This article is written by Divya Raisharma, a law student at Government Law College, Mumbai. This is an exhaustive article on crime investigation that covers every minute aspect of it, such as filling of a report or complaint to police, police reports to Magistrate, evidence, arrest, closure reports, inquest reports, chargesheet, complaint to Magistrate, investigating officer’s diary, order by Magistrate.

It has been published by Rachit Garg.

Introduction 

The world works on a quid pro quo, which means ‘give-and-take’. When someone lives in society, they enjoy the benefits society can give them, such as the feeling of oneness, safety, opportunities, or maybe the existence of a well-wisher. But, as common sense and harsh reality dictate, a person has to then become bound to follow the rules society sets. It is impossible to reside as a member of society while breaching these rules. Such breachers are branded as “deviants,” meaning someone who deviates from the norm.

A criminal is seen as a “deviant”. A criminal is somebody who does not belong in society as they do not follow the set rules of society, that is, the law. They are a threat to the foundation and peace of society, and hence, they face harsher backlash. But, a person legally is not branded as a criminal based on hearsay. For someone to be branded as a convict, the whole criminal justice system comes into the scene. Based on the information available and collected, the system makes an inquiry into the matter and decides the foreseeable truth. For this system to work fairly, due process of law must be followed during the inquiry and the collection of information. This collection of information is the basic and main purpose of a criminal investigation. 

As per the Code of Criminal Procedure of 1973, an investigation is initiated when a police officer or a person authorised by a Magistrate takes steps for the collection of evidence. Herein, the purpose of the criminal investigation is not to prosecute the accused but only to collect reliable information regarding the case. Information collected during the criminal investigation is the foundation of any action taken under the criminal justice system.

Steps in crime investigation

Criminal investigation is a long and continuous process. It has a lot of elements under it that are supervised by the Code of Criminal Procedure. The Code of Criminal Procedure is the source from which every action in a criminal case has been given legal standing and validity.

Report

An investigation of a crime starts from the moment it is reported to the police authorities. Hence, it is important to understand how the point of contact between the police and the person who has information about the offence is conducted. This point of contact is equivalent to filling out a report. 

The procedure for the report is based on what offence is to be reported, that is, whether it is a cognizable offence or a non-cognizable offence. If the case relates to two or more offences and one is cognizable, then the case would be deemed to be a cognizable offence and investigated in that manner.

There is also an additional section requiring every officer employed for a function connected with the administration of a village to report information regarding specific offences. 

Cognizable offence

As per Section 2(c) of the Code of Criminal Procedure, a cognizable offence is an offence where the police can arrest a person without getting an arrest warrant. Here, the police officer can investigate the case without needing any order from the Magistrate. Cognizable offences are generally serious in nature, such as waging war against the government, extortion, attempt to murder, etc.

The procedure of recording information regarding committing a cognizable offence is given in Section 154 of the Code of Criminal Procedure. When a cognizable offence is committed, a first information report (FIR) is filed containing the information about it. It can be further categorised into (a) the general procedure for recording information and (b) the procedure of recording information in special circumstances.

A very well-accepted principle, which was affirmed by the Patna High Court in the case Pramod Malakar v. State of Bihar (2006), is that any person possessing knowledge of the commission of a cognizable offence by any individual, known or unknown, can set the machinery of criminal law into motion by filing a first information report. Personal knowledge of the incident, names of the accused, etc., are not needed to fill out a first information report. All the information needs to do is disclose the commission of a cognizable offence.

General procedure for recording of information

When a cognizable offence is committed, all related information on its commission is to be reduced in writing. This procedure can be done by: 

• the informant, 
• the officer in charge of a police station, or 
• the person under the direction of the officer in charge. 

Section 154 of the Code does not state that information can only be made to an officer-in-charge. Hence, as seen in R.P. Kapur v. Sardar Pratap Singh Kairon (1963), an enquiry into a complaint given to the Chief Minister, who in turn sent it to the Additional Inspector General of Police, is legal and valid.

In case the information is given orally by the informant, for example, by a phone call, it is necessary to read the written down stated information aloud to the informant. The informant then must sign the written information. This written information is registered as the first information report. The same information must be entered into a General Diary / Station Diary / Station House Register / Daily Diary. 

