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Powers of Police in Investigation

Research Question:
  • Whether the Investigation process carried out by the Police Officers are in compliance with the sections under the Criminal Procedure Code, 1973?
  • Whether the Powers conferred upon the Police Officers for the investigation process are in compliance with providing justice and betterment of the society?
Introduction:
The chapter XII of the Criminal Procedure Code, 1973 includes in it the power of the police to investigate and all the necessary information regarding the same. These powers may either be cognizable and non- cognizable issues also issues pertaining to crimes such as suicide, murdered by animals or accidents etc. The powers of the police officer to investigate a cognizable offence as given u/s. 156 Criminal Procedure Code are wide and unfettered (in strict compliance of the provisions of Chapter XII of the Code).

Even the Courts are not justified in obliterating the track of investigation in such cases. In other words, they have no control over the investigation, or over the action of the police in holding such investigation. But in case a police officer transgresses the circumscribed limits and improperly and illegally exercises his powers in relation to the process of investigation, then the Court has the necessary powers to consider the nature and extent of the breach and pass appropriate orders. The interference by the courts in the investigation of offences is thus permissible only if non-interference would result in miscarriage of justice. Investigation is not mandatory as the police may investigate at their own discretion

The power conferred upon the police are to be given of utmost importance and thereby cannot be encroached upon by any means. As in the case of S.N.Basak, the court was of the opinion that the police has been provided with statutory right to carry forward to the process of investigation as stated under this chapter of the Criminal Procedure Code prior to the initiation of the prosecution and it was also stated by the court that this rights given to the police cannot be interfered even by the courts through section 401 High court's power of revision and not even by section 482 which is Saving of the inherent power of the High Court as stated under the Criminal Procedure Code [i].

It is provided under section 154 of the Criminal Procedure Code that all the information pertaining to any form of cognizable offence should be written down by the police officer in charge or under his discretion. The information that has been written down as called the First Information [ii].

There has not been made any mention of the First Information Report under the Criminal Procedure Code, however, the words used indicates information is to be regarded as the First Information Reports, the same was stated by the court in the case of Manimohan Ghosh [iii] As per section 2(h) of the Criminal Procedure Code the investigation in inclusive of all the proceedings under the code of collection of evidence carried out by the Police Officer or any other person which is authorized by a Magistrate.[iv] In order for the investigation to take place the crime has to take place. The crime committed can either be a cognizable crime or Bailable or Non- cognizable offence or Non-bailable in its nature.

In cases of investigation of Cognizable offences the section 156 of the Criminal Procedure Code has conferred power upon the police officers to carry forward the investigation process without the order or permission of the magistrate. It is therefore ordered that the police must conduct investigation only where the particular court has jurisdiction within the local areas.
In cases of Non- Cognizable offences Section 155 of the Code deals with the information in case of non-cognizable offences and their investigation.

All the information received under this section will be recorded by the police officer in charge and will be entered in such books as may be prescribed by the State Government. According to section 155 (2), a police officer is not permitted to investigate a case relating to the non-cognizable offence without the order of the Magistrate who has the power to try such cases.

A police officer acquires the power to investigate as soon as he receives the order and can exercise the investigating power same as he exercises in any cognizable matter. However, no police officer has the power to arrest any person in the non-cognizable offence unless he has the warrant to arrest. Further, as per section 155 (4) of the Criminal Procedure Code if any case involves 2 or more offences and among all, if one is the cognizable offence, the entire case shall be deemed to be a cognizable case. No defence would lie on such cases mere on the basis that other are non-cognizable offence and the police officer will have the power to investigate the manner as prescribed for the cognizable offence[v]

Procedure for Investigation:

The Section 157 of the Code establishes the procedure to be followed for investigation. The section requires that immediate intimation of every complaint or information referred to an officer in charge of a police station of the commission of a cognizable offence shall be sent to the Magistrate having jurisdiction. A police officer as soon as he receives information or has reasons to suspect the commission of any cognizable offence is required to report the Magistrate who has the jurisdiction to try such cases.

