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Indian Journal of Law and Legal Research Volume IV Issue III IISSN: 2582-8878

EXAMINING THE NEED FOR A STANDARD OPERATING

PROCEDURE IN LIGHT OF CRIMINAL INVESTIGATIONS
BY LAW ENFORCEMENT AGENCIES

Utkarsh Mishra & Sanchita Singh, Symbiosis Law School, Noida

ABSTRACT

The Criminal Justice System is an amalgamation of various branches of the

government, namely the judiciary and the law enforcement agencies, i.e., the
police department. The Police is responsible for registering a criminal
activity, providing emergency relief and protection, conducting the detailed
investigation of the case and collecting the evidence based on which the
judiciary acts and provides the judgement over the guilt of the accused. Thus,
it is pertinent to understand thatjudicial decisions are primarily based on the
investigation conducted and evidence that were collected by the police.
Dismally, the police department of our country has often been maligned with
allegations of brutality, corruption and malfeasance. It is fair to assume that
the police department neither has the intention nor the resources to conduct
fair and impartial investigation of a crime scene. The result of this is that the
police often falters in its pattern of investigation and the criminal goes scot-
free after committing the most heinous of crimes. It also leads to further
ostracization of the police personnel in relation to the citizens which makes
legal accessibility scarce and contributes to establishing lawlessness. This
paper thus aims to establish a statute overlooking and setting up the standards
of investigation providing concrete guidelines to the police for conducting
criminal investigations properly and holding them accountable for
discrepancies in the investigation. This will ensure better enforceability of
the law and provide for justice. It will also make sure that the enormous
powers that the police officials have over the justice system is controlled
(since the police are responsible for bringing the evidence to the court).

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Indian Journal of Law and Legal Research Volume IV Issue III I ISSN: 2582-8878

Introduction

The idea of the power of investigation arises from the preamble of The Police Act, 1961 which
states that "Whereas it is expedient to re-organise the police and to make it a more efficient
instrument for the prevention and detection of crime" 1 .The Police derives its powers of
investigation primarily from Sec. 156 of the Cr.P.C which gives the rights of investigation to
police in cases of a cognizable offence. The powers of the police in relation to conducting an
investigation are unfettered and absolute. Even the judiciary cannot interfere in the working of
the investigation or over the actions taken by the police during investigation 2 except when the
police unabashedly violates the legal limits and causes failure to the justice system as a
whole 3 .Since the judiciary is considered to be the law of the land when the legislature is silent
over a matter, it is pertinent to mention that the Supreme Court, in a number of cases have tried
to provide a structure for various segments of police procedure, such as filing of FIR4 , self-
incriminations, etc. However, there still exists a need for structuring of investigative process as
it is often ignored that investigation, in itself, is not mandatory and a discretionary power of
the police under Sec. 157(1)(b) 6 . Even though Sec. 157(2) makes mandatory for the police to
record in writing the reasons for not conducting the investigation, but it isn't a suitable check
as the records are checked by higher police officials and are not to be disclosed to the victims
as well. This leads to a higher propensity for collusion as there is no external agency to enforce
investigation. Even this current process is cumbersome as the higher police officials get
involved, and it is pertinent to mention that this structure of recourse for non-conduction of
investigation only makes impartial police investigation less accessible to the impoverished
minorities since access to higher police authorities is in itself, a complicated process.

The current standard of investigation in the country rise from a few judicial decisions which
are essentially non-consistently enforced due to lack of statutory authority even though the
word 'investigation', in this context cannot be considered to be exhaustive, but involves all the
elements from the information of the commission of an offence (including but not limited to,

1 The Police Act, 1861 (Preamble).

2 Nazir Ahmed, (1944) 47 Born LR 245: (1945) 26 Lah 1: 71 1A 203. See Ratanlal and Dhirajlal's The Code of
Criminal Procedure by Ratanlal Ranchhoddas and Dhirajlal K Thakore, 15 1h Edition (Revised by Justice Y.V.
Chandrachud, et al), Wadhwa and Company Law Publishers, Nagpur, 2002, pp. 221-28.
3 Eastern Spinning Mills v. Rajiv Poddar, AIR 1985 SC 1668 (India). See Ratanlal and Dhirajlal's The Code of
Criminal Procedure, ibid, p. 222.
4 Lalita Kumari V. State of Uttar Pradesh, (2012) 4 SCC 1 (India).
s DK Basu V. State of West Bengal, Selvi V. State of Karnataka (1997) 1 SCC 416 (India).
6 David H. Bayley, The Police and Political Development in India, Princeton University Press, Princeton, 1969,
p. 131.