In the interest of justice, the Code expressly says that the registered first information report’s copy is to be provided to the informant free of cost.

Here is a sample format of the first information report.

The procedure of recording information in special circumstances

There are some additional and special procedures to be followed in the following cases: 

1. the informant is a woman, 
2. the crime has been committed against a person with a temporary or permanent mental or physical disability, or 
3. the police officer in charge refuses to record information.

The procedure of recording when a woman gives information on specified offences

If a woman gives information about the commission or attempt of the below-mentioned offences against herself: 

• Voluntarily causing grievous hurt by use of acid (Section 326A of the Indian Penal Code),
• Voluntarily throwing or attempting to throw acid, etc. (Section 326B of the Indian Penal Code),
• Outraging the modesty of a woman (Section 354 of the Indian Penal Code), 
• Sexual harassment (Section 354A of the Indian Penal Code), 
• Assault or criminal force on a woman with intent to disrobe (Section 345B of the Indian Penal Code), 
• Voyeurism (Section 354C of the Indian Penal Code), 
• Stalking (Section 354D of the Indian Penal Code), 
• Rape (Section 376 of the Indian Penal Code), 
• Rape causing death or resulting in a persistent vegetative state of the victim (Section 376A of the Indian Penal Code), 
• Sexual intercourse forced by the husband upon his wife during separation (Section 376B of the Indian Penal Code), 
• Rape done by a person in authority (Section 376C of the Indian Penal Code), 
• Gang rape (Section 376D of the Indian Penal Code), 
• The repeated offender of rape (Section 376E of the Indian Penal Code), or 
• Words, gestures, or acts done with the intention to insult the modesty of a woman (Section 509 of the Indian Penal Code)

Then the information has to be video recorded by a woman police officer or any woman officer.

Except in the cases of Section 326A and Section 326B of the Indian Penal Code, the police officer shall give the information recorded herein to the Judicial Magistrate under Section 164 of the Code of Criminal Procedure as soon as possible.

The procedure of recording when the specified offences are committed on a person with a temporary or permanent mental or physical disability

If the following offences:

• Outraging the modesty of a woman (Section 354 of the Indian Penal Code), 
• Sexual harassment (Section 354A of the Indian Penal Code), 
• Assault or criminal force on a woman with intent to disrobe (Section 345B of the Indian Penal Code),
• Voyeurism (Section 354C of the Indian Penal Code), 
• Stalking (Section 354D of the Indian Penal Code), 
• Rape (Section 376 of the Indian Penal Code), 
• Rape causing death or resulting in a persistent vegetative state of the victim (Section 376A of the Indian Penal Code), 
• Sexual intercourse forced by the husband upon his wife during separation (Section 376B of the Indian Penal Code), 
• Rape done by a person in authority (Section 376C of the Indian Penal Code), 
• Gang rape (Section 376D of the Indian Penal Code), 
• A repeat offender of rape (Section 376E of the Indian Penal Code), or 
• Words, gestures, or acts done with the intention to insult the modesty of a woman (Section 509 of the Indian Penal Code)

Are attempted or committed on a person with a temporary or permanent mental or physical disability; then the information is to be video recorded:

• by a police officer,
• at the person’s house or a convenient place of their choice, and
• in front of an interpreter or a special educator if needed.

The police officer has to get the information recorded with the Judicial Magistrate under Section 164 of the Code of Criminal Procedure as soon as possible. 

Procedure when the officer-in-charge refuses to record the information

Suppose the police officer-in-charge of the relevant police station refuses to record the information provided by a person. In that case, such a person can send the information in writing through the post to the Superintendent of the police. 

The Superintendent of the police has to mandatorily conduct an investigation on receiving the above-mentioned information if it discloses the commission of a cognizable offence. The Superintendent can also direct a subordinate police officer to conduct the investigation, who shall have all the powers an officer in charge has concerning that offence.

Non-cognizable offence

As per Section 2(l) of the Code of Criminal Procedure, a non-cognizable offence is one where the police cannot arrest a person without a warrant. Practically, in case of a non-cognizable offence, The police cannot investigate the offence without an order from the Magistrate directing the police to hold an investigation. Non-cognizable offences are mostly minor cases, for example, bribery, cheating, mischief, forgery, etc.