The Magistrate is empowered to take the cognizance of such offence and order to any subordinate officer to investigate the spot, facts and circumstances of the case and take necessary measures for the discovery and the arrest of the accused. The report is sent to the Magistrate as to keep him abreast of the investigation so he may give appropriate directions. Section 157 requires a police officer to forthwith a report which signifies that the report has to be sent without any unreasonable delay. Delay does not render the case doubtful but would put the Court on guard.[vi]

This section commences the investigation procedure. The process of investigation is inclusive of all the proceedings that have been stated under the Criminal Procedure Code for gathering the evidences that is carried out by the police officer [vii] As in the case of Kari Chaudhary v. Sita Devi the court of the opinion that the purpose of investigation is to figure out if the alleged crime has actually been carried out or not and if the crime has been committed then who has committed the offence.

In cases where there does not exists any offense of grievous nature then in such situations the police need not carry forward with the investigation process immediately. In a situation where the police officer does not find it necessary to carry forward the investigation process they may not do so. The reason as to why the investigation process is not being carried forward by the police has to be mentioned specifically in the report that is prepared by the police officer.[viii]

A useful perspective on the criminal investigation process is provided by information theory (Willmer). According to information theory, the criminal investigation process resembles a battle between the police and the perpetrator over crime-related information. In committing the crime, the offender emits "signals," or leaves behind information of various sorts (fingerprints, eyewitness descriptions, murder weapon, etc.), which the police attempt to collect through investigative activities.

If the perpetrator is able to minimize the amount of information available for the police to collect, or if the police are unable to recognize the information left behind, then the perpetrator will not be apprehended and therefore, the perpetrator will win the battle. If the police are able to collect a significant number of signals from the perpetrator, then the perpetrator will be identified and apprehended, and the police win. This perspective clearly underscores the importance of information in a criminal investigation.

The major problem for the police in conducting a criminal investigation is that not only is there potentially massive amounts of information available, but the relevance of the information is often unknown, the information is often incomplete, and the information is often inaccurate. Further, to be useful in proving guilt in court (where beyond a reasonable doubt is the standard), the evidence must have certain other qualities, and certain rules and procedures must be followed in collecting the evidence

Who may Investigate?

The process of investigation of any cognizable offence is for restricted to the police authorities as mentioned under the Criminal Procedure Code. Their powers are restricted so long as such persons exercise them legally and lawfully and in strict compliance with the provisions of law[ix]. It is neither open to the court to interfere with the investigation[x] nor an accused has a right to be heard in respect of material collected by the investigating officer.[xi] It is open to the investigating agency to submit a report stating therein whether or not an offence has been committed.

It is only thereafter that the magistrate has power to take an appropriate action. If the investigating officer finds no material to support the allegation in the First Information Report, it is open to the magistrate either to accept the report or to order further inquiry. It is also open to the court, in appropriate case to take prompt action. It is, however, not open to the court to direct investigating agency to submit a report in accord with this view.[xii]

Commencement of Investigation:

The investigation process commences if the officer in charge has a reason to suspect commission of cognizable offence. There are two conditions that need to be fulfilled for the commencement of an investigation process. The officer in charge of a police station must have reason to suspect commission of a cognizable offence and there must be a sufficient ground for entering on an investigation. [xiii]

Investigation in Cognizable Cases:

Section 156(1) empowers an officer in charge of a police station to investigate a cognizable case without an order of a magistrate. It also limits his power to investigation of such cases within the local jurisdiction. The violation of this provision is cured by sub-section (2) of section 156. Any defect or illegality in investigation which has no direct bearing on the competence or the procedure relating to cognizance or trial would not vitiate the trial and conviction cannot be set aside unless such illegality or defect in the investigation has brought about miscarriage of justice.[xiv] Sub-section (3) of section 156 empowers a magistrate to order investigation by the police before taking cognizance of an offence.

After the magistrate receives the report, he can act on it and discharge the accused or straightway issue process against the accused or apply his mind to the complaint filed before him and take action under section 190 of the Criminal Procedure Code. Section 157 (1) provides the manner in which the investigation is to be conducted. If from the information received or otherwise, an officer in charge of police station has report of the same to a magistrate empowered to take cognizance upon a police report, and must proceed in person or depute one of his subordinates to investigate the facts and circumstances of the case and to take steps for the discovery and arrest of the offender.

The first proviso however enables the officer to dispense with the investigation on the spot if information is against a named person and the case is not of a serious nature or there is no sufficient ground for such an investigation. [xv] The second proviso as added by the Amended Act,2008 requires investigation in a rape case to be conducted at the residence of the victim by a woman police officer.