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Indian Journal of Law and Legal Research Volume IV Issue III IISSN: 2582-8878

proceeding to the crime spot, collection of evidence material, written statements, etc.) up to
the arrest of the accused suspect. The purpose of an investigation is not only to increase the
rate of conviction or create a favorable case for the prosecution but be able to bring out the
unblemished truth and bring the people responsible for the crime to justice.7 Thus, this obvious
lacuna is extremely problematic to the citizens in general.

Police Investigation Procedure in Status Quo

Till now, the various processes inclusive of the act of police investigation underlined clearly
by the apex court in the case of H.N. Rishud v. State of Delhi'are:

1) Proceeding and reaching the crime spot.

2) To investigate and discover the facts and circumstances of the commission of the offence.
3) Collection of the evidence which includes, but is not limited to

i). Examining the accused and other people necessary, and reducing their statements into
writing.

ii.) Searching the objects for seizure and necessary places which might be produced at the
trial and are important for further investigation respectively.

4) Considering whether the evidences collected are sufficient enough to be presented before
a magistrate and subject the case to trial which is then done via filing of a charge-sheet
under Sec. 173 of the Cr.P.C.

Thus, it is important to mention that the observations made by the National Police Commission
of India states that "Compliance of certain provisions in law proved unrealistic and difficult in
actual investigations and, therefore, led to the adoption of certain improper methods and
practices by investigating officers to meet requirements of case law as it developed over several
years."

Also, The Criminal Procedure Code lays down obligations that are very hard to be complied
with. These unrealistic obligations also lead to malpractices being committed by the police

? State of West Bengal v. Manindra Nath Das, AIR 1960 Cal 183 (India); see also Jamuna Chaudhary v. State of
Bihar, AIR 1974 SC 1822 (India); see also Khalak Singh v. State of M.P., 1992 Cr LJ 1150 (MP); see also Saraj
Aslam v. State of UP., 1992 Cr LJ 2244 (All.).
s AIR 1955 SC 196: 1955 Cr LJ 526. See R. Deb, Police and Law Enforcement, S.C. Sarkar & Sons Pvt. Ltd.,
Calcutta, 1982, p. 62; see also Syed M. Afzal Qadri, Police and Law: A Socio-Legal Analysis, Gulshan Publishers,
Srinagar, 1989, pp. 54-55, 59, 128-29; David H. Bayley, op. cit., p. 151.
9 National Police Commission, Fourth Report, MHA, GOI, June 1980, Chapter XXVII, para 27.2, p. 1.

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Indian Journal of Law and Legal Research Volume IV Issue III IISSN: 2582-8878

such as padding evidence, third degree treatment, falsifying the case diaries, etc just to be able
to showcase a good account of their investigation despite the imminent legal disabilities.10

The elements of investigation that are integral to every criminal investigation and are deemed
to be absolutely shrouded under legal confusion and catena of contradictory judgements are:

I. Case Diaries - The role of Investigating Officer (IO)

The intention behind keeping and maintaining of case diaries is considered to be a significant
part of responsibilities of the Investigating Officer (IO). The contents of the case diaries are
supposed to be structured and chronologically coherent. Also, the content should be phrased
narratively, encompassing every relevant factual detail and bringing out the objective truth.
Haphazard or incoherent case diaries fail to serve the very purpose of their creation in the first
place and doesn't do any credit for the person responsible for its maintenance as well". The
legal obligation for the creation and maintenance of these diaries stem from Sec. 172(1) of the
Cr.P.C.

The present system to be followed in case of submission of these diary entries is that they are
to be submitted every day to the Circle Inspector (CI) or The Superintendent of Police (SP) in
special report cases. 12 However, this practice is rarely followed as the general practice of
forwarding the case diary is generally done when the bail hearing of the accused comes up to
aid the magistrate in deciding over the bail proceedings or when the final report or charge-sheet
is filed under Sec. 173 Cr.P.C. The practice of daily submission is generally not followed due
to the heavy workload and the myriad of responsibilities over police officials. This untimely
submission gives a lot of chances of manipulation and alteration of these diaries. The ideal
pattern of these case diaries as discussed in the case of Om Prakash v. State, "the case diary
must be written at the place of investigation and not at the end of the day"". This even though
poses a risk of haphazard information, but provides for less malpractices and tampering with
the investigation details. The risk of compilation of diary entries from personal diaries of IO
and non-submission of daily entries are the non-compliances that are to be avoided and
corrected to ensure a better structure of investigation and its later appraisal by the courts.

10 Report of the Committee of the National Police Commission on Police Structure and Performance, adopted and
signed at Madras on the 21st December, 1979 (Unpublished), Chapter 2: The Present Policing System, para 2.4,
pp. 4-5.
11 Bhagwant Singh v. Commissioner of Police, AIR 1983 SC 826: 1983 Cr LI 1081 (India)
12 Rule 164(f), Orissa Police Manual.