Just as a first information report is filed in case of a cognizable offence, a non-cognizable report (NCR) is filed in case of a non-cognizable offence. The Mumbai police website provides the option to file an NCR online here. 

The procedure of recording information in case of a non-cognizable offence

The procedure for recording a report of a non-cognizable offence is in Section 155 of the Code of Criminal Procedure. When a non-cognizable offence is attempted or committed, the information regarding it is to be given to the office in charge of the police station within the limits of where the offence was attempted or committed. 

The officer has to enter the information in a book which is to be kept as per the prescribed form by the state government. The officer then has to refer this information and the informant to the Magistrate.

Unlike the case of cognizable offences where a police officer can hold an investigation without needing any permission from the Magistrate, here, a police officer can not conduct an investigation of the offence unless the Magistrate passes a written order directing an investigation into the case. The Magistrate who is passing the order for investigation must be the one who has the power and jurisdiction to try the case. Which court is empowered to try a particular case can be found by referring to the First Schedule of the Code of Criminal Procedure. 

On filling out the first information report, the police officer gets all the power an officer in charge receives in the case of a cognizable offence. The only exception here is that the police officer investigating a non-cognizable offence cannot make an arrest and investigate without a warrant. 

Certain reports by officers employed in connection with the affairs of a village 

In accordance with Section 40 of the Code of Criminal Procedure, every officer employed for a function connected with the administration of a village (for example, a member of a gram panchayat) and a person residing in that village shall give to the nearest Magistrate or to the officer in charge of the nearest police station, whoever is nearer, any possessed information regarding –

• Residency of  a notorious receiver or vendor of stolen property in or near a village;
• The place of residence taken by a thug, robber, escaped convict or proclaimed offender or a person reasonably suspected to be a thug, robber, escaped convict or proclaimed offender;
• Reasonable suspicion of occurrence of:
  • any sudden or unnatural death within the village,
  • any death under suspicious circumstances within the village, or 
  • the discovery of any corpse or part of a corpse in or near such village;
• The disappearance of a person from the village of any person along with a reasonable suspicion that a non-bailable offence has been committed against such person; 
• Any matter which is likely to affect: 
  • the maintenance of order 
  • the prevention of crime, or 
  • the safety of the person or property 

respecting which the District Magistrate has directed the officers to communicate information.

