INVESTIGATION BY THE POLICE
What is investigation
Etymologically the term ‘investigation’ connotes the careful examination of
something or the search for information to discover facts about a particular
situation or circumstance. It is the examination of relevant facts that establishes
whether something unlawful has happened, and, the person responsible for such
misconduct.
The prime objective behind conducting the investigation is to examine the
allegations and shreds of evidence regarding a certain act of misconduct. The
investigation further examines whether something beyond the knowledge about
the alleged happening of misconduct has happened. The Allahabad High Court
in State of U.P v. Sant Prakash (1976) held that investigation is mainly
conducted for the collection of evidence, and it must necessarily be conducted
by the police officer or any other person authorized by the Magistrate.
“Investigation” is defined under Section 2(h) of the Code of Criminal Procedure
(hereinafter referred to as CrPC), 1973. However, Section 2(h) does not provide
an exhaustive definition. It states that the word is to include all the proceedings
under the CrPC about the collection of evidence. The police officer or any other
person authorized by the Magistrate conducts these proceedings referred to in
Section 2(h). Provided, the Magistrate shall not himself conduct these
proceedings. In a circumstance where any authority is given the power to deal
with an offence (within the authority's jurisdiction), in the exercise of such
power, the authority is also empowered to investigate the offense, because the
term "dealing with an offence" is to include the power of investigation also.
The four elements of the investigation are; case diaries, spot visits, collection of
evidence, and, searches and seizures.
Arrest and detention of persons, examination of witnesses, medical examination
of the arrested persons, searches conducted for the collection of evidence, and
arrangements of raids, all form part of the investigation. It is important to note
that the process of the investigation comes exclusively under the police's
domain. The Magistrate does not have control over it but may ask for a case
diary at a later stage if deemed necessary. The investigation is the first stage of
a criminal case. While investigating if the police find out that no offence has
been committed, they report it to the Magistrate and the case proceedings
come to an end. However, if the police find something, then the second stage of
a criminal case begins, i.e., the inquiry, followed by the third stage, the trial.
When does the investigation start
The starting of an investigation clarifies the activities or further steps to be
taken to conclude the alleged happening of misconduct. Gathering of evidence,
analysis of the information available, and arrest and charging of a suspect are
all a part of the investigation process.
The process of investigation in a cognizable offence begins as soon as police
find a reason to suspect the alleged commission of an offence, either based on
an FIR or any other suspectable information received by police. The CrPC
contains provisions that direct the police to investigate and also lays down the
complete procedure for an investigation.
Information to a police officer
The investigation starts as soon as the police officer receives
information. Section 154 of CrPC talks about providing information to a police
officer in cases of cognizable offences. This Section provides that every piece of
information received by the officer in charge whether in writing or orally shall be
noted down by the police officer. The written information should also be
provided to the one who has been informed about the commission of the
offence. The information that has been provided shall then be attached to the
book of records. If any person feels aggrieved that the officer in charge is not
accepting such information then he can send it directly to the Superintendent of
Police. The investigation starts by making entries in the book of records as
prescribed by the government.
The objective of this Section is to inform the Magistrate who has jurisdiction over
that particular area and the District Superintendent of Police about the
commission of the offence as they are the ones responsible for the maintenance
of safety and peace. Another objective is to acquaint the judicial officers with
the facts and evidence available, in front of whom the case will be tried
ultimately. This Section also safeguards the accused against further variations
and additions, as sometimes done by the prosecution. As held in the case
of Ashok Kumar Todi v. Kishwar Jahan (2011), registration of the FIR should be
treated as a condition precedent to the start of the investigation.
The information regarding the commission of a cognizable offence given to the
police or officer in charge of the police station is called a First Information
Report (FIR). It is the information given to the police about the commission of
the cognizable offence. This is the base from which the investigation of a case
starts. This information received by the police officer when reduced in writing
becomes the First Information Report. Although FIR is nowhere defined in the
code, the same is recorded under Section 154 of CrPC. FIR stands for the
commencement of the investigation in cases of cognizable offence. The police in
charge are obligated to record the information provided to him if such
information relates to the commission of the cognizable offence. As held in the
case of State of U.P. v. Mukesh (2013) FIR is an intimation regarding the
happening of an event. It is to be noted that only the main information received
needs to be mentioned in the regular diary. Also, this information shall not be
considered the source of every fact.
Role of police in the investigation of a crime
The police play the most important role in the investigation of a criminal
case. Police have to investigate the cognizable case and find the truth as per
the provisions of Indian laws. As mentioned earlier police have the power to
investigate only cognizable cases, in non-cognizable cases prior permission
has to be taken from the Magistrate. Police perform myriad duties while
performing investigations in a criminal case, like, making arrests, dispersing
an unlawful assembly, taking preventive action, and many more. The
investigation by police in cognizable offences is a normal preliminary to the
trial.