13 1980 Cr LI N.O.C. 67 (Del.); see also Jagannath v. State of Himachal Pradesh, 1982, Cr LJ 2289 (H.P.)

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Indian Journal of Law and Legal Research Volume IV Issue III IISSN: 2582-8878

II. Visiting the spot - The most crucial part of evidence collection

Sec. 157(1) of the Cr.P.C allows the police officials to take cognizance of a crime scene and
proceed to the spot. In general practice, the proceeding to the spot where the supposed
cognizance of the criminal activity took place is a prequel to the registration of FIR. Thus, it is
generally done even when investigation is not even necessary under the provisions of Sec. 156
or 157 Cr.P.C.

The general tardiness of the area routes, especially in rural areas, coupled with geographical
and topological circumstances, generally are effective deterrence for the police to avoid
proceeding to the crime spot. It has been alleged and considered that the police only take
prompt action in cases where an intimation or information of heinous crimes such as murder
or rape were considered, or where there was political influence involved. This creates
irreparable damage to crime scene and relevant evidentiary value that the place held. Also, the
power under Sec. 160(1) allows the discretionary power to summon any person in relation to a
police investigation invites misuse and further prevents immediate response to the crime scene.

III. Collection of Evidence

The collection of evidence is primarily the collection of physical, circumstantial and

documentary forms of evidence. Physical evidence involves the medical samples related to the
commission as well as the tangible objects such as the instrument employed during the
commission. Circumstantial Evidence, on the other hand, denotes the evidence accumulated
after the whole set of facts and their arrangement is concretised so as to ascertain the
circumstances under which the incident occurred or offence was committed. Documentary
evidence includes all the written, printed or electronic records that were relevant to the offence
and consists of items such as bank records, testimonies and statements registered by the police.

The major problem that arises in the collection of evidence is the lack of professional or
technical resources present with the police department. The situation worsens in medico-legal
and chemico-legal case examinations which even though, mandated under Sec. 174 Cr.P.C
(cases of apparent suicides and other types of peculiar cases which involve administration of
chemicals or toxins, etc) are still not followed to perfection. Also, the heavy backlog on the
forensic department of our country also leads to delay in arrest of accused since autopsy reports

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Indian Journal of Law and Legal Research Volume IV Issue III IISSN: 2582-8878

and testing of medical samples take days and weeks1 4 . These undue delays also offer leeway
to the criminals to abscond as well.

The Malimath Committee (2003) makes certain recommendations to make the collection of
evidence a better process and refocus the attention of the police investigation from people to
things. Some of the proposed suggestions were:

i. Creation of a special "cadre of scene of crime officers" to ensure the preservation and
protection of crime scenes and collection of evidence"
ii. Better Forensic Cover provided to the Investigating officers by strengthening the
system of Foreign-Science Laboratories FSL and Central FSLs. At district levels
mobile forensic unit network should be created along-with mini FSLs as well16

.
iii. Time bound submission of reports in Medico-Legal cases.17

Additionally, the Padmanabhaiah Committee related to reforms in the police administration

suggests the idea of equipping police stations with 'investigation kits' and providing mobile
FSLs to every sub-division".

IV. Witness Examination and Testimonies-Reliable Source of evidence and its

credibility

In Indian police system, the most important and heavily reliant mode of evidence is the
witness's statements. Jeremy Bentham also made an observation to this regard that a witness
is the ears and eyes of the justice system. Justice Wadhwa observed "A criminal case is built
on the edifice of evidence, evidence that is admissible in law. For that, witnesses are required
whether it is direct evidence or circumstantial evidence." 1 9

The power to examine witnesses is derived from Sec. 161 and 162 of the Cr.P.C. 20 It is to be
understood that the examination of witness cannot be in the form of precis or in the form of
third person speech 2 1, the statement made has to be essentially in the first person and not a

14 Arvind Verma, Consolidation of the Raj: Notes from a Police Station in British India, 1865-1928, Criminal
Justice History, 2001.
1s Committee on Reforms of Criminal Justice System (Chairman Dr. Justice V.S. Malimath), Ministry of Home

Affairs, Government of India, Bangalore, India, March 2003, Recommendation No. 22(a), p. 242.
16 Ibid, Recommendation No. 22(b).
17 Ibid, Recommendation No. 23.
18 http://www.humanrightsinitiative.org/programs/aj/police/indialinitiatives/summarypadmanabhaiah.pdf>
19 Swaran Singh v. State of Punjab, (2000)5 SCC 668 at 678 (India).
20 Ved Marwah, Reforming Police Investigation in Seminar (430), Justice For All: A symposium on some aspects
of the law and our judicial system, June 1995, pp. 30-31.
21 Sudhir Kumar Mandal, (1950) 2 Cal 343.

