The Code of Criminal Procedure, 1973 is an exhaustive code dealing with the procedure to be followed in the administration of the substantive criminal law. The Code was developed taking into consideration the tenets of fair and speedy trial and to ensure that the justice is delivered to all the persons irrespective of their social or economic conditions. In order to ensure that the rights of the accused person are also given due recognition, the Code has enacted various provisions as to the procedure to be followed by the investigating agency as well as the courts in the investigation, inquiry and trial of those who appears before it. The relevant provisions dealing with the procedure in relation to investigation is as follows:
Procedure In Relation To Investigation
Section 2(h) of the Code of Criminal Procedure, 1973 defines the term ‘investigation’ as all the proceedings which are done under the Code for the collection of the evidence. In order to become an investigation, the proceedings for the collection of the evidence must be done by a police officer or by any person authorised by the Magistrate. However, the Magistrate himself cannot conduct the investigation.
The procedure as to investigation is provided for under Chapter XII of the Code which is titled as ‘Information to the police and their power to investigate’ and consists of Section 154 to Section 176. The relevant provisions are as follows:
- INFORMATION TO THE POLICE OFFICER
In case any cognizable offence has been committed by any person, the information regarding the commission of the offence if given to the officer in charge of the police station, it shall be his duty to reduce the information in writing[1]. After recording the same, the content of the FIR must be read to the informant and his/her signature must be obtained by the police authority[2]. However, where the information relates to an offence under the provisions of Section 326A, 326B, 354A, 354B, 354C, 354D, 376, 376A, 376B, 376C, 376D, 376E and 509 of the IPC, then a woman police officer must record the information[3].
- POWER OF POLICE TO INVESTIGATE THE OFFENCE (SECTION 156)
In case of a cognizable offence, the police officer shall have the power to investigate the case which lies in his territorial jurisdiction. No order of the Magistrate is required to investigate the offence since it is cognizable in nature. The Magistrate may also give the order to investigate the offence under Section 156(3) of the Code and the police officer shall act accordingly.
- PROCEDURE OF INVESTIGATION
The procedure for the investigation of the offences to be followed by the police for the collection of evidence is detailed in Section 157 of the Code of Criminal Procedure, 1973. In case the police officer has reason to suspect on the basis of the first information report or other information that a cognizable offence has been committed, he may begin the investigation of the offence. For the purpose of investigation, the police officer may either proceed himself or send his subordinate officer to the spot where the crime has been committed. Also, if it is considered necessary, he may take measures so as to effect the discovery and the arrest of the accused person.
However, the police officer may neither himself proceed to the spot of investigation nor depute any subordinate officer for the same if he feels that the information received is not of a serious nature. He shall also state the reasons for not complying with the requirements of this section in the report and shall send the report to the Magistrate. The informant shall also be notified by the police officer about the fact that the case shall not be investigated by him.
- SENDING THE REPORT TO THE MAGISTRATE
The Magistrate having the jurisdiction shall be sent the report of the investigation known as the police report by the senior police officer so as to make the Magistrate aware about the particular case that is being investigated by the police. The objective behind sending a report to the Magistrate is to enable him to give appropriate directions under Section 159 of the Code of Criminal Procedure, 1973. However, care must be taken that the report is sent to the Magistrate without any delay.
Various reports are to be sent by the police officer to the Magistrate at the various stage of the investigation of the offences. Section 157 requires a preliminary report to be submitted to the Magistrate by the police. Section 158 requires to police report to be sent and Section 173 requires a final report to be sent to the Magistrate upon the conclusion of the investigation.
- ORDER OF INVESTIGATION BY THE MAGISTRATE
Section 159 of the Code of Criminal Procedure provides power to the Magistrate to direct the investigation or to conduct himself or through a subordinate Magistrate, a preliminary enquiry if after the receiving the police report, he thinks that it is necessary to do so.
- ATTENDANCE OF WITNESS
Section 160 of the Code empowers the police officer who is making the investigation to require the attendance of any person as a witness if that person is acquainted with the facts and circumstances of the case. Proviso to Section 160 provides that the following persons shall not be required to attend at any such place except where such person resides:
- A male person below the age of 15 years
- A male person above the age of 65 years
- A woman
- A mentally or physically disabled person.
It also provides that rules shall be made by the State Government for the payment of ‘reasonable’ expenses which these persons incur for attending such place.
- EXAMINATION OF WITNESSES
Section 161 of the Code provides power to the police officers to examine the witnesses. Any person who is acquainted with the facts and circumstances of the case can be investigated by the police officer who is incharge of the investigation or by any person who is acting on behalf such police officer. The number of statement given by such witness shall be reduced by the police officer after the examination.
- STATEMENT TO THE POLICE NOT TO BE SIGNED
The witnesses need not to sign the statements which are made by them during the course of examination by the police. The statement which is made by the witness can only be used in the court to contradict him and not to corroborate the evidence which is given by him. However, any statement which falls within the provision of Section 27 or Section 32(1) of the Indian Evidence Act can be used as an exception to the above rule.
