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Initiationaofl i criminal case
S
Unit 3
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 What is cognizable & non-cognizable offence?

 Cognizable offence- Police officer may arrest without warrant.

 Non-cognizable offence- Police officer cannot arrest without warrant.

Difference between investigation, inquiry& trial

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Collection of li
Done by court Not defined. It
n
Investigatio

Inquiry
a

Trial
evidences by- PO
or any other person n j begins after charge
framing
A
 Outline of criminal proceeding:

INVESTIGATION INQUIRY
FIR Police report Issue of Process

m adoct. To accused

ar
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Judgement

a li Trial charge framing

n j TRIAL
A
 Investigation for cognizable & non- cognizable
offences:
Setting investigating agency into motion

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Purpose of Investigation- It is a legally established fact-finding process conducted
in an impartial and objective manner, with the aim to establish the relevant facts and
make recommendations in this connection. ar
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 First information report (FIR) u/s 154:
 When information is received of an cognizable offence by Police officer in
charge, then it to be registered by him.
 If P.O. refused to register FIR, then person can go to superior officer (SP,
DGP etc.)
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 Superior officer may direct P.O. to register FIR & initiate investigation or he
himself can investigate. S h
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 For FIR information can be in writing or orally.
 Any person aware of commission of an offence can give information.
 FIR cannot be ante-time i.e. before incident took place.
Occurrence report (u/s 157)- SHO after registering FIR/information will forthwith
send a report to the area magistrate.
a
m becomes suspicious about the role
In case of delay in sending occurrence reportrcourt
of police & also about FIR.
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S. 159- when PO decides not to investigate and sends report to Jud. Mag. Then JM
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can order investigation under this
n
section or can hold preliminary inquiry.
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Non-cognizable report: Information for non-
cognizable offence u/s 155
 When a non-cognizable offence is committed in the territorial jurisdiction of the police
station.
 Area magistrate will order for investigation, who has power & competency to try.
a
 Police officer has all the powers to investigate but he cannot arrest without warrant.
mif any one is cognizable offence then nature
 r
When two or more offences are committed,
a
of case will be cognizable case.
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 offence
Schedule. I

cognizable Non-cognizable
s. 154
m a
ar s. 155
police JM
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li
Mag. u/s 202 can order
investigation
s. 154 FIR

S. 154(3)
s. 190(1)(a)
Complaint
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SP etc. s. 190(1)(b)
S. 190 (1)(c ) A
S. 156(3)
To Mag.

Mag. can
order to
reg. FIR
Procedure for Investigation u/s 157
• Sending a report to the magistrate- A report called occurrence report is sent to
the magistrate forthwith i.e. without any delay
• This is the preliminary report which acquaints the Magistrate that the police officer
shall be investigating that particular case.
There are three types of reports are required to be prepared at three different stages of
investigation are as follows.
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• a
1. Section 157 requires a preliminary r
report to be submitted from the officer-in-
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charge of a police station to the Magistrate.
• a
2. Section 168 requiresjthel i
submission of a report from a subordinate officer to
the officer-in-charge of the n
station.
A
3. Section 173 requires a final report to be submitted to the Magistrate as soon as
the investigation is completed.
 S. 156(3) Police officer’s power to investigate cognizable case. —

 (1) Any officer in charge of a police station may, without the order of a Magistrate, investigate any
cognizable case which a Court having jurisdiction over the local area within the limits of such station would
have power to inquire into or try under the provisions of Chapter XIII.

 a
(2) No proceeding of a police officer in any such case shall at any stage be called in question on the ground
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that the case was one which such officer was not empowered under this section to investigate.
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(3) Any Magistrate empowered under section 190 may order such an investigation as above- mentioned.
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 After 154/154(3)/156(3)-
 Preliminary report: (Occurrence report) to be send u/s-157 -------------------------to JM
 Procedure to submit report given u/s 158.
 U/s 159 gives power to the magistrate either to investigate or can hold preliminary inquiry.

Medical examination:
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Accused S.
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53
Rape victim s.
 Medical examination
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is done
164A

n a in order to get evidences.

