when the Magistrate records it, he shall record it in the manner provided for in this section. 5. only when so recorded the confession becomes relevant and admissible in Evidence. The statement can be recorded only by a Judicial Magistrate A Magistrate has the discretion to record or not to record a confession. If he elects to record it, this section requires him to comply with four provisions, e.g., 1. It should be recorded and signed in the manner provided in s. 281 and then forwarded to the Magistrate concerned, 2. he should give a statutory warning that the accused is not bound to make a confession, 3. he should be first satisfied that it is being made voluntarily, and 4. he should add memorandum at the foot of the confession. Confession to unauthorised person.—The Supreme Court has stated that it is not necessary that a confession should be made to an authorised person only. The court said; Any person to whom a confession has been made can give evidence of it in the court regarding confession. If the confession made to a Magistrate, same it has to be recorded in the manner prescribed by law. If it is made to any other person , the court has to consider whether evidence of that person can be believed and this depends unon the credibility of the witness eivin the evidence in the court. Authority for recording confession.—The authority under the Act which enjoys the power of recording confessions and statements is only a iudiciai rnagistrate .A police ofiicer cannot exercise this power even if the authority to do so has been conferred on him outside the code. The fact that CJM who recorded the statement had not nominated the judicial magistrate of the taluk where the accused was locked up in sub- jail to record statements and instead had nominated another judicial magistrate for the purpose was held to be not sufficient to vitigate proceding of the confession. Statement—The Privy Council has ruled that a statement made under this section can never be used as substantive evidence of the facts stated, but it can be used to support or challenge evidence given in Court by the person who made the statement (s. 157 of the Indian Evidence Act). The statement made by an approver under this section does not amount to corroboration in

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material particulars which the Courts require in relation to the evidence of an accomplice . An accomplice cannot corroborate himself tainted evidence does not lose its taint by repetition. Apart from the suspicion which always attaches to the evidence of accomplice, it is unsafe to rely implicitly on the evidence of a man who has deposed on oath to two different stories. A statement made under this section which not amount to a confession can be used against the maker as an admission within the preview of ss. 18 to 21 of the Indian Evidence Act, 1872. The Supreme Court‘ has approved the following observations Nagpur High Court in Parinanand v. Emperor as lying down the law correctly ―If a statement of a witness is previously recorded under s. 164, it leads to an inference that there was a time when the police thought the witness may change but if the witness sticks to the statement made by him throughout, the mere fact that his statement was previously recorded under s. 164 will not be sufficient to discard it.‘ The Court, however, ought to receive it with caution and if the other circumstances on record which lend support to the truth of the evidence of such witness, it can be acted upon. In Ram Kishan v. Harmit Kaur, ‗supreme Court has said: A statement under s. 164 is not substantive evidence. It can be used to corroborate the statement of a witness. It can be used to contradict witness. In Balak Ram’s case the Supreme Court laid down that statement of witnesses recorded under the present section should be approached with caution because such witnesses feel tied to their previous statement and prosecution for .peejury is the price for freedom to depart from the earlier version. Section 164, Cr. P.C. uses and refers to both the expressions ―Confession and Statements‖. The distinction between statements and confessions was kept in mind while enacting s. 164, Cr. P.C. It is well settled that all confesions are statements, but all statements are not confessions. May Record any confession or statement’.—This clause authorizes the Magistrate to record the statement of a person or his confession, no matter whether he possesses jurisdiction in the case. If he does not possess such jurisdiction sub-section 6 will apply. If the Magistrate is himself a witness in the case it is not proper in his part to record the statement of a prosecution witness under section 164. The word statement‖ is not limited to a statement by a witness, but includes ,that made by an accused and not amounting to a confession.The statement of a witness made behind the back of the accused cannot be used as evidence against hiThe only object in recording such statement is to obtain a hold over the witness.A confession is an admission made at any time by a person charged with an offence stating or suggesting the inference that he has committed the offence. A declaration is not a confession if it is not made with an animus conjitendi, that is,with an intention to confess or if it does not amount to an admission of facts from which guilt is directly deducible.

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The acid test which distinguishes a confession from an admission is that where conviction can be based on the statement alone, it is a confession and where some suppmentary evidence is needed to authorise a conviction, then it is an admision. Notwithstanding the use of the word ―may‖, all confessions should be recorded. ―Recording‖ means writing down the confession and not merely filling a written confession written by the accused while in the police custody and admitted by him to be correct when read over to him by the Magistrate. A confession made to a Magistrate and not recorded by him cannot be proved at the trial of the person making the confession by tendering the oral evidence of the Magistrate. Procedure of Recording Statement under Sec- 164 :- The mode of recording a confession is not the same as in case of recording a statement . The mode of recording confession is much more elaborate so as to ensure that free and voluntary confessions alone are recorded under the section. The provisions of Sec. 164 is a safety valve meant to muzzle involuntary confession. The object of S. 164 read with the ―Judges Rules‖ i.e. the Executive instructions of the High Court, is to find whether the statement sought to be made by an accused is perfectly voluntary or not. Therefore the act of recording confession under S. 164 is a solemn act, and in discharging his duties under the section, the magistrate must take care to see that the requirements of law under Sec. 164 must be fully satisfied. An analysis of the section will bring out the following points— (1) A confession or a statement can be recorded only by a metropolitan magistrate or a judicial magistrate. The proviso to sub-sec. (1) makes it clear that a police officer on whom the powers of a magistrate have been conferred by any law, will not be considered competent to record confession under S. 164. If any executive magistrate or any other magistrate not empowered under sub-sec. (1) records a confession, the record of the confession cannot be put in evidence, and further no oral evidence of the magistrate to prove the confession in such a case shall be admissible. (2) Confessions or statements can be recorded under S. 164 either in the course of an investigation, or at any time afterwards before the commencement of inquiry or trial. Even if the confession is recorded after the commencement of enquiry or trial, it can still be used in evidence; but sec. 164 would not relate to such a confession and the same would be recorded by the trial court or the court making the inquiry. (3) Before recording any such confession, the magistrate is required to explain to the person making the confession that— (i) he is not bound to make such a confession, and (ii) if he does so it may be used as evidence against him. These provisions contained in S. 164(2), if administered in the proper spirit, are most salutary. They should not degenerate into idle formalities. The warnings set forth in S. 164 are merely illustrative and not exhaustive. It is also very necessary that the magistrate should disclose his identity to such person so as to assure him that he is no longer in the hands of the police. It has been held that if after the warning, the recording of confession

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is postponed to another day or if the recording continues on another day, a fresh warning is necessary before a confession or part of a confession is recorded on the other day. (4) Sub-section (2) of S. 164 further enjoins the magistrate not to record any such confession unless, upon questioning the person making it, he has reason to believe that it was made voluntarily. Failure to convey the caution invalidates the confession and renders it inadmissible in evidence [Kehar Singh AIR 1989 SC 683]. The record must show the warning given to the accused. It would not be enough to state ―after due warning‖. Where warning has actually been given but has not been recorded, the Magistrate may be examined on the point . Shivappa v State of Karnataka, 1995 SCC (Cri.) 3231. :- The Magistrate must satisfy himself that no pressure or force used on the accused. Chandran v State, 1978 CrLJ 1693 (Sc):- The expression reason to believe‖ imports a very high degree of expectation wrought by reason, a satisction fast-rooted in terra firma, free from doubt as to the truth of the fact perceived and believed. Shankaria v State of Rajasthan, 1978 CrLJ 1251 SC A confession recorded under Sec. 164 becomes ‗voluntary‘ when it is made by the accused out of repentance after due caution with reasonable time for reflection in order to remove completely any threat or torture, inducement or promise by the arresting agency and when it precludes the possibility of tutoring. For the exercise of jurisdiction to record confession under S. 164, it is a sine qua non that the magistrate must have ―reason to believe that the confession is being voluntarily made‖The following directions are normally followed by magistrates in order to ensure that a confession is made voluntarily— (a) After giving warnings to the person making a confession under sub-sec. (2), the magistrate should give him adequate time to think and reflect. Normally such person, if coming from police custody, is sent to jail custody at least for a day before his confession is recorded. It may ho be ut there is no statutory provision in S. 164 or elsewhere, or even nn executive ‗direction issued by the High Court that there should be an interval of 24 hours or more between the preliminary questioning of the accused and the recording of his confession. How much time for reflection should be allowed to an accused person before recording his confession, is a question which depends on the circumstances in each case. (b) Every enquiry must be made from the accused as to the custody from which he was produced and as to the custody to which he was to be consigned and the treatment he had been receiving in such custody in order to ensure that there is no scope for any sort of extraneous influence proceeding from a source interested in the prosecution still lurking in the accused‘s mind. If marks of injuries are found on the person of the accused, he should be asked how he received them. (c) The accused should be assured, in plain terms, of protection from any sort of apprehended torture or pressure from such extraneous agents as the police or the like in