• The commission of, or intention to commit, in or near such village any non-bailable offence or the offence of:
  • Joining an unlawful assembly (Section 142 of the Indian Penal Code),
  • Joining an unlawful assembly armed with a deadly weapon (Section 144 of the Indian Penal Code), 
  • Joining or continuing in an unlawful assembly, knowing it has been commanded to disperse (Section 145 of the Indian Penal Code), 
  • Rioting (Section 146 of the Indian Penal Code), or 
  • Rioting when armed with a deadly weapon (Section 148 of the Indian Penal Code).
• The commission of or the intention to commit the below-mentioned acts at any place out of India, which is near the village, is an offence if committed in India:
  • Counterfeiting coins (Section 231 of the Indian Penal Code),
  • Counterfeiting Indian coins (Section 232 of the Indian Penal Code),
  • Making or selling instruments for counterfeiting coins (Section 233 of the Indian Penal Code),
  • Making or selling instruments for counterfeiting Indian coins (Section 234 of the Indian Penal Code),
  • Possession of an instrument or material which would be used for counterfeiting an Indian coin (Section 235 of the Indian Penal Code),
  • Abetment in counterfeiting of Indian coins by a person in India (Section 236 of the Indian Penal Code),
  • Import or export of counterfeit coins (Section 237 of the Indian Penal Code),
  • Import or export counterfeits of the Indian coin (Section 238 of the Indian Penal Code),
  • Murder (Section 300 of the Indian Penal Code),
  • Culpable homicide not amounting to murder (Section 300 of the Indian Penal Code),
  • Theft after preparation made for causing death, hurt, or restraint in order to  commit theft (Section 382 of the Indian Penal Code),
  • Robbery (Section 390 of the Indian Penal Code),
  • Attempt to commit robbery (Section 393 of the Indian Penal Code),
  • Voluntarily causing hurt in committing robbery (Section 394 of the Indian Penal Code),
  • Dacoity (Section 391 of the Indian Penal Code),
  • Dacoity with murder (Section 396 of the Indian Penal Code),
  • Robbery, or dacoity, with an attempt to cause death or grievous hurt (Section 397 of the Indian Penal Code),
  • Attempt to commit robbery or dacoity when armed with a deadly weapon (Section 398 of the Indian Penal Code),
  • Preparation to commit dacoity (Section 399 of the Indian Penal Code),
  • Assembling to commit dacoity (Section 402 of the Indian Penal Code),
  • Mischief by fire or explosive substance with intent to cause damage of the amount: 
    • of one hundred (Section 435 of the Indian Penal Code) or 
    • in the case of agricultural produce, damage to the amount of ten rupees (Section 435 of the Indian Penal Code),
  • Mischief by fire or explosive substance with intent to destroy a house, etc. (Section 436 of the Indian Penal Code),
  • House trespassing to commit an offence punishable with death (Section 449 of the Indian Penal Code),
  • House trespassing to commit an offence punishable with imprisonment for life (Section 450 of the Indian Penal Code),
  • Lurking house-trespass or house-breaking by night to commit an offence punishable with imprisonment (Section 457 of the Indian Penal Code),
  • Lurking house-trespass or house-breaking by night after making preparation to cause hurt, assault, or wrongful restraint (Section 458 of the Indian Penal Code),
  • Grievous hurt caused while committing lurking house-trespass or house-breaking (Section 459 of the Indian Penal Code),
  • Joint liability of people related with a lurking house-trespass or house-breaking by night, where death or grievous hurt caused by one of them (Section 460 of the Indian Penal Code),
  • Counterfeiting currency notes or bank notes (Section 489A of the Indian Penal Code),
  • Using as genuine, forged or counterfeit currency notes or bank notes (Section 489B of the Indian Penal Code),
  • Possession of forged or counterfeit currency notes or bank notes (Section 489C of the Indian Penal Code), or
  • Making or possessing instruments or materials for forging or counterfeiting currency notes or bank notes (Section 489D of the Indian Penal Code).

Report to the Magistrate

After receipt of the information regarding a cognizable offence, the police officer has to forward the same in the form of a report to the Magistrate. This report is a preliminary report which acquaints the Magistrate with the case and the fact that the police shall investigate it.

Report by an officer in charge

A report on cognizable offences is given as per Section 157 of the Code of Criminal Procedure. On reasonable suspicion that a cognizable offence has been committed or attempted within the jurisdiction of a police station, the officer in charge of that police station has to send a report regarding the same to the Magistrate, who can take cognizance of such offence.

This provision keeps the Magistrate informed of the investigation. The object of this provision is to give Magistrate the opportunity to give appropriate directions under Section 159 of the Code of Criminal Procedure in case the police decline to investigate and to check the possibility of its manipulation. The report is to be sent within a reasonable time and without unreasonable delay.

Report by a superior police officer

Section 158 of the Code of Criminal Procedure gives provision for a new link in the chain for sending the report to the Magistrate. In case, the state government directs and appoints a superior police officer through whom the report under Section 157 of the Code is to be submitted then such a direction has to be complied with. In this case, the officer in charge will forward the report to the superior police officer. Then the superior police officer will forward the same to the Magistrate.

Such a superior police officer may also give some instructions to the police officer in charge. Such instructions are to be written on the report and sent to the Magistrate by the superior officer. 

Order by Magistrate

As per Section 159 of the Code of Criminal Procedure, on receipt of the report sent under Section 157 of the Code, the Magistrate has the power to:

• Direct an investigation,
• Deputise holding of a preliminary inquiry by a subordinate Magistrate, or
• Dispose of the case.

However, this Section does not give the Magistrate the power to suspend an already commenced police investigation and direct a magisterial inquiry or a local inspection in place of it. The Section is primarily meant to give the Magistrate the power to direct an investigation in cases where the police decide not to investigate under the proviso to Section 157(1) of the Code. In those cases, the Magistrate can choose the second alternative of proceeding himself or deputing any subordinate Magistrate to hold a preliminary inquiry.