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 Delay in filing FIR & its effects: without any proper explanation, court may raise suspension about FIR & it
may not attach proper evidentiary value or testimony to the witness.
 In rape cases delay is self explanatory as there is an element of fear and societal stigma attached to the victim of
the offence.(State of Punjab v. Gurmeet Singh & others, 1996)
 Evidentiary value of FIR: (Indian Evidence Act)

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• S.6 same transactionar
Substantive
• S.8 conduct
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evidentiary value IEA
•
•
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S. 21 admission

•
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S. 32(1) Dying Declaration
S. 27 Information leads to discovery of facts
A
• S.157 corroboration
Procedural • S.145 Contradiction
evidentiary value IEA • S.159 Refreshing memory
 Examination of witnesses S. 160-164A
S. 160- appearance of witness (written order by police)
 Any person who is acquainted with the facts of the case be called.
 Any witness or accused or victim may be called.
 This provision intended to give special protection to children &women against probable inconveniences that might be caused by abuse of police
powers.
 Exception from calling in Police Station-

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

Male: under 15years or above 65years of age.
Women
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 Mentally or physically disabled.
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S.161- Examination of witnesses

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PO can record the statements of the accused & material witnesses.


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Such recordings should be made during the course of examination.
Witness is bound to answer although he can refrain from answering self-incriminatory ques. (Nandani Satpathi v. P.L. Dani,1978).
 Any person can be examined including accused.
 The IO may reduce into writing any statement made to him in the course of examination of a person & if he does so , he shall make a separate &
true record of the statement of each person whose statement he records.
 Person making the statement is not required to sign it, as tis may lead to abuse of police power.
 162- Statement made in the course of investigation shall not be signed by the person taking it
 Statements made during course of investigation & not only course of examination.
 Any statement if reduced to writing must not be signed by the person making it.
 Purpose is to keep the person free while making the testimony in the court.

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 No inducement be made by PO while examining witnesses. (r/w 24/25 IEA)
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u/IEA.
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 Exception to this rule- Limited applicability is there for such statement i.e. for corroboration, contradiction

S
Evidentiary value of statements made to the police : h
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There are 3 types of statements made to the police.
1. statement recorded as FIR.
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2. 2. Statements made during course of investigation.
3. 3. statement recorded by police but not fall under above 1 & 2 category.
 such statements can be used for corroboration, contradiction etc. only
 They are not considered as substantive piece of evidence, bcz its not made during trial, not given on oath nor
tested by cross-examination.
 Confessions (S.164)

 Confessions to be recorded during the course of investigation & not after commencement of inquiry or trial.
 Any confession made to the police is totally inadmissible in evidence.
 Special procedure is given to record confessions to ensure its voluntarily & freely made.
 It is to be recorded by JM I or MM.


PO cannot record confessions as it hit S. 25, 26 IEA.
It cannot be recorded on oath.
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 It should be made voluntarily.
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Procedure for recording confession: (A memo is to be made by mag.)
JM is duty bound to give warning
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that accused is not bound to confess.
JM explains to the accused
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 Confessions be recorded in manner provided u/s 281.
 A
A confession recorded in accordance with special procedure can be used as substantive piece of evidence.
 It is admissible in evidence.
 Executive mag. Cannot record a confession.
Note:
 A retracted confession is a statement made by an accused person before the trial begins, by which he /
she admits to have committed the offence, but which he/she repudiate at the trial.
It is unsafe to base the conviction on a retracted confession unless it is corroborated by trustworthy
evidence.
 a
Where more persons than one are being tried jointly for the same offence, a confession made by any
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against his co-accused. ar
one of his co-accused can be taken into consideration by the court not only against the maker but also

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 Recording of Statements(non-confessional) u/s 164(5)

 This is not admissible as substantive piece of evidence.

 Such statements can be used for corroboration, contradiction purpose in trial.
 Statement can be recorded of any person or accused.