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case he declines to make a statement. As a further safeguard to ensure that the confession is voluntary, sub-sec. (3) prohibits a remand to police custody of the accused if he expresses his unwillingness to make the confession when produced before the magistrate; this does not of course mean or imply that remand has to be made if the accused wants to confess. It has been held that after confession the accused, as a matter of rule, should be sent to judicial lock-up and on no account be returned to police custody. (d) The accused should particularly be asked the reason why he is going to make a statement which would surely go against his self-interest in course of trial and he should further be told in order to remove any lurking suspicion in his mind that even if he contrives subsequently to retract the confession, it will be evidence against him still. The magistrate‘s failure to ask why the accused wanted to confess was however held to be a noncompliance of form curable under S. 463. (e) The magistrate recording the confession must appreciate his function as one of a judicial officer and he must apply his judicial mind to the task of ascertaining that the statement the accused is going to make is of his own accord and not on account of any influence on him. The magistrate must put questions to the accused in order to ascertain the volentariness of the confession, and the record of the confession must show that questions were so asked to ascertain voluntariness. It would be necessary in every case to put the questions prescribed by the High Court Circular, but the question should not be allowed to become a matter of mere mechanical enquiry and no element of casualness should be allowed to creep in. (f) A confession must be ―perfectly voluntary‖ otherwise the court should reject it. The term ―voluntary‖ means one who does anything of his own free will A magistrate recording confession must make inquisitorial enquiry and make adequate exercise to ascertain the impelling reason of the prisoner to confess his guilt. (g) To adjudge voluntariness, the magistrate should take note of —‗ two basic factors. First the existing mental condition of the prisoner. Secondly, the magistrate must satisfy the court by documentary oral evidence that he had fully exercised his judicial mind to get the real motive or the impelling factor which prompted the prisoner to make the confession.‘ (h) There is no requirement that the magistrate should make a separate statement of reasons for believing that the confession was made voluntarily. It was sufficient that his statement was recorded in the memorandum. It was further held that it was illegal for the trial court to compare the confessional statement with the record of Accused‘s statement in the police case diary. Lokeman shah versus state of west Bengal AIR 2001 SC 1760 Voluntariness is the essence of the confession This is the material substance behind any connfession. The rest part of the requirements under s. 164 relates to the form. Where the Magistrate failed to ask any question to the accused whether he was under any inducement from police it

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indicated that the Migistrate failed in searching voluntariness before recording the confession and thus the very essence of the confession was not made out. (5) Sub-section (4) requires that a confession shall be recorded in the manner provided in S. 281 for the recording of the examination of an accused person. Accordingly, the whole of the confession, including every question put to the accused and every answer given by him shall be recorded in full. The record shall, if practicable, be in the language in which the accused gave the confession or if that is not practicable, in the language of the Court. The record shall be shown or read to the accused, or if he does not understand the language in which it is written, shall be interpreted to him in a language which he understands, and he shall be at liberty to explain or add to his answers. The confession so recorded shall be signed by the accused person making the confession. There is no provision in S. 281 for administering oath to an accused. Therefore no oath can be administered to the accused who is making a confessional statement before a magistrate; and if oath in fact is administered it will be contrary to the provisions of S. 281 and as such the confessional statement would lose its evidentiary value. (6) Section 164 does not mention the place and time of the recording of a confession. However it has been held that the magistrate should record the confession in open court and during court hours. (7) The magistrate recording a confession or statement under S. 164 is required to send the record directly to the magistrate by whom the case is to be inquired into or tried. Such record is admissible in evidence even though the magistrate making the record is not called as a witness to formally prove it at the trial of accused person. Because, according to S. 80 of the Evidence Act, the Court is required to presume—that the record is genuine, that any statement as to the circumstances under which it was made are true and that such confession or statement of the accused was duly recorded. (8) Questions may arise to the legal consequences of non-compliance with the provision of sec 164.. The magistrate recording the confession. may not belong to the class of magistrates mentioned in S. 164(1); the person making the confession might not have been cautioned as required by S. 164(2); or the magistrate might have failed to record the confession or the statement in accordance with S. 164(4) i.e. not in the manner provided by S. 281; or the magistrate might have failed to make a memorandum as required by S. 164(4). Section 463 is designed to cure to some extent the defects and irregularities in the recording of the confession or other statement of the accused under 5. 164. (9) Section 164 is applicable to confessions and statements recorded by magistrates during the course of an investigation or at any time afterwards before the commencement of the inquiry or trial. If the confession is recorded by a magistrate when no investigation had begun, the mandatory procedure laid down in S. 164 is not applicable in such a situation. In a case where the accused after committing murder went to a magistrate and made a confessional statement and the magistrate recorded the statement and the accused signed it, it was held

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that though the procedure laid down in S. 164 was not followed, yet as no investigation of crime registered against the accused was in progress, the confession was admissible in evidence. There is nothing in the language of S. 164 to enable us to go to the extent of converting a mode of performance of duty of certain magistrates during a certain period into a disability of all those who may hold magisterial office to give evidence of confessional statements even other than those covered by S. 164. However, where the accused is induced to make a statement or confession to a person other than a magistrate or the police merely as a colourable pretence for the purpose of avoiding the letter of the law, such a statement or confession must be held to have been made ―in the course of an investigation‖ within the meaning of Ss. 162 and 164, and it must be rejected, as in its spirit it is in violation of the provisions of those sections.

Thus, the whole confession, including every question put to the accused and every answer given by him shall be recorded in full. The record shall, if practicable, be in the language in which the accused gave the confession or if that is not practicable, in the language of the court. The record shall be shown! read/ interpreted to him, and he shall be at liberty to explain or add to his answers. If the confession is properly recorded and is otherwise free from any infirmity it cannot be discarded merely on the ground that it was recorded not in the open court but in the chamber. Confession should be recorded in open court and during court hours (though Sec. 164 does not mention the place and time of recording of confession) unless there are exceptional reasons to the contrary. Ammini v State of Kerala, 1998 CrLJ 481 (SC) Where the confession is recorded by a Metropolitan Magistrate, then in view of Sec. 164(4) read with Sec. 281(1), it shall be enough if he makes a memorandum of the substance of the confession in the language of the court and signs the same. In practice, the M.M. prefers to follow the elaborate procedure of questions and answers for the recording of confessions under Sec. 164. In the absence of any requirement that separate reasons were required to be recorded for believing that the confession was made voluntarily, it was not proper for the trial court to doubt its genuineness on the ground that reasons were not recorded separately though the satisfaction was recorded in the memorandum. Dhananjaya Reddy v State of Karnataka, 2001 CrLJ 1712 (SC)]. However, a mere failure to get the signature of the person making the confession may not be very material if the making of such statement is not disputed by the accused, but in cases where the making of the statement itself is in controversy, the omission to get the signature is fatal . Power of Recording Magistrate [Sec. I 64(5)-(6)]:- Any statement (other than a confession) made under sub-sec.(1) shall be recorded in the manner provided in the Code (Secs. 272-280) for the recording of evidence as is, in the opinion of the Magistrate, best fitted to the circUmstances