Investigation

Criminal investigation, in actuality, may not be as dramatic as the ones on screen but carry just as many, if not more, steps in its execution. A criminal investigation can be carried out by investigating agencies, such as the police. A criminal investigation is a step towards the ascertainment of the truth. As a custodian of society, the State is an aggrieved party in criminal matters. Hence, the State conducts a criminal investigation to ascertain whether a crime has been committed by the accused and, if yes, then the collection of evidence against the accused. 

While conducting a criminal investigation, the authorities may conduct a search, arrest a suspect, request an investigation in areas outside their jurisdiction, conduct a medical examination, run an identification verification process, compel production, record statements and confessions, and more. Every aspect of the investigation is governed under the criminal procedure statute. The Code also puts provisions in place to keep in check any arbitrary use of power by the authorities.

Cognizable offence

Since the investigation of a cognizable offence can be carried out without an order from the Magistrate, specific provisions in the Code of Criminal Procedure are given for guiding the officers and ascribing powers and procedures regarding the investigation. These provisions keep the investigating officer in check and establish a framework for investigation. However, these provisions do not function as a restraint or hurdle to the investigation.

Power to investigate

Section 156 of the Code of Criminal Procedure talks about the power of the police officer and the Magistrate to investigate a cognizance offence. 

Police officer

When the case is of a cognizable offence, an officer in charge of a police station can investigate without the order of a Magistrate. Receipt and recording of the first information report is not a prerequisite, and hence, the officer in charge can start the investigation based on their own knowledge or any credible information received through an informal intel source. The officer in charge also has the same power a court within the limits of the police station has. The powers of such a court can be found in Chapter XII on the inquiry and trial of the case. Since a Magistrate can try offences committed outside their jurisdiction (reference to Section 181, Section 182 and Section 183 of the Code of Criminal Procedure), the officer in charge also gets the power to investigate a cognizable offence beyond the limits of his local jurisdiction. 

It is also important to note that any proceedings by a police officer at any stage can not be called into question because he did not have the power to investigate herein. 

Magistrate

Any Magistrate of the first class and Magistrate of the second class who is specifically empowered by the Chief Judicial Magistrate to try cases may order such an investigation as above-mentioned. The Magistrate can take this action only at the pre-cognizance stage. This order of investigation by the Magistrate will not constitute taking cognizance under Section 190 of the Code of Criminal Procedure. As laid down by C.B.I. v. Shiv Kumar Singh (1998), the Magistrate can also direct the Central Bureau of Investigation (CBI) to investigate the cognizable offence if the statutory investigating agency has not worked effectively or is not discharging its function fairly and impartially.

Hence, the investigation of a cognizable offence can be carried out either by the will of the officer in charge or by the Magistrate’s order. 

Procedure

Investigation of cognizable offences is laid down in Section 157 of the Code of Criminal Procedure. The Section mentions: 

• sending the report to the Magistrate, 
• proceeding and carrying out an investigation on suspicions of the commission of a cognizable offence, 
• the time when the investigation is to be carried out, and 
• when an investigation may not be carried out. 

Reading Section 157 of the Code of Criminal Procedure, we can infer that the receipt or recording of the first information report is not a precondition to starting the investigation procedure. An officer-in-charge can proceed with the investigation when the officer has reason to suspect a cognizable offence has been committed. This suspicion can be drawn from any other material or other sources of information.

When the investigation is to be carried out

On receipt of information or any other material which gives the officer a reason to suspect that a cognizable offence has been committed, the officer in charge shall:

• Proceed to the spot, investigate, and take the necessary measures to discover or arrest the offender, or 
• Depute it to one of the subordinate officers of rank not less than the ones prescribed by the State government. 

The officer in charge has to execute this procedure only when he has reason to suspect that there has been a commission of a cognizable offence. 

When the investigation is not to be carried out

1. Suppose it appears to the officer in charge that there exist no sufficient grounds to carry out the investigation. In that case, the officer in charge shall not investigate the relevant case. 
2. Suppose the information is given against a person’s name and is in regard to the commission of a non-serious nature. In that case, the police officer in charge need not investigate or deputise the investigation on the spot.

