CRIMINAL INVESTIGATION IN INDIA – HUMAN RIGHTS PERSPECTIVE

Author(s): K.N. Chandrasekharan Pillai

Source: Journal of the Indian Law Institute , July-September 2006, Vol. 48, No. 3 (July-
September 2006), pp. 435-438
Published by: Indian Law Institute

Stable URL: https://www.jstor.org/stable/43952051

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 435

CRIMINAL INVESTIGATION IN INDIA -

HUMAN RIGHTS PERSPECTIVE

IN INDIA it is generally accepted that investigation into cr

prerogative of the police and that the judiciary should keep
arena. There is an array of decisions signifying this p
Emperor v. Nazir Ahmad1 to State of Bihar v. JAC Salda
there have been some decisions conceding a little bit of
judiciary into investigations in cases where there is danger
of fundamental rights.
It seems that these are fixed notions, which do not have any
theoretical foundation. If one looks into the statutory scheme provided
for in the Cr PC for investigation into crimes it becomes clear that the
magistrate is definitely expected to have supervision of the investigation
process.
Police has also an important role in investigation and the maximum
amount of freedom is given to them to see that for want of power they
do not fail in preventing crimes. The Indian legislature has meticulously
devised a scheme under which both the police and the magistrates have
been given adequate role in the investigation into the crimes in the
backdrop of human rights and rule of law. In common law parlance
commission of crime by a person is an offence against the state. It being
an accusatorial system the police, which is in charge of prosecution,
accuses the person having committed the offence and interferes with his
freedom of movement so as to bring him before the court for trial. The
judiciary, which is independent and impartial, has to decide the dispute
between the accused and the accuser. The accuser, the police, will have
to seek the authorization of the independent judicial officer to detain
the accused. If he does not approve the accused goes out. If he authorizes
the police to detain him for investigation on justification he can authorize
detention. The provisions in the Cr PC such as sections 154-167 reflect
this position. The Constitution of India also provides for this arrangement.
The police is indeed given the role for investigation unhampered by
the court. But in case of violation of rights it does have the power to
interfere.3 The statutory scheme referred to above signifies this. Section

1. AIR 1945 PC 18.

2. (1980) 1 SCC 554.
3. See observations in the judgment like Niyama Vedi v. Raman Srivastava 1995
Cri LJ 1976 (Ker).

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436 JOURNAL OF THE INDÍAN LA W INSTITUTE [Vol. 48 : 3

154 lays down how FIR is made and it is specifically st

copy of the FIR should be sent to the ilaqa magistrate.
this is the provision enjoining the production of the accus
magistrate within 24 hours of the arrest of the accused. It
a formality. The Indian Constitution also provides for
purpose of this arrangement is none other than judicial su
the interference on the individual's freedom by the police.
can show to the judicial officer that the allegation ag
unfounded, or does not make up an offence it is his duty
person's release. Or, he can order further inquiry by th
some other agency. If he finds that there is prima faci
police wants his remand for further inquiry, he can author
In case the material is sufficient, he can then and there tak
either to punish or to send up the case to the next higher
for appropriate action.
While this is the statutory scheme, it is not known wh
apex court does not give adequate attention to interpret t
the light of the rationale or in the context of human right
The Supreme Court in State of Karnataka v. Pastor P
not appear to have examined the issues in the light of
protection of human rights. The allegations were that the
addressed the complainants urging them to convert th
Christianity offering many incentives. The police register
156(B) IPC and started investigation. The respondent a
high court u/s 482 Cr PC and got the proceedings quashed
to the court it was an abuse of the process of the cour
there was no sanction from the govt. /state govt, or author
u/s 196 (1A) Cr PC. The state challenged this order in
Court, which ruled that there was no bar for the police t
under section 196(1 A). According to it the bar becomes ap
the police comes up with the inquiry report u/s 173 Cr P
there is cognizance by the court. The court seems to feel t
referred to in section 196 (1A) refers to cognizance by th
when the investigation report is produced. This is evi
observations about the high court's reasoning which runs
The HC seems to have taken the view that the learned M
remanded the respondent to judicial custody when
produced before him in accordance with S.167 C
amounted to taking cognizance of the offence. The
that arises is whether passing of an order of reman
amount to taking of cognizance of the offence.