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Indian Journal of Law and Legal Research Volume IV Issue III IISSN: 2582-8878

rephrased version of any form22 . The general practice leans to the police official interrogating
witness at the crime spot and later making the statement on a different page which causes
distortion2 3 . Also, Sec. 161 of the Cr.P.C gives the police officials the discretionary power to
avoid reducing into writings the statements of all the witnesses2 4 . This actually makes the police
capable of ignoring important witnesses who are necessary for the accused defense and casts a
shadow over the reliability of the IO in general2 5

.
Sec. 162 of the Cr.P.C is inclusive of the principle that no witness has to put a signature on his
statement, nonetheless, the presence of signature 2 6 doesn't make the statement inadmissible but
creates suspicion over its veracity and prompt further inquiry over the accurateness of the same.
Also, a police statement cannot be used for any other purpose other than for its initial purpose
which is the idea of aiding the judiciary in providing justice2 7

.
Further, the idea of Sec. 160(3) also makes it compulsory that women and minors cannot be
called to the police station for recording their statement but instead the police has to reach over
the residence in order to record their statement. The Supreme Court in the landmark judgement
of Nandini Satpathy28 , therefore, to underline the importance of the aforementioned regulation,
states

"We wish to note our regret, in this case, that a higher-level police officer, ignorantly insisting
on a woman appearing at the police station, in flagrant contravention of the wholesome
provision to Sec. 160(1) of the Cr.P.C. Such deviance must be visited with prompt punishment
since policemen may not be law unto themselves expecting others to obey the law. The wages
of indifference are reprimand, of intransigence disciplinary action. There is public policy, not
complimentary to the police personnel, behind this legislative prescription which keeps
juveniles and females from police company except at the former's safe residence."

22 Bommabayina Ramaiah v. State of A.P., AIR 1960 AP 160: 1960 Cr LJ 311.

23 Bejoy Patra v. State, 1951 Cr LI 1307 (Cal.); In re Appalaswamy, 1957 Cr LI 1227 (A.P.); see also Noor Khan
v.
24
State of Rajasthan, AIR 1964 SC 286: 1964(1) Cr LI 167
Law Commission of India, Forty-First Report, Ministry of Law, Government of India, 1969, Vol. II, para 14.9,
pp. 69-70
25 Noor Khan v. State of Rajasthan, AIR 1964 SC 286: 1964 (1) Cr LJ 167; see
also Purshottam v. State of Kutch,
1954 Cr LI 1751 (SC); see also Tikeshwar Singh v. State of Bihar, AIR 1956 SC 238: 1956 Cr LJ 441 (India).
26 State of UP. v. M.K Anthony, AIR 1985 SC 48 (India); see also Tellu v. State, 1988 Cr LJ 1063 (Del.); see also
Zahiruddin v. Emp., 48 Cr LJ 679 (P.C.); see also State of Kerala v. Samuel, 1961(1) Cr LJ 505 (Kerala-F.B.).
27 Hazari Lal v. State (Delhi Administration), AIR 1980 SC 873: 1980 Cr LJ 564 (India); see also M.S. Reddy v.
State Inspector of Police, 1923 Cr LI 558 (AP); see also Mohd. Islam v. State of UP., 1993 Cr LI 1736 (All.); see
also Hamidulla v. State of Gujarat, 1988 Cr LJ 98 (Guj.); see also Fateh Singh v. State, 1995 Cr LI 96.
28 Nandini Satpathy vs. P. L. Dani and Ors., 1978 SC
1025 (India).

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Indian Journal of Law and Legal Research Volume IV Issue III IISSN: 2582-8878

Another pressing issue related to the proper witness evidencing, is the fear among being a
witness in a case and the apparent reluctant nature of citizens. Apart from inadequate witness
protection programs and the general unpopular opinion regarding police officials, the idea of
reimbursement of witnesses for the travel and other ancillary allowances is one that requires
correction. To sum this ideology, the apex court stated in the case of Swaran Singh v. State of
Punj ab 29:

"A witness in a criminal trial may come from a far-off place to find the case adjourned. He has
to come to the Court many times and at what cost to his own-self and his family is not difficult
to fathom. It has become more or less a fashion to have a criminal case adjourned again and
again till the witness tires and gives up. It is the game of unscrupulous lawyers to get
adjournments for one excuse or the other till a witness is won over or is tired. Not only that a
witness is threatened; he is abducted; he is maimed; he is done away with; or even bribed.
There is no protection for him. In adjourning the matter without any valid cause, a Court
unwittingly becomes party to miscarriage of justice. A witness is then not treated with respect
in the Court. He is pushed out from the crowded courtroom by the peon. He waits for the whole
day and then he finds that the matter adjourned. He has no place to sit and no place even to
have a glass of water. And when he does appear in Court, he is subjected to unchecked and
prolonged examination and cross-examination and finds himself in a hapless situation. For all
these reasons and others, a person abhors becoming a witness. It is the administration of justice
that suffers."