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of the case [Sec. 164(5)]. Further, the Magistrate shall have power to administer oath to the person whose statement is so recorded. Administering of oath is barred in the recording of a confessional statement by the clear provision of sub-sec.(5). The confession should be recorded in the manner provided for recording the statement of an accused and not in the manner provided for recording of evidence by administering an oath. If it is so recorded, it loses its character of a confessional statement in so fàr as the maker is concerned Joginder Nayak v State of Orissa (2000) 1 SCC 272 Though the Magistrate is empowered to record the statement of any person during the course of the investigation or before the inquiry/ trial, the apex court has opined that the Magistrate is under no obligation to record the statements of strangers, otherwise every Magistrate‘s court will be further crowded with a number of such intending witnesses brought up at the behest of accused person Effect of Non-Compliance with the Provisions of Sec. 164:- The special procedure laid down under Sec. 164 is mandatory. However, Sec. 463 of the Code lays down that if any of the provisions of Sec. 164 have not been complied with by the Magistrate recording the statement, the court may (notwithstanding anything contained in Sec. 91, Evidence Act) take evidence in regard to such non-compliance and may, if satisfied that such non-compliance has not injdred the accused in his defence on the merits and that he duly made the statement recorded, admit such a statement. Sec. 91 of the Evidence Act provides that if any matter is required by law to be reduced to the form of a document (viz, recording of a confession/statement under Sec. 164, Cr. P. C.), no evidence shall be given in proof of such matter except the documents itself. Sec. 463 permits oral evidence by the Magistrate to prove that the procedure laid down in Sec. 164 had actually been followed, where the record which, ought to show that, does not do so . The Magistrates failure to ask why the accused wanted to confess has been held to be a noncompliance of form curable under Sec. 463 [Kehar Singh s case]. Where the Magistrate lacks jurisdiction to record a confession under Sec. 164 (viz, an Executive Magistrate) and he records it, it cannot be said that the accused duly made the statement under Sec. 164; this basic defect cannot be curd by Sec. 463 [State of UP v Singhara Singh case]. The Law Commission of India in its 37th Report noted that ―the provisions contained in Sec. 164, if administered in the proper spirit, are most salutary. They should not degenerate into idle formalities.‖ From a perusal of the various judgments of the higher courts in India, it is clear that the procedural or technical non-compliance would not make a confession/statements inadmissible, if there is a ‗substantive‘ compliance with the provisions of Sec. 164. It may be noted that the Magistrate is under on obligation to record a confession with all the formalities in this section only when it is made to him in the course of investigation and not otherwise

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164 A. Medical examination of the victim of rape. – Bare Act reading 165. Search by police officer. Search by Police Officer [Secs. 165-166] This Section authorizes a police officer to make a search without warrant during investigation. However there are certain pre-conditions which must be fulfilled before a search may be made 1. Search may be necessary for investigation. 2. The offence must be such as the police officer is authorized to investigate i.e. it must be a cognizable offence. 3. Reasonable grounds must exist for believing that the thing required will be found in a place. 4. There would be undue delay in getting the thing in any other way (viz, by getting a search warrant from a Magistrate). 5. Grounds of belief regarding necessity of search must be previously recorded, otherwise the search will be illegal [State of Rajasthan v Rahman AIR 1960 SC 210]. The power under Sec. 165 can be exercised only by a police officer in charge of a police station or any other officer authorized to investigate [sub-sec.(1). He shall, if practicable, conduct the search in person or he may require a subordinate officer to conduct it (if he is unable to do so and there is no other person competent to make the search present at the time. He shall deliver to such subordinate officer on order in writing, specifying the place and thing to be searched [subsecs.(2)-(3)]. The officer has no power to make a search beyond the local limits of his own circle [sub-sec.(l)]. But in certain cases a search within the limits of another police station is now authorized (see Sec. 166(3) 1. The Power to search a place under this section can be exercised only by a police officer in charge of a police station or other police officer authorised to investigate into any offence and making such investigation. Such police officer may however, instead of conducting the search himself, require a subordinate officer to conduct the search in the circumstances mentioned in sub-sec. (3) and thereupon the subordinate officer shall have authority to conduct the search. 2. The search under this section must be for particular things or documents, or specified materials, necessary for the purposes of the investigation. The section does not permit a general search. 3. The police officer must have reasonable grounds for believing that— (a) any specific thing necessary for the purposes of the investigation may be found in the place within the limits of his police station, and

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(b) such thing, in his opinion, cannot otherwise be obtained without undue delay i.e. in his opinion it would be too late before a search warrant is obtained from a magistrate. The section gives power to the police officer to search without warrant if he has ―reasonable grounds for believing‖ and not just ―reasonable suspicion‖ as in S. 41(1)(a). The expression ―reasonable grounds for believing‖ is equivalent to ―has reason to believe‖ in S. 93. It means a belief based on some definite facts. This provision is intended to ensure that the searches by the police officers are not arbitrary and are genuinely required in cases where there is no time to approach a magistrate for a searchwarrant. 4. The recording of reasons is an important step in the matter of search and to ignore it is to ignore the material part of the provisions governing searches. If the reasons are recorded in the case-diary, that would not amount to due compliance with the mandatory provisions of the section as the accused in that case would not be able to claim a copy of the extract of the case-diary. The non-recording of the reasons for search would make the search illegal. An illegal search may entail punishment of the provisional officer who may be asked to pay compensation to the person whose house has been searched. 5. Sub-section (5) requires that the copies of record made under sub- sec. (1) or sub-sec. (3) shall be sent forthwith to the nearest magistrate. This would ensure that these records are not conveniently fabricated after the search to enable the police to justify their conduct suitably. Further, the subsection requires the magistrate to furnish, free of cost, to the occupier of the place searched a copy of the entire record so received by him. The occupier thereby gets an adequate opportunity to satisfy himself as to the legality of the search, and in case the search is found to be illegal or improper, the office copy of the record would facilitate the proof of the illegality or impropriety of the search in any proceedings taken against the erring police officer. 6. Sub-section (2) directs that the police officer, as far as practicable, is to conduct the search in person. However the rule is to be interpreted reasonably. Where a police officer remained outside the house while the search was being made inside by some subordinate officer, the search was not held to be illegal. Application of Audi alteram partem in Search Proceedings;- During investigation, a police officer is empowered to conduct search and seize incriminating articles. He can make search for the reasons to be recorded in writing without any warrant from the court or without giving the prior notice to any one or any opportunity of being heard. The basic objective of such a course is to preserve secrecy in the mode of investigation lest the valuable evidence to be unearthed will be either destroyed or lost. Moreover, under the Code, the accused has no right to have any say as regards the manner and method of investigation. If he had such right, it would defeat the ends of justice and make the provisions of law relating to the investigation as lifeless, absurd and selfdefeating [UOI v WN Chadha AIR 1993 SC 1082].