In the above-mentioned cases, the officer in charge of the police station has to state in the report the reasons for not fully complying with the requirements of that subsection. And, if the officer in charge finds no sufficient grounds to carry out the investigation, the officer shall notify the informant, if any, that the case will not be investigated. 

Investigation outside India

Section 166A of the Code of Criminal Procedure talks about the letter of request sent to the competent authority for investigation in a country or place outside India. When there is a possibility of the existence of evidence related to an offence in India being available in a country or place outside of India, the investigating officer or an officer who is superior in rank compared to the investigating officer can make an application for the same during the course of the investigation.

By acting on the given application, any Criminal Court may issue a letter of request to: 

• a court in that foreign country,
• an authority in that foreign country, or 
• a place competent to deal with such a request.

The letter of request issued by the Court is also to be forwarded to the Central Government.  

The Court may also request: 

• oral examination of any person who is supposedly acquainted with the facts or knowledge of the case;
• recording of any statement made by that person during the oral examination;
• production of documents or anything related to the case which is in the possession of any person; and 
• forwarding of all evidence or authenticated copies to the court.

Every above-mentioned statement recorded, document received, or thing received is deemed as evidence collected during the course of the investigation.

A request for investigation from an authority outside of India

Section 166B of the Code of Criminal Procedure talks about the letter of request received by a court or authority in India. This letter of request is sent by a country or place outside India for the purpose of requesting an investigation in India. Many countries help each other in such cases where a case in their country has some relevant evidence in another country. Herein, the requesting country will send a letter of request to another country requesting them to conduct an investigation on their behalf. Other countries will accept such a request as an act of diplomatic courtesy, especially for their allies.

Upon the receipt of the letter of request made by a competent court or authority outside India, the Central Government, at its discretion:

• May forward the receipt of the letter to: 
  • Chief Metropolitan Magistrate,
  • Chief Judicial Magistrate,
  • Such Metropolitan Magistrate appointed in this regard, or 
  • Such Judicial Magistrate appointed in this regard; or
• Forward the letter to any police officer.

In case the letter is forwarded to the Chief Metropolitan Magistrate, Chief Judicial Magistrate, the appointed Metropolitan Magistrate, or the appointed Judicial Magistrate, the Magistrate shall summon the person before them and

• Record the person’s statement,
• Make the person produce the requested document, or
• Make the person produce the requested thing.

In case the Central Government forwards the letter to a police officer to investigate, the police officer is to investigate the case in the same manner as investigations for cases committed in India are conducted. 

All evidence collected herein is to be forwarded as follows:

Evidence collected is forwarded by: the Magistrate/police officer, 

To the: Central Government of India,

The Central Government of India forwards it to the requesting court or authority situated out of India.

Non-completion of investigation under 24 hours

Section 167 of the Code of Criminal Procedure sets out procedures to be followed when a person is put in police custody in relation to the investigation of an offence, and the said investigation can not be completed under a 24 hours deadline. It is imperative to keep in mind that the union territory of Andaman and Nicobar Islands, Delhi, Chandigarh, and Lakshadweep; and the states of Maharashtra, Gujarat, Orissa, Punjab, Tripura, and West Bengal have amended part(s) of Section 167 for its application in their respective states. In contrast, the states of Haryana and Uttar Pradesh have inserted an additional Section 167A of the Code of Criminal Procedure.

Remand

To remand an accused to custody means to send the accused back into the custody of a competent authority. Hence, when the detention of the accused in police custody exceeds 24 hours, the competency of the police custody expires. This is in line with Section 57 of the Code of Criminal Procedure, wherein a person cannot be detained for more than 24 hours in the case of an arrest without a warrant. To detain a person for more than 24 hours, the police officer needs a special order made by a Magistrate extending the period of detention. 

Following Section 167 of the Code of Criminal Procedure, after the detention exceeds 24 hours, the police have to send the accused to the Magistrate and file an application asking for further detention of the accused. This application is known as the remand application. 