Thus, to prevent miscarriage of justice, a sustainable program regarding witness protection and
reimbursement is thoroughly recommended to ensure that the oral testimonies become an
integral part of the investigation procedure and affect more and more convictions.

V. Search and Seizure-Trickier and cold-blooded crimes uncovered

Sec. 165 of the Cr.P.C provides unfettered power to the police authorities to conduct search
and seizure of incriminatory evidence. Sec. 100 Cr.P.C, on the other hand, provides the
procedural safeguard in relation to a search and seizure operation. The fact that the illegality of
procedure involved in seizure does not diminish its admissibility is the main cause of
irregularity in search and seizure operations.

29 (2000)5 SCC 68 at 678.

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Indian Journal of Law and Legal Research Volume IV Issue III IISSN: 2582-8878

The basic steps involved in providing safeguard to the searched provide the mandatory
presence of two respected and independent witness before the search is conducted. Also, to
prevent planting of evidence by the police officials, it is held mandatory that the police officials
in the search and seizure operation be checked before allowing them entry into the premise so
as to prevent any malpractice by the police itself30 . Further, in case of presence of females, the
search of the women can only be done by women officer, with special regards to maintaining
decency. Also, all opportunities shall be provided to the female occupant to withdraw in case
she is occupying the residence, as provided by Sec. 47(2) of the Cr.P.C.

The general trend in the search and seizure operations is two-fold. Since Sec. 165 of the Cr.P.C
is to be compulsorily followed, the failure of the same can lead to a search operation being
considered illegal or invalid.31 The Orissa HC in Radhakrishna Singhari v. State of Orissa",
held the search to be invalid as the IO in a case under the NDPS Act", had neither mentioned
in the case diary or in the seizure list that the accused were given the option to be searched
before the Magistrate or the Gazetted Officer as required under the statute3 4 . The Court
observed that strict compliance of the law on the points and to keep contemporaneous record,
while effecting search and seizure, is imperative on part of the IO. In VS. Kuttar Pillai v.
Ramakrishnan3 5 , it was held that even a Magistrate issuing a search warrant u/s. 93 Cr.P.C.
should record reasons therefore. The court in Hiralal v. Ramdulare 36, held that the search
without complying with the preliminaries laid down in s. 165 of the Code could not be said to
have been done in good-faith.

However, the second idea behind these operations, and the accurate one, is the idea that
irregularity in procedure or non-compliance is generally not considered to be criminal
trespass3 7 . Irregular search operations by the police can be resisted but there can be no criminal
threats to the police official or obstruction once the search is finished 38 . Also, the presence of
procedural irregularities does not denigrate the evidentiary value of searched goods and a
conviction can be made on the basis of such seized evidences 39
.

30 Cherian Lukose v. State, 1968 Cr U 169; see also State of Bihar v. Kapil Singh, 1969 Cr LI 278.
31 New Swadeshi Mills of Ahmedabad v. S.K Ratton, (1967) 9 Guj LR 364.
32 1995 Cr U 3083 (Ori.)
33 Narcotic Drugs and Psychotropic Substances Act, 1985.
34
Narcotic Drugs and Psychotropic Substances Act, 1985, @50.
3
s AIR 1980 SC 185: 1980 Cr LJ 196.
36
AIR 1935 Nag. 237.
37 B.S. Thind v. State of HP., 1992 Cr U 2935 (HP).
38 Shyam Lal, AIR 1972 SC 886: 1972 Cr U 638.
39
Asst. Collector of Central Excise v. Wilfred Sebastian, 1983 Cr L NOC 43 (Ker.); AIR 1955 NUC M.B. 3862.

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The idea of sustained evidentiary value in cases of illegal search operation is in stark contrast
with the "exclusionary rule of evidence" in American Legal System where it was held in the
case of Mapp v. Ohio 40, that all evidences seized through an illegal process, upon motion by
the defendant, can be excluded from trial. This method enforces legal search operations and
effectively curtails the effectiveness and thereby, occurrences of illegal search operations 4 1

.
This rule is suggested to be followed even in Indian criminal justice system to curtail the
fundamental rights violations conducted by police officials during these searches.

VI. Test Identification Parade-The last straw in criminal identification

TIPs are a great procedure to strengthen the case of the prosecution and is a fair way of
providing strong and accurate evidence against the accused. TIPs are either conducted for
identification of accused by witnesses who are not his acquaintances, or for identification of
stolen property.