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The rule of audi alteram partem means that no one shall be condemned unheard. It is a of justice and its application is excluded where the rule itself leads to injustice. ―It is true since the right to prior notice and opportunity of hearing arises only by implication from duty to act fairly (‗fair play in action‘), it may equally be excluded where, having regard the nature of the action to be taken, its object and purpose and the scheme of the relevant statutory provision, fairness in action does not demand its implication and even warrants its exclusion [Maneka‟s Gandhi case AIR 1978 SC 597]. Consequences of Irregularities or Illegalities in a Search:- The provisions of Sec. 165 (and Sec. 100) are mandatory and not directory and its requirements must be complied with before a police officer can validly institute a search. However, where conditions under Sec. 165(1) and (3) 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. An unlawful search can be resisted by the person whose premises are sought to be searched but not after search and seizure are complete [Shyam La? v State of MR AIR 1972 SC 886] If the entry into the place of search and the subsequent search are with the consent of the occupant, the search and recovery will not be affected on the ground that the search procedure was not followed. Where it is alleged and proved that the articles were produced by the accused person himself, Sec. 165 does not apply Generally speaking, the courts have taken the view that the non-compliance with the search procedure will not vitiate the trial or make the search-evidence inadmissible though that may affect the weight of evidence in support of the search and recovery. In State of Maharashtra v Natwarlal [1980 CrLJ 429 (SC)], the Supreme Court has opined that if the search is illegal that will not affect the validity of the seizure and further investigation, or the validity of the trial. The contravention of the provisions of Secs. 165-166 would make the search illegal or at least irregular . Whether such contravention would vitiate the trial or its effects would depend upon the question of prejudice caused to the accused person [Radha Kishan v State of UP. AIR 1963 SC 822]. State of Assam v. Upendra Nath Rajkhowa, 1975 Cr LJ 354 (Guj). Under section 165, four conditions have been imposed on the police officer: (i) the police officer must have reasonable ground for believing that anything necessary for the purpose of an investigation of an offence cannot, in his opinion, be obtained otherwise than by making a search without undue delay; (ii) he should record in writing the grounds of his belief and specify in such writing as far as possible the things for which the search is to be made;

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(iii) he must conduct the search, if practicable, in person; and (iv) if it is not practicable to make the search himself, he must record in writing the reasons for not himself making the search and shall authorise in writing, a subordinate officer to make the search after specifying in writing the place to be reached, and, so far as possible, the things for which the search is to be made. 166. When officer in charge of police station may require another to issue search warrant. 166A. Letter of request to competent authority for investigation in a country or place outside India. 166B. Letter of request from a country or place outside India to a court or an authority for investigation in India. (Bare Act reading) 167. Procedure when investigation cannot be completed in twenty-four hours.:- A person arrested without a warrant cannot be detained by the police for more than 24 hours [Sec. 57). However, if the police officer considers it necessary to detain such a person for a longer period for the pwposes of investigation, he can do so only after obtaining a special order of a Magistrate under Sec. 167. It may be noted that Sec. 309 similarly deals with the power to ‗remand‘. The scheme of Sec. 167 is intended to protect the accused from an unscrupulous police officer. The object is to see that persons arrested by the police are brought before the Magistrate with the least possible delay so that the Magistrate could decide whether the persons produced should further be kept in police custody and also to allow them to make such representations as they may wish to make. The entire object of Sec. 167, however, is to facilitate investigation and not detention without trial. Whenever any person is arrested and detained in custody and it appears that the investigation cannot be completed within the period of 24 hours, and there are grounds for believing that the accusation or information is well-founded, the officer-in-charge of police station or the investigating officer (if he is not below the rank of S.I.) shall forthwith transmit a copy of the entries in the case diary to the nearest Judicial Magistrate, and shall at the same time forward the accused to such Magistrate The Magistrate has full freedom to order detention in any custody (e.g. police or judicial or jail or asylum, etc.) as he thinks fit. But, detention in police custody should not be allowed as a matter of course but only in special circumstances. The period of 15 days begin to run immediately after the accused is before the Magistrate. The nature of custody can be altered

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from judicial to police custody and vice versa but after 15 days, the accused can only be kept in judicial custody or any other custody as ordered by the Magistrate, but not the custody of the police [Proviso (a), Sec. 167(2); CB.L v Anupam Kulkarni (1992) 3 SCC 141]. For invoking Sec. 167(1), it is necessary that the arrest should have been made only by a police officer and none else, and there need not necessarily be the records of entries in a case diary. The Magistrate may take into judicial custody a person who is produced before him if: (i) the arresting officer is legally competent to make the arrest, (ii) the particulars of the offence for which the person is arrested or other grounds do exist and are well founded, and, (iii) the provisions of the Special Act in regard to the arrest of the persons and production of the arrestee serve the purpose of Sec. 167(1).

Concept of Remand:- The word ―remand‖ has not been defined in the Code. However, it is used in Secs. 209 and 309 of the Code. Generally, when a prisoner is sent back to custody by a court Magistrate after a preliminary or partial hearing to be reproduced on the next date fixed, the prisoner is said to have been ‗remanded‘ to custody. The expression ―remand‖ (as used in Sec. 309) is different from the expression ―authorizing the detention‖ (used in Sec. 167); the latter takes place when the Magistrate in his discretion thinks that for the purposes of investigation further detention in police custody is necessary. During the course of the investigation an accused cannot be remanded to custody, but only his detention in custody can be authorized by a court or a Magistrate. Sec. 309 is attracted only after cognizance of an offence has been taken or commencement of trial has proceeded. Similarly, Sec. 209 clearly establishes that the ―remand‖ of an accused can take place only during the enquiry or trial before a court or a Magistrate and not before that. The meaning imparted to the expression ―remand‖ under Secs. 209 and 309 is in tune with the general definition of the word ―remand‖. The stage of remand will come only during the preliminary/ partial hearing of a case before a court/ Magistrate and not before that.

1. If the accused has not been arrested by the police but has voluntarily surrendered to judicial custody, the provisions of S. 167 authorising detention of the accused in police custody or other / custody within the prescribed time limits are not

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applicable. Because in such a case, the accused is not ―forwarded‖ by the police to the magistrate according to the wording of S. 167(2). The judicial magistrate to whom an accused person is so forwarded may, whether he has to has not jurisdiction to try the case; from time to time authorise the detention of the accused in such custody as such magistrate thinks fit, for a term not exceeding 15 days in the whole. If the judicial magistrate before whom the accused is so forwarded has no jurisdiction to try the case or commit it for trial, and considers further detention (that is, beyond the total period of 15 days) unnecessary, he may order the accused to be forwarded to a judicial magistrate having jurisdiction [S. 167(2)

In CBI Special Investigation cell v. Anuparn J. Kuikarni, it has been reiterated that police remand should not be resorted to after 15 days of arrest. Custody after the expiry of first 15 days can only be judicial custody during the rest of the period of 90 days or 60 days and that police custody if found necessary can be ordered only during the first period of 15 days. Proviso (a) to Sec. I67(2): Release on Bail‘:- If the Judicial Magistrate is satisfied that for the purposes of investigation it is necessary to orize the detention of the accused beyond the abovementioned period of 15 days, he may authorize so. But in such a case, the detention shall be in custody other than that of the police,and the total period of detention including the abovementioned period of 15 days shall not exceed. 1. 90 days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than 10 years, and 2. 60 days, where the investigation relates to any other offence. It is the duty of the Magistrate to inform the accused that he has a right to be released on bail under the proviso (a) to Sec. 167(2) [Hussainara Khatoon, 1979 CrLJ 1052 (SC)]. Once the accused is released on bail, the Magistrate ceases to have any jurisdiction to commit him to police custody. Only refusal of bail or cancellation of bail will enable him to commit an accused to custody. Bipin Shantilal Panchal (Di:) v state of Gujarat, 1996 CrLJ 1652 (SC)). The Supreme Court has held that if an accused person fails to exercise his right to be released on bail for failure of the prosecution to file the charge-sheet within the prescribed period, he cannot contend that he had an indefeasible right to exercise it any time notwithstanding the fact that in the meantime the charge-sheet is filed. But, on the other hand, if he exercises the right within the time allowed by law and is released on bail under such circumstances, he cannot be re-arrested on the mere filing of the charge-sheet In Uday Mohanlal Acharya v State [2001 CrLJ 1832 (SC)], after expiry of period of 60 days for filing chaflan the accnsei.l filed an application for being released on bail and was