Normally, the Magistrate makes an order of remand based on a remand application from the investigating authority. However, a remand application is not a necessary pre-condition to making a legal and valid remand order. As laid down in Ramesh Kumar Ravi v. the State of Bihar (1987), as soon as the accused is produced before a Magistrate, the accused is in custodia legis. It becomes the court’s responsibility and power to order whether he is remanded to further custody, granted bail or released altogether.

General procedure when Judicial Magistrate is available

The investigating agency files a remand application to satisfy the Court that some justified grounds exist to detain the arrested person in custody. The officer must have grounds to believe that the accusation or information is well-founded. 

This remand application is filed when a person is being detained and the investigation is likely to exceed the 24 hours limit. The officer in charge or the investigating officer of a rank not lower than the sub-inspector is required to bring to the Court’s notice the material collected against the detainee to persuade the Court to remand the detainee in custody for the purpose of further investigation. Hence, the officer must transmit to the nearest Judicial Magistrate the copies of the investigating officer’s diary pertaining to the case being investigated. Along with copies, the above-mentioned officer must also forward the detainee to the Magistrate. For the union territory of Andaman and Nicobar Islands, in case there is no Judicial Magistrate on an island, then the accused and the documents are to be transferred to the functioning Executive Magistrate of the island.

An important point of law to remember is that the proviso to Section 167 of the Code of Criminal Procedure does not empower any 2nd class Magistrate to authorise police custody detention unless the Magistrate is specially empowered to do so by the High Court. 

Procedure when Judicial Magistrate is not available

In case of unavailability of a Judicial Magistrate, the officer in charge or the investigating officer of a rank not lower than that of sub-inspector has to forward the detainee and the copies of the investigating officer’s diary pertaining to the case being investigated to the Executive Magistrate conferred with the powers of a Judicial Magistrate or Metropolitan Magistrate. The Executive Magistrate can authorise the detention of the accused in custody for a period of not more than seven days. 

On the expiry of this custody, the accused is to be released on bail unless a competent Judicial Magistrate passes an order of further detention. Before the expiry of the accused’s detention expiry, the Executive Magistrate has to transmit copies of the investigating officer’s diary about the case being investigated to the nearest Judicial Magistrate.

Procedure after transfer of detainee to Judicial Magistrate

After the detainee is transferred to the custody of the Judicial Magistrate, the Magistrate can authorise the detention of the accused for a period of not more than 15 days. It is not necessary that the Magistrate must have the jurisdiction to try the case. An order of detention of 15 days (or 30 days for the state of Punjab) can be given by any Judicial Magistrate.

The detention of the accused may be either police custody or judicial custody, depending on the order of the Magistrate. In the case of police custody, the Magistrate must record the reasons in writing. 

However, in the case of detention of a woman under the age of 18, the Magistrate cannot order the detention in custody. The woman is to be detained in a remand school or recognised social institute.

A Magistrate in Delhi can authorise detention only when the accused is produced before the court in person or through electronic video linkage. Meanwhile, in Maharashtra, detention can be authorised only when the accused is physically produced before the court.

Judicial custody of more than 15 days (30 days in the case of Punjab)

Suppose the Magistrate wishes to authorise judicial custody for a period of more than 15 days (or 30 days in the case of the state of Punjab). In that case, it may be done if adequate grounds exist for extending the period. But such extension cannot be of more than:

• 90 days (120 days in case of the states of Gujarat and Orissa or 180 days in case of the state of Tripura), including the first 15/30 days of detention, when the investigation is of an offence punishable with death, life imprisonment or imprisonment of not less than ten years;
• 60 days (120 days in case of the state of Tripura), including the first 15/30 days of detention, in any other offence’s investigation.

On the expiry of the 90 days (120 days for the states of Gujarat and Orissa or 180 days for the state of Tripura) or 60 days (120 days for the state of Tripura) of detention, the accused is to be released on furnishing of bail. If the accused does not furnish bail, then the detention would continue till the furnishing of bail. This detention, however, would be under a fresh remand order.