It also provides for questioning the victim less than eighteen years in presence of her parents or social worker of the locality. Section 157 requires an officer in charge of a police station to send the report of a cognizable offence to a magistrate. It is called an occurrence report. The underlying object of this report is to enable a magistrate to have early information of every serious crime so that he may be in a position to issue necessary directions under section 159.[xvi]

Investigation in Non- Cognizable Offences:

Section 155 deals with information relating to a non-cognizable offence. No police officer can investigate a non-cognizable offence without the order of a competent magistrate. But once the police officer is permits to investigate a non-cognizable case, he can exercise the same powers as in respect of a cognizable case, except that he cannot arrest any person without warrant. Where a case relates to two or more offences of which one is cognizable, the case will be deemed to be a cognizable case. [xvii]

As per section 156 (3) of the Criminal Procedure Code, 1973 any magistrate empowered under section 190 of the Criminal Procedure Code can order a police officer in charge of a police station to investigate any cognizable offence. Section 190 empowers a magistrate take cognizance upon receiving any complaint or upon police report or upon information received from any person other than the police officer who is having knowledge that such an offence is committed.

In the case of Tula Ram v. Kishore Singh, it was observed by the court that a magistrate can order investigation under section 156(3) of the Criminal Procedure Code only at the pre-cognizance stage.

Powers of Police Officers:

Attendance of witness:

Section 160 of the Criminal Procedure Code empowers the police officer to require the attendance of witnesses who are within the jurisdiction of such police station. However, where the male person is below the age of 15 years or above the age of 65 years or woman or physically or mentally infirm person, the attendance of such person will be required at his place where he resides.

A police officer making an investigation may require the attendance of any person residing within the limits of his own or adjoining station including the accused acquainted with the facts and circumstances of the case. However, no male person below fifteen years or female shall be required to attend at any place other than the place of residence in which such person resides. A police officer can question such person orally and he is bound to answer truly all questions put to him relating to the case unless the answers to the questions have a tendency to expose him to a criminal charge or to a penalty or forfeiture. Such statements can also be reduced into writing by audio-video electronic means by the police officer. The police officer will furnish copies of the statements to the accused.[xviii]

Examination of witness

As per section 161 of the Code the police officer who has the power to investigate will examine the witness and reduce their statements in writing. This section also empowers to record the stamen in audio-visual electronic means. Moreover, a woman police officer is required to record the statement of the woman against whom an offence is committed.

Any police officer making an investigation under this Chapter, or any police officer not below such rank as the State Government may, by general or special order, prescribe in this behalf, acting on the requisition of such officer, may examine orally any person supposed to be acquainted with the facts and circumstances of the case.Such person shall be bound to answer truly all questions relating to such case put to him by such officer, other than questions the answers to which would have a tendency to expose him to a criminal charge or to a penalty or forfeiture.The police officer may reduce into writing any statement made to him in the course of an examination under this section; and if he does so, he shall make a separate and true record of the statement of each such person whose statement he records.[xix]

Preparation of charge sheet

A police officer is empowered to submit a charge sheet post investigation. It includes a copy of FIR, statement of the complainant, witnesses, panchnama, dying declaration etc.

As soon as an investigation is completed the officer in-charge of a police station shall forward a report to a magistrate empowered to take cognizance of the offence on a police report in the form of the prescribed manner by the State Government stating the names of the parties, nature of the information, the names of the person appeared to be acquainted with the circumstances of the case, whether any offence appears to have be committed and if so, by whom, whether the accused has been arrested, whether he has been released on his bond or sureties, whether he has been forwarded in custody under section 170 of the criminal procedure code. He shall communicate to the informant the action taken by him.

Search by Police officer: Section 165

Whenever an officer in charge of police station or a police officer making an investigation has reasonable grounds for believing that anything necessary for the purposes of an investigation into any offence which he is authorised to investigate may be found in any place within the limits of the police station of which he is in charge, or to which he is attached, and that such thing cannot in his opinion be otherwise obtained without undue delay, such officer may, after recording in writing the grounds of his belief and specifying in such writing, so far as possible, the thing for which search is to be made, search, or cause search to be made, for such thing in any place within the limits of such station.

A police officer proceeding under Sub-Section (1), shall, if practicable, conduct the search in person.