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S. 164A: Medical examination of the a r
victim of rape
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This section has been added to provide for a medical examination of the victim of a rape by a registered
i by the Government or a local authority and in the absence of
medical practitioner employed in a hospitallrun

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such a practitioner by any other registered medical practitioner.
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 Investigation when not completed withing 24hrs. u/s 167

Period of
After Production before JM-
Concept of Police
m apolice
remand
Default bail
u/s 167(2)+
arrest PO
can keep Remand
ar for max.
15 days
309
accused
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for 24hrs
When PO wants to go After 15

n j a
for further investigation days,
judicial Executive
A custody for
max.
magistrate
may grant
 If police considers it necessary to detain such a custody max.
90/60days
person for a longer period for the purpose of investigation for
he can do so by obtaining special order of mag. 7 days
 DEFAULT
for recording BAIL (s.
accused confessions 167(2)
absconding accused arrested
JM
INVESTIGATIO 3 options
N s.167(1)
CASE
Charge sheet
DAIRY
s. 173
FIR CHARGESHEET 24HRS.
POLICE Judicial
Police
station a
s.173 closure
report

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COMPLETED
REMAND custody

interrogation &
confessions
ar
s.170
CHARGE


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If investigation not completed within 24hrs, accused be produced before mag.
 PO might ask for remand for investigation

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

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Once 60/90 days are completed accused cannot be kept in custody if investigation is not completed. Accused will be released on bail.
n
 A
JM II cannot grant police custody. Judicial custody can be granted by him until HC empowers.
Police/judicial custody orders be passed in the presence of accused only else it will be illegal.
 After 6 months also investigation is not completed then mag. Will close the case automatically. PO can go to CoS for permission for
investigation.
Concept of default bail: S.167(2)
 when investigation is not completed within 60/90 days(judicial custody) & chargesheet is not filed then accused gets a
right to bail, he/she can be released on bail.
 If chargesheet is filed upon completion of 60/90 days then mag. Has unlimited competency to grant judicial custody
a
for entire period of inquiry & trial. Then no que. Of default bail will arise.
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Procedure to be followed on completion of investigation
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Release of accused when evidence deficient: S. 169
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Here some investigation must be done by PO, then release accused if there is no sufficient evident found.
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Cases to be sent to mag. If evidence sufficient: S.170
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Police Closure report u/s 173(2)/169
FIR
report Or
Chargesheet u/s 173(2)
 Default Bail: accused will have to file an application for such bail, cout will decide same day forthwith.
 Upon completion of 60/90 days, right to default bail is an indefeasible right of accused. But such right gets
defeated if application not files or bail-bond not furnished.
 If charge sheet is filed upon completion of 60/90 days, then competency of mag. To grant further custody
of accused is examined u/s 309 & not s. 167. S309 gives mag. an unlimited competency to grant judicial
a
custody for entire period of inquiry & trial . In such case right to default bail will not arise.
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Case: Sanjay Dutt v. State of Maharasthra (1994 SC)
ar

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Right of accused to default bail will not be defeated on filing- incomplete charge sheet or erroneous charge
sheet by mistake. S

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When charge sheet & bail application is made simultaneously then chargesheet be preferred.

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 Police report, Protest petition, supplementary investigation (S.173)
 PO on completion of investigation file a chargesheet & write opinion regarding facts.
 Mag. Not bound by the police report, even if closure report is filed he can take cognizance if he thinks
fit.
Protest petition:
when the aggrieved person or complainant is not satisfied with the police report which filed before the Concerned

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Court; the Complainant may move the petition against the negative police report which is called the Protest Petition
and the same is treated as Complaint under Section 190 of Criminal Procedure Code.