To provide for the fairness in the system, the identity of the accused has to be completely
hidden from the witness and the general public using systems such as a screen or a purdah,
even during police detention. 42

TIPs require the presence of a magistrate or the presence of two or more people (also known
as panch witness) who are not, in any way, connected with the case, who have the responsibility
of ensuring that such TIPs are conducted in a fair manner and no collusion is there 43 .

Police Officers are responsible for the arrangement of the TIP, but after that, the police are not
even allowed to be present during the identification 44, the whole process and the reliability of
the identification is done by the panch witness. According to the mandate of Sec. 162 of the
Cr.P.C, presence of the IO or a police official during the time of identification make such
identifications inadmissible in a court of law 45 . Apart from that, the police are required to take

40
367 U.S. 643 (1961)
41 Jerome H. Skolnick, Justice Without Trial: Law Enforcement in Democratic Society, John Wiley & Sons, Inc.,
New York, 1966, pp. 211, 214.
42 State of U.P. v. Munni Dhimar, 1954 Cr LJ 1819; see also Parakinkar v. Tripura State, 1955 Cr LJ 1292
(Tripura); see also Asharfi v. State, 1961 (1) Cr LJ 340 (All.); see also Ramanathan v. State of T.N, AIR 1978 SC
1204: 1978 Cr LJ 1137.
43 Bhaiyalal v. State of U.P., 1952 Cr LJ 143; see also Ramkrishna v. State of Bombay, 1955 Cr LJ 196 (SC); In
re Narayan Singh, 1965 (2) Cr LJ 507 (M.P.).
" Ramkishan Mithanlal, (1954) 57 Born LR 600.
4s National Police Commission: Issues for Rethinking, APH Publishing Corporation, New Delhi, 1998, pp. 66-67

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Indian Journal of Law and Legal Research Volume IV Issue III IISSN: 2582-8878

every necessary step to make sure that the witness does not see the property or the accused that
has to be identified.

Since there is a risk of identification as well as influence of the accused after securing bail, it
is important to mention that these parades have to be conducted without undue delay 46. 47
Also,
the witness has to make sure that he provides the metric for identification of the accused with
reasonable evidence such as scars, body-marks. Therefore, clear reasoning for the identification
is necessary to weed out fabricated claims.

The National Police Commission also suggests the restoration of property identified during
TIPs to be a speedier process as the current system allows for the release of the goods to the
owner at a very later stage by the courts which induce a significant risk of damage to the goods
as well 48
.

VII. Arrest of suspects

Even though many legal scholars do not deem the arrest of an individual to be a part of the
investigation processes, yet it is important to understand that arrest is a police procedure that
apart from being an integral part of the whole criminal justice system, is the birthchild of
investigation 49 . Without an essential operating procedure in the overview of the police arrests,
a paper talking about investigation reforms seems more like a half-boiled egg.

Sec. 41 of the Cr.P.C provides the power of arrest in relation to any cognizable offence, i.e.,
the offences which do not require a warrant for arrest as defined by Sec. 2(c) of the Cr.P.C.
The implicative derivation of Sec. 41 along with Sec. 2(c) and Sec. 154 conveys the idea of
arrest being mandatory as an element of investigation, on any grounds such as reasonable
suspicion, written complaint, or even credible information5 0 . Even a reasonable apprehension
of commission of cognizable offence allows police to arrest an individual for prevention of the
crime according to Sec. 149-151 Cr.P.C5i. Apart from that, the power of arrest without warrant
is also provided under Sec. 34 of the Police Act, 1861 as well as a plethora of other criminal
statutes such as UAPA52 , NSA53 , Arms Act, SC/ST Prevention of Atrocities Act, Special Local

46
Antar Singh v. State of Madhya Pradesh, AIR 1979 SC 1188; 1979 Cr L 715.
47 Hazara Singh v. State, 52 CR LJ 482 (Cal.); see also Ganga Singh v. State, 1956 Cr LJ 181 (All.).
48 National Police Commission, Fourth Report, June 1980, Chapter XXVII.
49 Baldev Singh v. State of Punjab, 1975 Cr LJ 1662(Punjab).
so Avanish Madhukar Mukhedkar v. State of Maharashtra, 1983 Cr LJ 1833 (Born.).
s1 Jagdish Chander Bhatia v. State, 1983 CrL NOC 235 (Del.).
s2 Unlawful Activities Prevention Act, 1967.
s3 National Security Act, 1980.