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prepared to offer and furnish bail, howevet, the Magistrate rejected it on an erroneous interpretation. In the meanwhile chargesheet was submitted held that the indefeasible right of accused of being released on bail does not get extinguished by subsequent filing of chargesheet. The accused can be said to have availed of his right to be released on bail on the date he filled application for being released on bail and offers to furnish bail In State of UP v Laxmi Brahmananda (AIR 1983 SC 439), It was held that on the expiry of 60 days, the accused person‘s further detention does not ipsofacto become illegal or void. Once a charge-sheet is filed after completion of the investigation, the remand comes to end and consequently the provisions of Sec. 167(2), proviso (a) cease to operate. In such a case, the court will have to consider the grant or refusal of the bail Proviso (b) to Sec. 167(2): Production of Accused before Magistrate :- Sec. 167(2), Proviso (b) lays down that no Magistrate shall authorize detention in any custody under Sec. 167 unless the accused is produced before him. In Ramesh Kumar Ravi v State [1987 CrLJ 1489 (Pat)], it was held that though physical production of the accused is desirable, yet the failure to do so would not per se vitiate the order of remand if the circumstances for such non-production were beyond the control of the prosecution! police. Where the Magistrate went on extending judicial custody without production of the accused before him, such judicial custody is illegal.

Manoj v State of MR 1999 CrLJ 2005 SC held that there are two obligations of the police officer. One is that if he knows that investigation cannot be completed within 24 hours after arrest of the accused, he must transmit a copy of the case diary to the nearest Magistrate and secondly, he must forward the accused to such Magistrate simultaneously. If he fails to do so, the detention of the accused in the police custody would become unlawful. In order to facilitate the proof of the fact that the accused was produced before the Magistrate, Explanation II to Sec. 167(2) lays down that the production of the accused may be proved by his signature on the order authorizing detention. It may be noted that no Magistrate of the Second Class, not specially empowered in this behalf by the High Court, shall authorize the detention in the custody of the police [Proviso (c), Sec. 167(2)]. Empowerment to Executive Magistrate [Sec. I 67(2A)] 167(2A) (inserted by 1978 Amendment) lays down that notwithstanding anything contained in sub-sec. (1) or (2), the police officer, may, where a Judicial Magistrate is not available, transmit the copy of the entries in the case diary as well as accused person to the nearest Executive Magistrate on whom the powers of a Judicial Magistrate or Metropolitan Magistrate have been conferred. Such an Executive Magistrate may, for reasons to be recorded in writing, authorize the detention of the accused person in such a custody as he may think fit for a term not exceeding 7 days in the aggregate.

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The proviso to Sec. 167(2A) provides that before the expiry of the said period (i.e. 7days), the Executive Magistrate is required to transmit to the nearest judicial Magistrate the records of the case together with a copy of the entries in the case diary. Sec. 167(2A) further lays down that if the period of detention so authorized expires and no further detention of the accused person is authorized by a competent Judicial Magistrate, the accused person shall be released on bail. Where an order for further detention is made, the period during which the accused person was detained in custody under the orders made by an Executive Magistrate under this sub-sec. shall be taken into account in computing the period specified in proviso (a) to Sec. 167(2). The magistrate has full discretion to order detention in police custody or judicial custody. The magistrate can remand the accused person even to military, naval or air force custody if such accused person is subject to military, naval or air force law. However, no magistrate of the second class, not specially empowered in this behalf by High Court, can authorise detention of the accused in the custody of the police [paragraph (c) of the proviso to S. 167(2)1; nor can the accused be remanded to police custody after the expiry of 15 days as mentioned in proviso (a) to S. 167(2). But this limit is not applicable when there is a series of different cases requiring investigation against the same accused. If the judicial magistrate is satisfied that for the purpose of investigation the accused person be detained beyond the period of 15 days mentioned above, he can authorise further detention of the accused. But in such a case, (1) the detention shall be in custody other than that of the police, and (2) the total period of detention [including the above-mentioned period of 15 days and the period during which the detention was authorised by an executive magistrate under S. 167(2-A)] shall not exceed (a) ninety days where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years and (b) sixty days where the investigation relates to any other offence. [Paragraph (a) of Proviso to S. 167(2)]. It has been classified that in offences where in the sentence upto ten years‘ imprisonment is provided, the challan has to be filed within 60 days and in cases sentence period is not less than 10 years, challan has to be filed within 90 days.The prescribed statutory period of 90 days or of 60 days as mentioned in proviso (a) to S. 167(2) is to be computed from the date the magistrate authorises detention of an accused person. If the magistrate authorises detention on the very date of arrest of an accused person, then the period of detention of 90 days or 60 days is to be computed from the date of his arrest. On the expiry of the said period of ninety days, or sixty days, as the case may be the accused person shall be released on bail if he is prepared to and does furnish bail it is not that he has to make a formal written application for exercising the right of being released on bail. All that he has to do is to intimate that he is prepared to furnish bail that may be ordered by the Court. If he intimates the court orally or in writing, the court cannot refuse to pass an order directing his release on bail for want of a written application. It has been held that after filing charge sheet the magistrate is not competent to grant bail under the proviso to S. 167(2).

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3. The object of sub-section (3) which requires a Magistrate authorising detention of the accused to record his reasons in writing is to see that the Magistrate takes the trouble to study the police diaries and to ascertain the actual conditions under which detention is asked for. The Magistrate must satisfy himself that the accusation is well founded and that the presence of the accused is necessary while the police investigation is going on. Where a decision is to be taken after exercising judicial discretion, it is generally desirable to record reasons for the decision. Particularly where the detention in the custody of the police is ordered by a judicial magistrate, he is specifically required to record reasons for doing so [S. 167(3)]. 4. Any magistrate other than the Chief Judicial Magistrate making such order of detention under S. 167(2) shall forward a copy of his order, with his reasons for making it, to the Chief Judicial Magistrate [S. 167(4)]. This emphasises the need for recording reasons for the order detaining the accused person in any custody. It also enables the Chief Judicial Magistrate to exercise control in such matters in his supervisory capacity. 5. Time-Limit for Completing Investigation [Sec. 167(5)-(6)):- These sub-sections have been introduced with a view to see that there is no unnecessary delay in investigation. An inordinate delay encroaches upon the right of ‗speedy trial‘ of the accused. Sec. 167(5) lays down that 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 of the offences unless the officer making the investigation satisfies the Magistrate that for special reasons and in the interests of justice the continuation of the investigation is necessary. Such time schedule is to commence either from the date of arrest or the date when he made his appearance in the court and not from the date of first information. The duties cast by Sec. 167(5) on the court and the police officer are independent of each other. Therefore, the police officer making the investigation has normally to move the court for an order permitting continuation of the investigation beyond the period of 6 months before the Magistrate discharges his duty of stopping the proceedings which comes only after the expiry of 6 months. However, it does not seem to follow that if application is moved beyond the period of 6 months, but before the order of stopping the investigation has been passed by the Magistrate, the Magistrate has no jurisdiction to deal with such a request of the prosecution [State v Jai Bhagwan, 1985 CrLJ 932 (Del)]. The bar under Sec. 167(5) is for the investigation and not for the court taking cognizance of the case. The mere fact of investigation having continued beyond a period of 6 months without the permission of the Magistrate does not automatically nullify the continuance of the trial. The only result in that case is that the Magistrate will only look into the material which had been collected within a period of 6 months and will ignore the other material and then decide whether to take cognizance or not . The limitation prescribed under Sec. 167(5) does not bar the filing of the charge-sheet beyond the period of 6 months. The Magistrate cannot refuse to take cognizance of the case, on the basis of the charge-sheet duly filed merely on the ground that the investigation was not completed within the period of 6 months.