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(Gangadhar Janardhan Mhatre v. State of Maharasthra,2004 SC)
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either three orders-
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JM if not taking cog. He shall inform informant, so that he is free to file a protest petition. Mag. Upon such(protest) petition can pass

 He may still not take cognizance. A

 He may take cognizance upon police report.
 He may not take cognizance upon police report. Rather he may convert protest petition into complaint & he may take cog, on
complaint & conduct complaint proceedings.
 Case dairy: S.172
 It is not a substantive piece of evidence
 It is used to contradict PO i.e. investigating officer.
 It is also used for refreshing memory.
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 A case diary is a record of daily investigation into a case.
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 The case diary may not as such be used as evidence during the trial as it is
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used to aid the trial.
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 S.173 final report
 This section requires a final report of the police officer be sent to the Magistrate as soon as the investigation is completed.
 There is no upper limit for investigation, but PO shall investigate promptly, without delay.
 For summons case- 6 month is the limit.
 Police officer should forward the report related to the case to the Magistrate -
 all the documents or relevant extracts of the same.

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the statements recorded under section 161 of all the persons whom the prosecution proposes to examine as its witnesses.

Types of Police report:

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Closure report Final report Summary report
Further investigation (Supplementary investigation):
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Referred Charge sheet Cancelled report Negative report


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It is the continuation of earlier investigation not a fresh investigation.
 A
If investigating agency comes across new material they can carry out further investigation.
 After taking cognizance by mag. No order of further investigation can be ordered.
 Quick Revision:

s. 437,439 Clouser report
Bail S.173/ or,
after charge sheet s.
examinati
on arrest 15days 60/90 days 173

FIR
160
24 hrs.
m a Police remand

r
Appearance Police report
Search &
Default bail
seizure
161,162,163

h a When charge
sheet not filed in
examination

li S s.169
Release
60/90 days
Investigation
complete

n j a accused

A Case dairy – be prepared throughout investigation.

 Inquest Report:
S. 174- Police to inquire & report on suicide etc.
 Punch witnesses will sign the report & statement be taken u/s 161(3)
 Dowry death/abetment to suicide/homicidal death of women in 7 yrs.
 Police officer goes to the spot inquire about death cause.


Clause (1) & (2)- nearest mag. Shall hold inquest.
Other clause- Any mag. Can hold inquest.
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S.176- Inquiry by mag. Into cause of death.
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3 types of cases-
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1. Custodial disappearance
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2.
3.
Custodial rape
Custodial death A
 Inquest report is not a substantive piece of evidence, when PO is called it can be used for corroboration/contradiction.
S. 175: Power to summon person
 Punch witnesses can be summoned to appear.
 Statements made by them not to be signed.
 Case: Lalita Kumari v. Govt. of Uttar Pradesh, 2013 (1) SCALE 559
Latita Kumari v. Govt. of Uttar Pradesh, Crl. M.P. no. 5029 of 2014 in writ petition (Crl.) No. 8 of 2008

FACTS: The petitioner, a minor girl was kidnapped by local goons. Her father, Bhola Kamat went to police station to
lodge an FIR which police refused. The father further went to the superintendent of police and under his direction a FIR
was registered. But even then, investigation was not started, and the police did not take any measure to nab the accused
or recover the minor girl either.
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Hence, a writ petition was filed under article 32 before the Supreme Court.
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ISSUE: Whether the police officer should compulsorily register an FIR under Section 154 of Code of Criminal
Procedure, 1973 relating to Cognizable offence or the police officer to check the authenticity of the complaint can
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conduct a preliminary inquiry before registering an FIR?
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GUIDELINES:
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
A
Registration of FIR brings the criminal process into motion & also makes a documentation of the initial facts so that
later the PO is not able to make alterations in the initial facts. This will prevent any foul play by the police.
 FIR is the first step to watch taking justice to the victim moreover it promotes the rule of law, every victim of a crime
is assured that criminal process will be initiated against the accused.
 FIR brings the matter on record & initiates the investigation process & it sets the law into motion. The less is the FIR
lodged the more will be the situation of lawlessness.
 FIR shall be compulsorily registered & the fact that information appears to be false or insufficient is to be
examined after lodging of the FIR. PO has to first lodged the FIR & thereafter he may investigate & if the
FIR found to be false then he can refuse to investigate & send the occurrence report to the JM. However, if
the information does not disclose the commission of a cognizable offence, then PO may first conduct
preliminary investigation to find the nature of the offence.
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It was also held that in some cases of cognizable offence a preliminary inquiry can be done by PO before
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lodging FIR, commercial offences, corruption cases, medical negligence & also cases where there have
been delay in lodging FIR(3 months or more). However, the court held that preliminary inquiry shall be