If he is unable to conduct the search in person, and there is no other person competent to make the search present at the time, he may, after recording in writing his reasons for so doing, require any officer subordinate to him to make the search, and he shall deliver to such subordinate officer an order in writing, specifying the place to be searched, and so far as possible, the thing for which search is to be made; and such subordinate officer may thereupon search for such thing in such place

The provisions of this Code as to search-warrants and the general provisions as to searches contained in section 100 shall, so far as may be, apply to a search made under this section.
Copies of any record made under Sub-Section (1) or Sub-Section (3) shall forthwith be sent to the nearest Magistrate empowered to take cognizance to the offence, and the owner or occupier of the place searched shall, on application, be furnished, free of cost, with a copy of the same by the Magistrate.

Right of Police to Interrogate:

It is a legitimate right of the police officer to interrogate any person on some credible information. It is also true that such persons seldom willingly furnish quick and correct clue to the crimes. A certain amount of coaxing and promising may, therefore, be necessary. That does not, however, mean that the police is at liberty to use third degree method, beat a person or resort to any physical torture. Interrogation should be purposeful to make the investigation effective. Use of force is barbaric and contrary to law. Police officers are custodian of law, if the themselves commit crime than no one would be safe in the society[xx]

Conclusion:
Through this research paper we can draw the conclusion that the powers of the police during the course of investigation must be given pf utmost importance. Such powers of the police has been listed out systematically in the Criminal Procedure Code, 1973. The procedure of investigation as well as the method in which the investigation must be followed by the police while handling any given case has been provide under the code.

The research study has also made it clear that even though the police may have certain discretionary powers while carrying out any investigation there also exists certain areas wherein the police in the name of investigation cannot arbitrarily misuse the power conferred upon them.

The study has highlighted the procedure of investigation in cognizable as well as non-cognizable cases and the role of the police in conducting such investigation. Through the research study it is to be observed that even though there are properly laid down rules and procedures regarding the investigation procedure many at times the investigation is not carried in the proper manner. The police are often seen to be misusing their power and thereby do not work in compliance with the trust with which the powers have been given to them.

References:
  1. Takwani Criminal Procedure, 4th Edition
  2. R.V Kelkar's Crimina Procedure Code, 6th Edition, 2014
  3. Ratanlal & Dhirajlal, The Code of Criminal Procedure Code, 21st Edition
  4. http://lawtimesjournal.in/information-to-the-police-and-their-power-to-investigate/
  5. https://www.lawnn.com/role-police-power-investigate

Endnotes:

  1. S.N. Basak, AIR 1963 SC 447
  2. Section 154 Criminal Procedure Code, 1973
  3. (1931) 58 CAL 1312
  4. Section 2(h) Criminal Procedure Code, 1973
  5. Section 155 (4) Criminal Procedure Code, 1973
  6. Section 157 Criminal Procedure Code, 1973
  7. Manimohan Ghosh, (1931)58 Cal 1312.
  8. (2002) 1 SCC 714: AIR 2002 SC 441
  9. Rishbud v State of Delhi, AIR 1995 SC 196
  10. King Emperor v. Khwaza Nazir Ahmed, AIR 1945 PC 18
  11. Adri v. State of West Bengal, AIR 2005 SC 1057
  12. Abraham v. State of Maharashtra, (2003) 2 SCC 649
  13. State of U.P v. Bhagwant, AIR 1964 SC 321
  14. Din Dayal v. State of U.P AIR 1959 SC 831
  15. State of Punjab v. Bhajanlal AIR 1992 SC 604
  16. Pala Singh v. State of Punjab, AIR 1972 SC 2679
  17. Pravin Chandra v. State of A.P 1991 SC 260
  18. Gurubavhan v. State of Pepsu AIR 1957 SC 623
  19. Section 160 of the Criminal Procedure Code, 1973
  20. Aher Raja Khima v. State of Saurashtra, AIR 1956 SC 217

Acknowledgment

I would like to thank God, my family and my professors for giving me this opportunity to do this research paper.. I now have a much better understanding of the matter due to all the research and comprehension I have had to do for this project.
I also thank, Symbiosis University, my alma mater, for providing me with the basic amenities for this research.

Award Winning Article Is Written By: Lamya Hussaini - Symbiosis Law School, Hyderabad

Awarded certificate of Excellence
Authentication No: SP31073925682-10-920

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