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Thus, an investigation beyond the period of 6 months may not necessarily vitiate the proceedings. Non-stopping of investigation would be only a curable error. However, if Sec. 167(5) has been violated, the evidence collected beyond 6 months may be rendered inadmissible It was held in State of West Bengal V. Pranab Ranjan Roy 1998 Cr. U. 2527 (S.C.)., that under the Cr. P.C., the word ‗appear‘ or ‗making appearance‘ can include appearance through the Advocate without the accused physically presenting himself in certain situations. But this principle cannot be carried forward to the situation in section 167 (5) of the Code. The words ‗made his appearance‖ in Section 167 (5) means physical appearance and not appearance by counsel. The purpose of this sub-section is to impose a time schedule for completion .of investigation and such time schedule is to commence either from the date of arrest or the date when he made his appearance in the Court. The period of time is not commencing from the date of registration of the crime or the date of first information. The sublime idea is that the investigating agency who gets opportunity to question the accused under Section 161 of the Code cannot be permitted to dodge with or further prolong the investigation without special reasons and in the interest of justice. The word ‗appearance‖ in Section 167 (5) cannot be understood different from the same word used in Sections 436 and 437 of the Code. In the present case the respondent/accused has not made his physical appearance before the special Judge at any time before the charge-sheet was laid. Hence there is no question of invoking the bar contemplated in Section 167 (5). It was held in Nirmal Kanti Roy v. State of West Bengal 1998 Cr. L.J. 3282 S.C.). , that the order stopping further investigation into the offence and the consequential order of discharge are not intended to be automatic sequel to the failure to complete investigation within the period fixed in Section 167 (5). The succeeding words in the sub-section confer power on the court to refrain from stopping such investigation if the Investigating Officer satisfies the Magistrate that : (1) in the interest of justice it is necessary to proceed with the investigation beyond the period shown in sub-section and that (2) there are special reasons to do so. It was further held that a reading of sub-section (6) of Section 167 further shows that even in a case where the order stopping investigation and the consequent discharge of the accused has been made that is not the last word because the Session Judge under Section 167 (6) has power on an application having been moved or otherwise to allow the investigation to proceed. Hence the time schedule shown in Section 167 (5) of the Code is not to be treated with rigidity and it is not mandatory that on the expiry of the period indicated therein the Magistrate should necessarily pass the order of discharge of the accused. Before ordering stoppage of investigation the Magistrate shall consider whether, on the facts of that case, further investigation would be necessary to foster interest of criminal justice. Magistrate at that stage must look into the record of investigation to ascertain the progress of investigation thus far registered. 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 Magistrate ordering detention under this sect n acts in his judicial and not executive capacity.‘ He exercises discretionary function in respect of which the initiative is that of the executive but the responsibility is his.

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State of Bihar v. Ram Naresh AIR. 1957 S.C. 389. that the discretion of the Magistrate in such matters has necessarily to be exercised with reference to such material as is by then avilable and in not a prima facie judicial determination of any specific issue. His functions in these matters are not only supplementary, at a higher level, to those of the executive but are intended to prevent abuse.

It was held in S.K. Dey v. Officer-in-charge, Sakchi P.S AIR. 1974 S.C. 871 that remand orders cannot be passed mechanically and the Magistrate passing an order of remand ought, as far as possible, to see that the prisoner is produced before the Court when the remand order is passed. Though the remand order passed in the absence of the prisoner in court is not vitiated it is highly unsatisfactory. 6. Further Investigation by Sessions Judge [Sec. 167(6)] :- Sec. 167(6) lays down that if the Magistrate orders the investigation to be stopped under subsec.(5), but the Sessions Judge is satisfied, on the application made to him or othenvise, that further investigation into the offence ought to be made, he may vacate the order made by the Magistrate and direct further investigation to be made into the offence subject to such directions with regard to bail and other matters as he may specify Thus, the outer limit of 6 months for the completion of investigation can, on the satisfaction of the Magistrate [under sub-sec.(5)] or the Sessions Judge [under sub-sec.(6)], be extended, though, only in exceptional cases. No time-limit is prescribed for further investigation

168. Report of investigation by subordinate police officer.:- When any subordinate police officer has made any investigation under this Chapter, he shall report the result of such investigation to the officer in charge of the police station. Procedure to be Followed on Completion of Investigation [Secs. 169- 173] ;- On the completion of investigation, the police is required to follow certain procedure as-laid down in Secs. 169-173. Submission of the police report (―charge sheet‖ or “challan”) s the end-result of such investigation. Under Sec. 172, every police officer is required to maintain a ―case diary‖. (a) Release of Accused when Evidence is Deficient (Sec. 169 :- Sec. 169 lays down that if, upon an investigation under this Chapter, it appears to the officer- in-charge of the police station that there is no sufficient evidence or reasona,ble ground of suspicion to justify the forwarding of the accused to a Magistrate, he must release such person from custody on his executing a bond (with or without sureties) as the officer may direct, to appear before a magistrate empowered to take cognizance of the offence on a police report, and to try the accused or commit him for trial. When the police officer submits a report under this section to the effect that no case is made out against the accused which may justify his trial, the Magistrate has no power to call upon police to

50

submit a police report [Abhinandan Jha v Dinesh MIshra AiR 1968 SC 117]. However, he can direct the police to make further investigation. (b) Cases to be Sent to Magistrate when Evidence is Sufficient [Secs. 170-171] Sec. 170 is the counterpart of Sec. 169. If upon investigation there is sufficient evidence or reasonable ground to justify the forwarding of the accused to a Magistrate, the officer-in- charge shall forward the accused under custody to a competent Magistrate, or if the offence is bailable and the actused is able to give security, shall take security from him for his appearance before such a Magistrate [Sec. 170(1)]. This is the only section under which a police officer can take recognizance from the accused for his appearance before a Magistrate. It may be noted that a mere admission of guilt or confession by the accused during the investigation of the offence does not necessarily amount to sufficient evidence under this section The officer-in-charge shall send to the Magistrate any weapon or other article which it may be necessary to produce before him, and shall require the complainant (if any) and the witnesses to execute a bond to appear before the Magistrate as thereby directed and prosecute or give evidence (as the case may be), in the matter of the charge against the accused [Sec. 170 (2)]. Sec. 171 lays down that a complainant or a witness on his way to any court is not required to accompany a police officer, nor is he to be subjected to unnecessary restraint or inconvenience or to be required to give any security for his appearance other than his own bond. However, if such a person refuses to attend or to execute a bond as directed in Sec. 170, the officer-in-charge may forward him in custody until he executes such a bond, or until the hearing of the case is completed [Proviso, Sec. 171]. (c) Diary of Proceedings in Investigation65 [Sec. 172 Sec. 172 deals with what is known as a ―police diary‖, or a ―special diary‖, or ―case diary‖ or a ―station house report‖. It provides that every police officer making an investigation under this Chapter shall, day by day, enter his proceedings of the investigation in a Diary, stating therein the time at which information reached him, the time at which he began and closed his investigation, the place or places visited by him, and a statement of the circumstances ascertained through his investigation [sub-sec.(1)]. The object of this section is to enable the Magistrate to know what was the day-to-day information by the police officer who was investigating the case and what were the lines of his investigation.Thus, the object of recording ―case diaries‖ is to enable courts to check the method of investigation by the police. Further, where the cases for prosecution and defence are both inadequate, the case diary would help the court to discover for itself the material facts which can be brought to light through examination of witnesses and get at the truth in the interests of justice [Habeeb Mohd. v State of Hyderabad AIR 1954 SC 51].