S h
conducted within 7 days. Later on, upon a review the period was extended to 15days.
 li
The SC rejected the argument that compulsory registration of FIR will result into more arrest, it was held
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that arrest is not compulsory & therefore it is not necessary that on every FIR there will be arrest.
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A
 State of Orissa v. Sharat Chandra Sahu, (1996) 6 SCC 435 19

 Offences of:-

s. 494 IPC s. 498A IPC

Bigamy cruelty

Non-
m a Cognizable
cognizabl
ar
Cognizable
offence offence s
e offence
S h 155(4)

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Facts: wife went to women commission for complaining against husband, then women commission went to Police.
Then police filed chargesheet to SDJM u/s 494 & 498A IPC. JM allowed the application.
A
Then matter went to High court, it did not allow u/s 494IPC (non-cog.) & allowed 498AIPC (cog.). Stating that only
aggrieved party can approach u/s 494 and not the W.C., so high court made an error here.
Supreme court said High court made an error that anybody who has blood r/l can file complaint on behalf of
aggrieved party [S.198 Cr.pc(1) (c)] so here it becomes cognizable matter & both 494, 498A have to be investigated.
 Madhu Bala v. Suresh Kumar, (1997) 8 SCC 76

Facts: wife complaints against her husband in CJM court, Kurukshetra u/s 406 IPC(criminal breach of trust)& 498A IPC
(cruelty by husband).
 CJM directed to lodge FIR u/ 406 but send matter u/s 498A to CJM karnal, they also ordered to lodge FIR u/s 498A.
As per s 156(3) cr.pc.
Issue: can CJM direct to register FIR u/s 156(3).
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
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CJM can order only investigation after filing of FIR as per S.156(3).
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
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SC explained- it is an implied power of the court. Courts can give direction to register FIR & investigate the matter.
S
COMPLAINT s. 2(d) –

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S.190(1)(a)
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A S. 154- FIR
S. 156(1)- Investigation
S. 173(2)- Report
S. 190(1)(b)- cognizance of police report
 Sakiri Vasu v. Stae of Uttar Pradesh, (2008) 2 SCC 409

 FACTS: Army major’s dead body was found on railway track. GPR (railways) said its suicide or accident.
Army after inquiry proceedings came to conclusion that it is suicide. But his father said its murder so he went to
HC under A-226 COI writ petition for investigation by CBI in the matter. It was dismissed.
 Again, he went to SC under writ.

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SC explained-
 ar
 S h
If alternate remedies are available, they one should exhaust them first before coming to higher authorities.

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Can victim demand special agency for speedy investigation? NO


Mag. Can ask for FIR and investigation
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Mag. Can reopen the case & order re-investigation.
A
Alternate s. s. s. A 226(HC)/
remedies s. 200 s.482
154(1) 154(3) 156(3) A 32 (SC)
 Case:
 Lalita Kumari v. Govt. of Uttar Pradesh, 2013 (1) SCALE 559
 Lalita Kumari v. Govt. of Uttar Paradesh, Crl. M.P. no. 5029 of 2014 in writ petition (Crl.)
No. 8 of 2008


m a
State of Orissa v. Sharat Chandra Sahu, (1996) 6 SCC 435 19

ar
Madhu Bala v. Suresh Kumar, (1997) 8 SCCC76 21

S h
Sakiri Vasu v. Stae of Uttar Pradesh, (2008) 2 SCC 409

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Practical questions:

1. What is the remedy if investigation is done without the order of magistrate?

 Remedy lies u/s 482 i.e. quashing of FIR. Court will have to see weather there is a ‘failure
a
of justice’ or not [Case: Keshavlal v. State of Bihar (1996)].
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 Re-investigation order can be ordered under s.482.
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 Quashing of criminal proceedings u/s 482.
S
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Thank you!