The police have been empowered to investigate cognizable cases
under Section 156 of CrPC. The Section states that any officer who is in
charge of a police station can start investigating cases consisting of
cognizable offences without the permission of the Magistrate. The police
officer shall not be brought into question at any stage of ongoing trial on the
ground that he was not empowered to investigate under this Section.
The investigation once commenced will only end after the police file a report
as stated under Section 173 of CrPC. Under Section 156 the police have the
power to investigate a cognizable offence even without the order of a
Magistrate. Also, in a situation where the police do not start the investigation
by themselves then the Magistrate can order the initiation of investigation as
stated under Section 190 of CrPC. The police under this Section can also
initiate the investigation process in the absence of FIR, provided that the
offence must be cognizable.
It is to be noted that if the police are investigating the Magistrate cannot
interrupt or control the investigation process. The right provided to the police
is statutory and cannot be controlled by the Court, but is at the discretion of
the Court whether it takes action or not after filling out the charge sheet.
However, the Court's function does not begin until the charge sheet is filed.
The police also have the power to investigate cognizable offences beyond
their territorial jurisdiction as stated under Section 156(2) of CrPC.
Arrest without warrant
A Police officer is empowered under Sections 41, 42, and 151 of CrPC to
arrest a person without a warrant.
A police officer under Section 41(1) of CrPC can arrest a person without
obtaining prior permission from the Magistrate and without any arrest
warrant, under the below-mentioned circumstances:
if the person has committed any cognizable offence in the sight of a
police officer, or
if a complaint has been made against such a person, or if there is any
suspicion against that person that he might have committed a
cognizable offence wherein the term of imprisonment is less than seven
years or which may extend up to seven years, or
if such a person has any stolen property if the state has declared him
as a proclaimed offender, or if he has obstructed the police officials
while they were discharging their duty, or if the person tries to flee
from lawful custody, or if there is a reasonable suspicion against him of
being a deserter from any of the Indian Army forces.
The powers of arrest granted to the police under Section 41 of CrPC are subject
to certain exceptions as provided under this code and other such Acts on which
this code is applicable. For instance, a police officer is not empowered to arrest
a person in the commission of a non-cognizable offence without taking prior
permission from the Magistrate as stated under Section 155(2) of the code.
Thus, in such a case police cannot arrest under section 41(1)(d) of the code.
This section is a depository of all the powers provided to the police regarding
the arrest.
A police officer under Section 151 of CrPC can arrest without any arrest
warrant to prevent the commission of a cognizable offence. However, a
police officer under this Section cannot make an arrest merely on the
apprehension that there has been a breach of peace.
In the case of Arnesh Kumar v. State of Bihar (2014), it was held that in
cases where the offence is punishable with less than 7 years, be it with a fine
or without a fine, the police shall not unnecessarily arrest the accused. The
Court further stated that the Magistrate must not authorize and order arrest
or detention casually or mechanically. The same opinion was reiterated by
the Gujrat High Court in the case of Kamuben Somaji Bhavaji Thakore v.
State of Gujrat (2022).
Arrest by warrant
In cases of commission of a non-cognizable offence, police cannot arrest
without a warrant or without taking prior information from the Magistrate. A
warrant is issued by the Magistrate against a person who has committed any
non-cognizable offence to arrest him. Section 70 of the code states that
every such warrant issue shall be made in writing and shall remain in course
until it is expressly cancelled by the Court. Section 70 to 81 of the code deals
with the procedure for the arrest with a warrant. When a warrant in writing is
issued by the Magistrate, any police officer whose name is mentioned on the
warrant can make an arrest. The reasons for the arrest shall be informed to
the accused and he shall be presented before the Magistrate without an
unnecessary delay.
Guidelines for the conduct of police during the
investigation
Police investigation plays a crucial role in determining the fate of a criminal
trial. Although the report presented by the police is not the only source of
reliance by the Court, it plays an important role in the conviction of a
wrongdoer. Improper or inaccurate investigation done by police may lead to
the wrongful conviction of an innocent or acquittal of the accused.
Inaccuracy in the investigation will always benefit the accused as it is the
prosecution who has the burden of proof upon themselves. They are the
ones who have to prove the occurrence of the crime and that the accused
has done it. The defects in the investigation may result in grave injustice.
Hence, proper guidelines and conduct must be followed by the police while
they carry out the investigation.