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The entries in a police diary should be made with promptness in sufficient details mentioning all significant facts, in careful chronological order and with complete objectivity [Bhagwant Singh v Commissioner of Police AIR 1983 SC 826]. All police officers-in-charge of a police station are required to keep a diary, and the magistrate of the district is authorized to call for and inspect the same. It is a document under Sec. 91 that can be summoned by the court de hors Sec. 172 [State of Kerala v Babu (1999) 4 SCC 6211. Any criminal court can send for the police diaries of a case under inquiry or trial in such a court, and may use such diaries, not as evidence in the case, but to aid it in such an inquiry/ trial [Sec. 172(2)]. The diary can be used as aid in framing a charge against the accused person but it cannot be used for founding the charge [JyotiJiban Ghosh v State AIR 1964 Cal 591. It was held in A.K Roy v State of WB. (AIR 1962 Cal 135) that the Magistrate cannot take cognizance or issue process against the accused on the material contained in the case diary alone unless the fact contained in the report under Sec. 173 constitute the offence. Sec. 172 does not deal with the recording of any statement made by witnesses. Use Permitted of a Case Diary :- The accused or his agents are not entitled to call for such diaries, nor shall he or they be entitled to see them merely because they are referred to by the court; but if they are used by the police officer who made them to refresh his memory, or if the court uses them for the purposes of contradicting such a police officer, the provisions of Sec. 161 or Sec. 145 of the Indian Evidence Act shall apply [Sec. 173(3)]. The case diary, including every entry in it, is privileged from inspection by the accused or by his pleader. The reason for this is that if the accused were entitled to inspect the diary, the police officer making the investigation would be tempted to omit from the diary, all information which could prove to be injurious to the prosecution. Further, in the absence of such a restriction on the accused person, the informer conveying information to the police would be deterred and that would hamper speedy investigation However, the accused is allowed to use the case diary under two circumstances: (i) if the police officer, while giving evidence, refreshes his memory by referring to the case diary (permissible under Sec. 159, Evidence Act), the accused is entitled to see the relevant or particular entries in the diary and may use the same for crossexamining the police officer as provided in Sec. 161 of the Evidence Act; if the court uses the diary for the purpose of contradicting such a police officer in accordance with the provisions of Sec. 145 of Evidence Act.

(ii)

The court is not bound to compel the police witness to look at the diary in order to refresh his

52

memory nor is the accused entitled to insist that he should do so [Shamshul Kanwar v State of UP (1995) 4 SCC 430]. In Kalpnath Rai v State [1998 CrLJ 369(SC)], held that there is no doubt daily diary is a document which is in constant use in police station. But no prosecution is expected to produce such diaries as a matter of course in every prosecution case for supporting the police version; if so, the function of the police station would be greatly impaired. Of course it is open to the defence to move the court for getting down such diaries if the defence wants to make use of it. If there is failure to keep a diary as required by Sec. 172, the same cannot have the effect of making the evidence of such police officer inadmissible and what inference should be drawn in such a situation depends upon the facts of each case [Niranjan Singh v State of UP AIR 1957 SC 142]. 173. Report of police officer on completion of investigation. COMMENT.—There are three different kinds of reports to be made by Police officers at three different stages of investigation. (1) Section 157 require a pre liminary report from the officer-incharge of a police-station to the Magistrate (2) Section 168 requires reports from a subordinate police-officer to the Officer -in-charge of the station. (3) Section 173 requires a final report of the Policer officer as soon as investigation is completed to the Magistrate. Magisterial proceedings on police report: After the completion of the investigation, it is for the investigating police officer to form an opinion as to whether or not there is a case to place the accused before the magistrate for trial. He would then follow the procedure laid down in S. 169 or S. 170 as the case may be, and submit a report under S. 173.The magistrate receiving the report has no power to direct the police to submit a particular kind of report; if he considers the conclusion reached by the police officer as incorrect, he may direct the police officer to make further investigation under section 156 (3) he may or may not take cognizance of the offence disagreeing with the police, but he cannot compel the police officer to submit a charge- sheet so as to accord with his opinion. The police report also need not accord with the version of the complainant. No authority can straightway direct the police officer to file a charge sheet when no case is made out according to his report. Once cognizance has been taken, the proceedings can only be withdrawn with the permission of the court. This is the course available to the prosecution after it files the challan against any accused. According to S. 173(4), whenever it appears from a report forwarded under S. 173(2) that the accused has been released on his bond (that is under S. 169) the magistrate shall make such order for the discharge of such bond or otherwise as he thinks fit. The words ―or otherwise as he thinks fit‖ indicate that if the magistrate considers that the accused person was wrongly released, he has power to take cognizance of the case and to proceed to put the accused on trial. Charge-sheet.—Report submitted under this section is called ‗completion report‘ or ‗chargesheet‘. The police charge-sheet corresponds to a complaint made by a private person on which criminal proceedings are initiated. Submission of charge-sheet means that the preliminary

53

investigation and preparation of the case is over and the Magistrate can then take cognizance of the offence.‘ After the filing of the charge-sheet under section 173 and the posting of the case for further cross-examination there can be no further investigation into the case by the police. Charge-sheet is not a complete or accurate basis of the prosecution case. Inordinate delay in submitting final report may lead to the grievance that the investigation is carried on unfairly or with some ulterior motive. It was held in Bhagwan Singh v. State of Rajasthan, AIR. 1976 SC. 985 that where an important document which bears on the offence, alleged to have been committed by an accused, is produced before police officer some days later, the natural course for a police officer to follow was to take charge of the document under a panchnama or memo. Police report. — ‗Police report‘ means a report forwarded by a police officer to a Magistrate under sub-section (2) in the prescribed form. The formation of the opinion of the officer-rncharge of the police station whether on the materials collected, there is or there is not a case to place the accused for trial before a Magistrate is the last of the several stages of the investigation by police. It was held in Zulfiqar Beg alias Baby v. State of UP. that the submission of report under section 173 (2) does not preclude further investigation in a crime by the investigating agency and supplementary reports can be submitted to the Magistrate notwithstanding that the Magistrate has taken cognizance of the - offence upon a police report submitted under section 173 (2). It was held in Dinesh Dalmia v. C.B.I., that if the investigating officer finds sufficient evidence even against such an accused who had been absconding, law does not require that filing of the charge-sheet must await the arrest of the accused. It was also observed that after filing of final report even if cognizance of offence has been taken by the Magistrate, further investigation can be undertaken even after cognizance. It was further held that the statutory right to be released on bail is available only, till investigation remains pending. The right is lost once , charge-sheet is filed and it does not get revived only because further investigation is pending. Abhinandan Jha v. Dinesh Mishra, A.I.R. 1968 S.C. 117 Whatever action is taken by the Magistrate on consideration of the ‗police port‘ amounts to a judicial proceeding. Therefore, the Magistrate must isider the report and take a decision judicially whether cognizance of the ftence should be taken or not. M.L. Sethi v. R.P. Kapur, AIR. 1967 S.C. 528 Until the Magistrate receives police report Mer section 173, there can be no intervention by him in his judicial capacity r .as a court and until then no occasion can arise for the Magistrate to make Judicial order in connection with the police investigation. It was held in M. C. Venktareddy, that mere filing of charge-sheet within precribed time, unaccompanied by material papers as contemplated under 173 (5) renders it incomplete and such filing of charge-sheet amounts to failure to file the same which in turn confers on the accused

54

right to be released on bail under section 167 (2) of the Code. The court is not competent to take cognizance of offence on the basis of such incomplete charge-sheet. State of Bihar v. J.A.C. Saldanna, AIR. 1980 S.C. 326. While considering the duty of police officer under section 173 the Supreme court has observed that in matters requiring judicial determination, the police officer should refrain from directly addressing communications to the Court. They should communicate to the Court through proper channel.