- RECORDING OF CONFESSIONS AND STATEMENTS
Section 164 provides power to the Magistrates to record any statement or confession made to him during the course of investigation by the accused person. However, this power is not available with the police officers on whom powers of a magistrate have been conferred for the time being in force.
Before recording the statement, the Magistrate shall explain to the person who is giving the statement that he is not bound to give the statement and the statement which is given by him can be used as an evidence against him in the court. It must be ensured by the Magistrate that the statement is recorded by the person voluntarily.
- RECORDING OF CONFESSION BY A MAGISTRATE HAVING NO JURISDICTION
The statement and confession recorded by the Magistrate not having the jurisdiction to record the same shall be forwarded to the competent Magistrate having jurisdiction to try the case.
- ADMISSIBILITY OF EVIDENCE
The confession recorded under Section 164 of the Code can be used as a substantive evidence even if the same has not been formally proved. The record of such confession shall be admissible as an evidence if the entire confession is brought on record. However, non confessional statements which are recorded under Section 164 of the Code shall not be admissible as a substantive evidence.
- SEARCH BY POLICE OFFICER
Section 165 of the Code provides the power to the police officer to search for any place at which he has reasonable ground to believe that something necessary with respect to the investigation of offence is present.
- PROCEDURE OF SEARCH
The police officer making the search at any place where he has reasonable ground to believe that something necessary to the investigation is present, he has to record in writing the reasons for the search, the place to be searched and the thing that has to be searched at that place. The police officer may also direct his subordinate officer to conduct the search if he is himself unable to do so.
- WHEN INVESTIGATION IS TO BE DONE OUTSIDE INDIA
When the investigating officer or any of his superior officer has reasons to believe that necessary evidence may be available in a place or country outside India, any criminal court shall issue a letter of request to the authority of that country or place requesting to examine orally the person who is supposed to be aware of the facts and circumstances of the case and direct him to produce all the requisite documents in his possession relating to the case being investigated and also require to forward all the documents and evidence to the court issuing such letter. The provision is given under section 166A.
- PROCEDURE WHEN INVESTIGATION CANNOT BE COMPLETED WITHIN 24 HOURS
The right of personal liberty as guaranteed by the Constitution of India has found due regard under Section 167 of the Code of Criminal Procedure, 1973 which provides the right of default bail to an accused person. Section 167 of the Code provides that if the Magistrate is satisfied that it is essential for the purpose of investigation, he may authorise the detention of the accused person beyond the period of 15 days. However, such detention shall be in the custody other than the police custody . The total period of detention, however, must not exceed (a) 90 days where investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than 10 years and (b) 60 days, where the investigation concerns any other offence committed by the accused person .
The extension of the period of detention as authorised by Section 167 of the Code of Criminal Procedure, 1973 can be authorised only if the Magistrate is satisfied that it is essential for the purpose of conducting the investigation. For this, the police must satisfy the Magistrate by producing case diary and the day to day report of the investigation. It must be established before the Magistrate that prima facie material exists against the accused which requires further investigation .
In case it is not possible for the investigating agencies to complete the investigation within the prescribed period of 60 days or 90 days as aforesaid, then a right accrues in favour of the accused person. The right is known as the right to default bail by which the accused becomes entitled to be released on bail on the expiry of the above period from the date of arrest. The gravity of the crime committed by the accused has no relation with his right under the CrPC. However, this right to default bail gets expired if the charge sheet is filed by the investigating authorities before the accused exercise the right.
- PROCEDURE TO BE FOLLOWED ON COMPLETION OF INVESTIGATION
On the completion of the investigation, the following procedure is to be followed by the Courts:
Release of accused when evidence is deficient
In the absence of sufficient evidence and reasonable grounds which may justify the forwarding of the accused to the Magistrate, the police officer shall release him on executing a bond with or without sureties and may direct him to appear before the Magistrate when required.
Cases to be sent to the Magistrate when there is sufficient evidence
When the police officer has reasonable grounds and sufficient evidence against the accused person, he shall forward the accused person to the Magistrate so that the Magistrate can take the cognizance of the offence and try the accused person.
Report of the Police on completion of the Investigation
Section 173 obligates the police officer to send a final report to the Magistrate on the completion of the investigation. This report is known as the ‘chargesheet’ or the ‘challan’.
Conclusion
The Code of Criminal Procedure, 1973 lays down a proper procedure to be followed by the police officers in the investigation of the offences alleged to be committed by the accused. Non adherence to these provisions vitiate the investigation undertaken by the police.
(Author: Manik Mahajan, pursuing LLB from Department of Laws, Panjab University, Chandigarh.)
[1] Tapinder vs. State of Punjab., AIR 1970 SC 1566.
[2] Patai vs. State of U.P., AIR 2010 SC 2254.