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Laws (SLL) etc. where the power of arrest has been extended unabashedly over the police. The
idea of some of these laws considering morality or ideology to be a metric constitute such
offences to be victimless crimes or violation of social laws in which the police acts as a
surrogate complainant (Arrests under UAPA or NSA generally have a wide definition of the
crime which are generally distorted to make unlawful arrests). Thus, the police can easily
register a complaint under these offences and arrest the citizens on their absolute prerogative.
This becomes a very dangerous privilege and there have been multiple misuses of it as well.

Even in cases of non-cognizable offences, the power of arrest is provided if it is committed in

the presence of a police official and the officer is unsure of the accused's credentials such as
name or residence details being true as and according to Sec.42(1) of the Cr.P.C.

Even in absence of malafide intention, the idea of police being given a lot of areas where
presumptive capability of personal judgement is applied in cases which are strictly restricted
by time makes procedural propriety absolutely essential to avoid violations or errors in arrests5 4
as they also are a form of social disrepute to the general public apart from being a constitutional
violation of personal liberty.

The procedure of arrest is provided under Sec. 46 of the Cr.P.C and non-compliance shall make
an arrest to be considered worthless and inconsequential in the eyes of law 56. Handcuffing is
not considered necessary and even a verbal declaration is deemed to be sufficient to complete
arrest. Even telephonic messages are deemed to be effective arrest orders. In cases of resist
or evasion, the police have the authority to do everything possible to effect the arrest according
to Sec. 46(2) of the Cr.P.C5 8
.

Sec. 169 of Cr.P.C provides an impression that custody can be taken only on the idea of
anticipation with little to no regard over evidential credibility while Sec. 170 provides for the
passing of an accused in custody over to the magistrate in all non-bailable cases as well as
bailable ones on the nexus of reasonable grounds or convincing evidence. These provisions
allow for an umbrella protection of a police officer on the rationale of an unjust arrest being a

s4 Subodh Chandra Roy Choudhri v. King Emperor, AIR 1925 Cal. 278; see also Devi Dayal v. King Emperor,
AIR 1929 Lah. 720.
ss P. Devlin, The Criminal Prosecution in England, Oxford University Press, Oxford, 1960, pp. 12-13.
56 Roshan Beebi v. Joint Secretary to Govt. of Tamil Nadu, 1984 Cr LJ 134 (Mad.): AIR 1984 NOC 103 (Mad.);
Kutlej Singh v. Circle Inspector of Police, 1992 Cr LJ 1173 (Knt.).
s7 Maharani of Nabha v. Province of Madras, (1942) Mad 696.
58 Nazir v. State, 1951 SCC OnLine All 198 (India).

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bonafide mistake 59 . Also, the illegality of an arrest not being accounted for during trial or
having no effect on the criminal prosecution 60 also provides a dangerous leeway to the police
in making arrest a flexible tool of oppression and thus this umbrella protection should be
stripped away to ensure greater police accountability and a general positive attitude of the law
enforcement agencies towards better police custody and arrest procedures.

The NPC has reminded the observance of arrest as being discretionary and not mandatory.
Further, the supreme court in the case of Joginder Kumar v. State of UP. and others 61, reiterated
the idea of arrests should not be conducted by the police officer only on the grounds of its
legality. The judicial and justiciable exercise of arrests is paramount to the power of arrest.

The various statutory, constitutional and judicial safeguards regarding the procedure of arrest
requiring an amalgamation in the form of a central legislature to promote effective
implementation and regular enforcement as legal precedents are often ignored are as follows:

i. Sec. 50 Cr.P.C makes it mandatory for every arrestee to be informed of the offence
allegedly committed and the grounds of his arrest. Art. 22(1) of the COI also reiterates
this concept. Also, the right to legal consult is also guaranteed under this article6 2 . This
being a constitutional obligation, non-observance of this regulation effectively leads to
violation of the procedure established by law6 3
.

ii. Sec. 51 Cr.P.C prescribes the issue of a receipt for all arrests effected under any non-
bailable offence or non-furnished bailable ones to provide for clear accountability of
the same 6 4
.

iii. Sec. 54 Cr.P.C provides the right of medical examination to an arrestee and it is the
duty of the magistrate to provide the information and facilitate an order providing for a
medical practitioner.
iv. Sec. 56, 57 & 76 Cr.P.C and Art. 22(2) of the COI provides that every accused or
detainee has to be reached to the nearest magistrate within a day (24 hours) of his arrest
or detention excluding the travel time between the courts and the police station.

59 Bhawoojivaji v. MuljiDayal, (1888) 12 Born 377; Dalip, (1896) 18 All 246.

60 Emperor v. Madho Dhobi, (1903) 31 Cal 557; see also Emperor v. Ravalu Kesigadu, (1902) 26 Mad 124.
61 AIR 1994 SC 1349.
62 Vikram v. State, 1996 Cr U 1536 (All.)
63 Madhu Limaye, AIR 1969 SC 1014; see also Christie v. Leachinsky, (1947) 1 All ER 567.
64
Rabindranath Prusty v. Orissa, 1984 Cr U 1392 (Ori.)