It was held in Union of India v. Prakash P. Hinduja (2003) Cr.L.J. 3117 (SC). that when investigation of an offence is completed by the police a report is made to the Magistrate under Section 173, Cr.P.C., the requisite details are required to be submitted by the officer-in-charge of the police station without any kind of interference or direction of a Magistrate and that will include a report regarding the fact whether any offence appears to have been committed and if so, by whom as provided by clause (d) of sub-section (2) of Section 173. The Magistrate is no doubt not bound to accept a final report (sometimes called as closer report) submitted by the police and if he feels that the evidence and material collected during investigation justifies prosecution of the accused, he may not accept the final report and take cognizance of the offence and summon the accused but this does not mean that he would be interfering with investigation as such. The statutory provisions are absolutely clear that the Court cannot interfere with the Investigation. Contents of the Police Report/ Notice under Sec. 173(2) :- Sec. 173(2) (i) lays down that the report is to contain: (a) the name of the parties; (b) the nature of the information; (c) the name of persons who appear to be acquainted with the circumstances of the case; (d) whether any offence seems to have been committed and if so, by whom; (e) whether the accused has been arrested; (f) whether he has been released on his bond and, if so, whether with or without sureties; (g) whether he has been forwarded in custody under Sec. 170. Police report, deemed complaint.— State of Bihar versus Ganesh Choudhry 2001 (2) SCC 245 The scheme of the Code on the subject which is reflected by section 2(d) defining ―complaint‖ encompass a police report also as a ―deemed complaint‖ if the matter has been investigated by a police officer regarding a case involving commission of a non-cognizable offence. It obviously means that the proceedings before the Magistrate could not be viewed as without jurisdiction merely because proceedings were instituted by police officer after investigation when he had no power to investigate. The police officer here was cognizant of his limitation and had, according to the appellant state undertaken an inquiry and not an investigation and had submitted before the Court not a police report, but a complaint. In either view of the matter, interference of the High Court was not called for. Proceedings had to be allowed to be continued as if they were instituted on a complaint.

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Information to the informer [Sub-section (2)(ii)].— UPSC versus s. Papaiyah AIR 1997 SC 3876 Where the magistrate accepted the final report submitted by the investigating agency under this section and passed an order dropping the proceedings without issuing any notice to the informant, it was held by the Supreme Court that the order was legal. S. 173(3) - It lays down that where a superior officer of police has been appointed under Sec. 158, the report shall, in any case in which the State Government so directs, be submitted through that officer, and he may, pending the orders of the Magistrate, direct the officer-indiarge of the police station to make further investigation. Sec. 173(4) - It lays down that wherever it appears from a report forwarded under this section that the accused has been released on his bond, the Magistrate shall make such order for the discharge of such bond or otherwise as he thinks fit. Sub-sec.(4) relates to those cases under Sec. 169 where the accused has been released on his bond on the ground that the evidence is deficient. The words ―or otherwise as he thinks fit‖ indicate that if the Magistrate considers that the accused person was wrongly released, he has power to take cognizance of the case and to proceed to put the accused on trial. Documents and Statements to be Forwarded with Report [Sec. 173(5)-(7)] No exhaustive test of such documents may be suggested. It includes reports of postmortem examination, or chemical examiner, or handwriting or fingerprint expert, etc. The accused can demand from the prosecutor copies of the statements recorded by the police during investigation and use it for his defence. Any denial to the accused of this right is a serious irregularity which would vitiate the entire trial if the accused was prejudiced [Purshottam Jethanand v State of Kutch AIR 1954 SC 700]. Mere filing of charge-sheet within prescribed time, unaccompanied by material papers as contemplated under Sec. 173(5) renders it incomplete. The court is not competent to take cognizance of offence on the basis of such incomplete charge-sheet [Satya Narain Musadi AIR 1980 SC 506]. Copies of documents to accused [Sub-section (7)).—The police officer may, if he finds it convenient, himself furnish to the accused copies of all or any of such doucments. The policeOfficer has power to indicate to the Magistrate parts of document which should be omitted from copies to be granted to the accused on grounds of irrelevancy, public interest or not being essential in the interests of justice. Harassment is caused to the accused on non-supply of police report only if it is due to deliberate and negligent act of the police. Thus mere non-supply of it would not amount to any harassment. Supplementary Report on Further Investigation [Sec. 173(8)) :- Nothing in Sec. 173 shall preclude further investigation in respect of an offence after a report under sub-sec.(2) has been forwarded to the Magistrate, and where upon such investigation, the officer-in-charge of the

56

police station obtains further evidence (oral or documentary), he shall forward to the Magistrate a further report regarding such an evidence [Sec. 173(8)]. It may be noted that a power to direct further investigation has been conferred on the Magistrate under Sec. 156(3), which can be exercised by him even after submission of a report by the police officer. This provision does not in any way affect the power of the police officer to further investigate the case even after submission of the report as provided in Sec. 173(8). However, a Magistrate after taking cognizance of the offence on the basis of police report and after appearance of the accused, cannot order further investigation [Randhir Singh Rana v State (1997) 1 SCC 361]. The underlying idea behind Sec. 173(8) is that if the investigating officer finds additional evidence as to the guilt or innocence of the accused person it would be in the interests of justice to allow such officer to make further investigation. While such an investigation is going on, the accused can very well be remanded to custody under Sec. 167, as the matter will again be under investigation qua that accused, when some evidence is collected by the police against him [State v Dawood Ibrahim Kaskar AIR 1997 SC 2494]. Supplementary reports can be submitted to the Magistrate notwithstanding that the Magistrate has taken cognizance of the offence upon a police report submitted under Sec. 173(2) [Ram Lal Narang v State (Delhi Admn.) AIR 1979 SC 1791]. Thus, further investigation by the police is not without jurisdiction or contrary to law when trial in a Court of Session is continuing. However, it is desirable that the police should inform the court and seek formal permission. Even when a trial is in progress and a police report under Sec. 173(8) is received by a Magistrate, he has power to issue process on the basis of the report against any person who is not already before him as an accused Even if the party was discharged on the first report, the police on its own can resort to further investigation . The fact that a second challan was put in later would not necessarily vitiate the first and invalidate the proceedings taken before the second challan was submitted [Tara Singh AIR 1951 SC 441]. A supplementary charge-sheet based on reconsideration of evidence already before investigating agency is not permitted; further evidence should be obtained. However, further investigation is the continuation of earlier investigation and not a fresh investigation or re-investigation to be started ab initio wiping out the earlier investigation altogether. Sec. 173(8) clearly envisages a further report and not fresh report [K Chandrashekhar v State of Kerala, 1998 CrLJ 2897 (SC)]. Further investigation after filing of charge sheet cannot be claimed as of right by the informant or the accused. After submission of police report under sub-s. (2) on completion of investigation the police can only conduct investigation under sub-s. (8) but it cannot undertake fresh investigation or re investigation .

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The supreme Court has held that a further investigation by the police after a report under s. 173(2) has been forwarded to the Magistrate is permissible. Ithas been further held that additional evidence gathered during investigation can be produced by the police officer even after submission of the chargesheet The word shall used in sub-s. (5) for requiring a police officer to forward to the magistrate ―all documents‖ is directory and not mandatory. It is not within the province of the Magistrate while exercising the power under section 173(8) to specify any particular officer to conduct such investigation, not even to suggest the rank of the officer who should conduct such investigation. Therefore, the direction made by the Special Judge that further investigation be conducted by an officer of DIG rank of CBI was deleted. Hearing accused not necessary for making order of further Investigation.—The power of the court to direct the police to conduct further investigation cannot have any inhibition. There is nothing in s. 173(8) to suggest that the court is obliged to hear the accused before any such direction is made. Casting the burden of any such obligation on the court would only result in encumbering the Court with the burden of searching for all the potential accused to be afforded with the opportunity of being heard. As the law does not require it, the Magistrate cannot be burdened with such obligation. 174. Police to inquire and report on suicide, etc.:- bare Act 175. Power to summon persons.:- Bare Act 176. Inquiry by Magistrate into cause of death.:- Bare Act

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