The general conduct to be followed by police is that they must maintain
impartiality while conducting the investigation and should not follow unlawful
means during the investigation. The officers should try to not disturb public
order and peace during the investigation. Also, the police shall not make any
unnecessary delay in lodging an FIR or in reducing it in writing.
The procedure to be followed while doing an investigation is prescribed
under Section 157 of CrPC. The Section provides the manner and guidelines
in which the investigation is to be conducted by police. The Section further
directs the police not to investigate cases that are not serious (non-
cognizable cases), at least not before obtaining permission from the
Magistrate. The main aim of the enumeration of this provision is to
systematically regulate the procedure of investigation that is to be followed
by police.
The police are required to give the information that has been recorded by
them on a first-hand basis to the Magistrate having jurisdiction. The delay
made by the police officer in charge might point in the direction that the FIR
was not reduced to writing on time This will also give sufficient time to the
accused to make his case strong thereby introducing variations and
embellishments.
The failure to send an FIR by the police will affect the prosecution's case and
thus police need to make sure that this point is taken care of. However, if
there is a rationale behind the delay caused or the delay is not extraordinary
then it may up to some extent be taken into consideration. The same fact
was established in the case of State of UP v. Gokaram and Ors (1984),
wherein the Court held that it cannot be said that every time a delay is
caused in recording the FIR, it would necessarily point out that interference
may have been done in facts and circumstances. Neither can it be stated
that the investigation in such a case is not fair and forthright.
In cases where a delay has been found in sending the information to the
Magistrate, the police are required to explain sufficient grounds and the
reason behind the delay. If the Magistrate finds them convincing the delay
will not affect the authenticity of the FIR. The police are required to give a
reasonable and cogent reason behind the delay caused.
Ordinarily, the police are required to start the investigation after receiving
information from the informant however this is not a necessary condition
before the starting of the investigation. The police can initiate an
investigation into every source of information available to them. It is not a
mandatory condition that only the facts and circumstances that are recorded
under Section 154 of CrPC will be the basis of the investigation. The police
can commence the investigation even if they suspect the happening of an
offence based on information gained from some informal intelligence or any
other source.
Several judgments by the Apex Court and the High Courts have mentioned that
noncompliance with Sections 154 and 157 might direly affect the case of the
prosecution and hence they need to strictly comply with these provisions.
However, it does not mean that this will destroy the investigation done by them.
The interest of justice shall prevail and the case will be dealt with keeping in
mind that no miscarriage of justice is done.
As mentioned in Section 41A of the code, in situations wherein an arrest is not
required under Section 41(1) of the code, the police can issue a notice to such
person against whom a reasonable complaint has been made, or a reasonable
suspicion is found against that person or a credible information has been found
against that person for appearing before them in the place as prescribed under
the notice. The person against whom such notice is issued is bound to comply
with such notice. In cases where any such person does not comply with the
notice issued, the police can arrest taking directions from the competent Court.
In the case of Arnesh Kumar, it was held that notices under Section 41A must be
issued within two weeks before the institution of the case. SIGN IN
According to Section 41B of the code, every police officer while making an
arrest shall positively make a memorandum of arrest along with attesting it
with at least one witness. Provided such a person shall be a member
belonging to the family of the arrested person. The memorandum shall also
be countersigned by the arrested person. The police officer making such an
arrest shall have a clear and visible identification of his name.
A police officer as stated under Section 57 of the code, is obligated to
present the arrested person before the Magistrate without any unnecessary
delays. A person arrested without a warrant according to this section should
not be kept in custody for more than 24 hours. This guideline of 24 hours
cannot be extended by the police until and unless such an order is given by
the Magistrate. An order for extension of the custody is given by the
Magistrate in special circumstances under Section 167 of CrPC.
Section 167 contains the procedure to be followed where the investigation
has not been completed in the time of 24 hrs. According to this Section if the
police officer thinks that the accusation is very well informed and the
investigation has not been completed in 24 hrs in such a case the police shall
transfer the case diary to the Magistrate and forward the accused before the
Magistrate. In a situation where the case falls under Magistrate’s jurisdiction,
he can order further detention which shall not exceed 15 days.
A further extension can be given by the Magistrate having jurisdiction,
wherein he finds that there are reasonable grounds behind this extension.
The provisions for the extension of the detention period are given under
Section 167(2)(a) of CrPC. An extension not exceeding 90 days can be given
by the Magistrate in cases that relate to offences of heinous nature where
the punishment prescribed is more than 10 years of imprisonment or the
death penalty or life imprisonment. An extension of 60 days can be given by
the Magistrate about other offences. The accused shall be released on bail
after the completion of 60 days or 90 days as the case may be after he has
furnished the surety.
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