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v. Sec. 160(1) Cr.P.C prescribes that no female can arrested after the sunset and the
completion of an arrest requires the compulsory presence of lady constable. Also,
women have to be kept in a different lockup from their male counterparts.
vi. The SC in the case of DK Basu v. State of WB 65, laid down additional constitutional
and procedural safeguards for arrest procedures that are mandatory to be followed and
even allow for a contempt proceedings or enquiry due to the lack thereof. The lack of
statutory codification of these regulations hamper their enforceability and a central
statute aims to include all of these regulations. The eleven commandments, in essence,
are:
a. The police officer should have "accurate, clear and visible" name tags and
identification while examining or arresting an accused.
b. An arrest memo has to be prepared, to be signed by the arrestee as well as one
witness, preferably a family member or a local respected citizen.
c. Right to dissipate the information related to the arrest to a loved one or well-wisher
as soon as practically possible along with the location of detention.
d. Telegram dissipation of information in case of family or well-wisher being a
resident of another state within twelve hours of detention.
e. The Right to inform some relative about the arrest should be communicated at the
time of arrest to the unaware individual.
f. Case diaries should have all the relevant entries related to the arrest of an
individual, such as the proceedings related to the arrest, etc.
g. Medical examination has to be provided on request of the arrestee at the time of his
arrest.
h. A medical examination has to be mandatorily conducted every two days (fourty
eight hours) during custodial detention.
i. Area Magistrate has to be supplied with a copy of the arrest memo and related
documents for record.
j. Right to meet an attorney during interrogation is to be followed. Though, the
presence is not mandatory during the complete interrogation.
k. Every police station or IO has to depict the information related to arrests on a public
forum or board. Also, the intimation of an arrest including the details related to the

65
AIR 1997 SC 610 (India).

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location of custody are to be provided to the control rooms as well within a

stipulated time.

CONCLUSION

The Criminal Investigation procedures in India is still at a rudimentary stage and provides a lot
of scope for manipulation of evidences and eventual miscarriage of justice. Furthermore, the
inherent lack of dependency of the police over material evidence and more over oral
testimonies also result in a lot of cases related to police brutalities and custody torture since it
is the only remedy left for the police to muster up a case. Vague and unfettered search and
seizure powers also do no benefit to the existing distrust towards the police and their villainous
image. Apart from that, these powers are also capable of causing gross and unjust violations of
the fundamental rights of the citizen of our country. Thus, the various above-mentioned
suggestions should be taken into consideration to make the investigation less invasive and more
effective as a whole. The current system of law through case-laws should be discontinued and
a central legislation be formed apart from the Chapter XII of the Cr.P.C to provide better
implementation and less misuse of police powers in order to achieve the goal of establishing a
true welfare state and not a state where the law enforcement agencies themselves indulge in
the most illegal acts. In a nutshell, the depiction of criminal investigations should be one that
involve consistency, quality and a certain measure of responsibility from the police. Every
crime reported should be investigated thoroughly and since investigation is a time bound
activity due to issues like contamination of crime scene or absconding suspects or criminals, it
is essential for the police to act efficiently and in a time-bound manner. The idea of irregular
and unchecked investigative powers given to the police coupled with the lax attitude of the
police department is another tombstone over the idea of a welfare state, since no welfare can
exist or deem to exist without a healthy relationship between the law-enforcers and the citizens.
It is important to understand that the average joe comes in contact with the police in most cases
when he himself has some complaint or is entangled in an offence or allegation. In both these
scenarios, the citizen is exposed towards the sincerity and attitude of the police by their
investigative practices. Understanding the contours of police-public relations clearly suggest
that the streamlined, legal, non-intrusive and effective investigation procedure would go a long
way in improving the image of the police and enabling better access of the citizens towards
justice. Another important dimension that is important to be considered while looking at a
standard operating process is the ease of inclusion of comfort mechanisms such as counsellors
for the victim, rehabilitation of juvenile offenders, etc as a better procedure would actually

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keep the police abreast as to the various tools that they can exercise to make the situation better.
This actually originates from a better investigative model as the primary contact of the police
with both the victim as well as the offender are vis-a-vis the investigation procedure and if the
access point is one that shows a way to both the police as well as the people involved, such
tools for better social conditions would be often accessed as well. These inherent ideas press
upon the law-makers to affect change soon enough and make the whole concept of upholding
the basic principles of justice, equity and good conscience a vision that can be achieved by the
Indian administrative machinery.

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