4. Cr. App. No. 814 of 2006.

5. Id., para 8.

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2006] NOTES AND COMMENTS 437

After posing this question the cour

Mohd. Khalid ,6 arguing thus:7
In its broad and liberal sense, it
offence. This would include the in
proceedings against the offender
taking steps to see whether there is
proceedings or for other purpo
indicates the point when a mag
judicial notice of the offence.
Application of this ruling could ha
further goes in its reasoning and co
involve cognizance. The court says:
This is anterior to S.190 Cr PC
Magistrate to take cognizance of a
remanding an accused to judicia
taking cognizance of an offenc
PC can move no application at a
erred in quashing the proceedings
sanction of the Central Govt, or
Magistrate had not been obtained
In order to buttress its argument
if the high court's view is accepted
cannot be arrested or investigated.
It seems that there are more vali
court's views. There cannot be any h
meaning of 'cognizance'. The div
and 'non-cognizable' has nexus wi
Cognizable offences are those for
without a warrant from the magis
the Cr PC it becomes evident that
co-existent with the jurisdiction of
In this connection it may be w
Court's decision in Ram Kumar
Supreme Court tried to distinguish
section 132 and section 196 Cr PC
in the facts of that case. But if
protected properly it should be pos
by way of sanction before he conf
the police who is accused of human

6. (1995) 1 SCC 684.

7. Ibid.
8. Supra note 4, para 10.
9. (1987) 1 SCR 991.

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438 JOURNAL OF THE INDIAN LA W INSTITUTE [Vol. 48 : 3

not face such violation of right from the court.

Section 196 puts an embargo on the court not to initi
certain cases without the sanction of the authorities mentioned there.
The court does not examine the purpose of this restriction. Nor is there
any discussion on the theoretical foundation of the statutory scheme
detailed above. Both these inquiries are essential if our criminal justice
system should ensure protection of human rights.
As the court has rightly mentioned in Mohd. Khalid's 10 case,
cognizance can be liberally construed. If so, even the examination of
the FIR by the magistrate for this purpose should be taken as cognizance
because that is the very purpose of sending copy of FIR to the magistrate.
If the argument of the court is accepted even in cases requiring sanction
the police may go ahead with harassing people in the name of
investigation. And the very purpose of FIR being sent to the magistrate
and the embargo of sanction might be defeated.
In the present case sanction is to be obtained from the Central
Government or the state government or district magistrate - all executive
authorities. And the police officer being a subordinate of the district
magistrate should be in the knowledge of things with reference to the
prosecution for an offence like the one under section 153B IPC. It is
trite that the police officer who writes the FIR mentions the sections of
IPC/relevant statute. A perusal of section 196 (1A) may enlighten the
magistrate dealing with the remand of the accused that it requires sanction
for prosecution.
In short, total exclusion of the judiciary from the arena of
investigation may entail violation of human rights and, therefore, it
would be in the fitness of things if the court examines such questions in
the light of the need for protection of individual rights. Chances for
violation of human rights are aplenty during the course of investigation
by unscrupulous police officers who need not necessarily be trained in
law. It is common knowledge that citizens are more vulnerable in this at
this stage of criminal justice when compared to the stage of the court
taking cognizance. The present decision enhances the scope for violation
of rights inasmuch as it envisages sanction for prosecution at the stage
of police report under section 173. And the court's embargo on the high
court under section 482 further aggravates the situation. The citizen has
to wait till the trial court takes up the police report. This is not a happy
situation from the human rights point of view. Our Supreme Court's
human rights record is excellent. This decision may, however, be cited
to dispute it.
K.N. Chandrasekharan Pillai *

10. Supra note 6.

* Director, Indian Law Institute, New Delhi.

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