Computation of the statutory period 

1. The countdown of the 60/90 (60/120 days for the states of Gujarat and Orissa or 120/180/ days for the state of Tripura) days of detention starts from the day of the first remand order by the Magistrate. 
2. Even a fraction of a day is counted as a whole day. Hence, a remand order made in the evening would count as one whole day.
3. The 60th or 90th-day (120th day for the states of Orissa and Gujarat or 120th/180th day for the state of Tripura) detention period will not be excluded even if it falls on a public holiday or Sunday.
4. The period of temporary bail granted to the accused during the 60/90 (120 days for the states of Orissa and Gujarat or 120/180 days for the state of Tripura) days period would be excluded from the computation.

Duty of Magistrate

The Supreme Court of India, in Hussainara Khatoon v. the State of Bihar (1979), has held that when an undertrial prisoner is produced before the court, and the prisoner has been in custody for 90 days (120 days for the states of Orissa and Gujarat or 180 days for the state of Tripura), or 60 days (120 days for the state of Tripura), as the case may be, the Magistrate has the following foregoing:

1. Before making an order for further remand to judicial custody, the Magistrate must point out to the accused about the right to be released on bail.
2. The Magistrate must take care to see that the right of the undertrial prisoner to the assistance of a lawyer at State cost is secured even without explicitly asking for it.

Extension of detention

In case of further detention, the mode of action depends on the jurisdiction of the Magistrate. If the Magistrate:

• Wishes to continue further detention of the accused, and
  • Has jurisdiction to try the case, then the accused can be detained for a further period;
  • Does not have the jurisdiction to try the case, then the accused is to be forwarded to the Magistrate who has the jurisdiction.
• Wishes to not continue further detention of the accused; the accused is to be released from judicial custody.

If further detention is ordered, it can be only in the form of judicial custody. However, a person can be placed in police custody from judicial custody if the same person is involved in a different case arising out of a different transaction for the first 15 days.

The Magistrate can extend the judicial custody even if the accused is presented in person or through video conference. The proof of attendance of the accused can be shown either by the accused’s signature on the order authorising detention or the Magistrate’s certified order for production of the accused by video conference. 

For the union territory of Delhi, this proof of attendance can be either the order authorising detention or the video recording of the proceeding. 

For the state of Gujarat, in the matter of extending custody, if:

1. The accused is in police custody, the custody can be extended only if the accused is produced physically before the Magistrate.
2. The accused is in judicial custody, the custody can be extended if the accused is produced as per the Magistrate’s direction, that is either physically or through electronic video linkage.

Police custody exceeding 24 hours

Police custody of an accused when the custody duration exceeds 24 hours is to be authorised by the Judicial Magistrate only when there is attendance and production of the accused before the Magistrate for the first time and other subsequent times during the duration of the police custody. A Magistrate in Gujarat, however, can authorise police custody even without the production of the accused before the court, if the Magistrate records the reason for doing so. In case of the union territory of Andaman and Nicobar Islands, only a District Magistrate or Sub-divisional Magistrate can authorise such police custody detention. 

A Magistrate granting police custody has to record the reasons for granting it. The Magistrate also has to forward the order of police custody along with the reasons for granting it to the Chief Judicial Magistrate. In case of the union territory of Andaman and Nicobar Islands, the Executive Magistrate has to submit these reasons to the Executive Magistrate they are subordinate to. While in the union territory of Chandigarh, the Executive Magistrate has to submit these reasons to the District Magistrate.

Summons case

In case an offence is triable as a summon case, if the investigation has not been concluded within six months of the date of arrest, the Magistrate has to make an order to stop all investigations related to the case.

However, the Magistrate may not pass this order if the investigating officer satisfies the Magistrate that the continuation of the investigation is necessary for justice and some special reasons. 

The above-mentioned order of the Magistrate can be vacated by order of the Sessions Judge. The Sessions Judge can pass the order based on an application for further investigation and direct further investigation subject to directions on bail and other matters. 

West Bengal has, however, made an addition to this criteria. Therefore, for the state of West Bengal, if: 

1. there is a case triable as summon case and its investigation has not been concluded within six months,
2. Investigation of a case exclusively triable by Session Court is not completed within three years, or
3. Any other case’s investigation which has not been completed within two years from the date of the accused’s arrest or appearance

Then the Magistrate has to pass an order to stop the investigation and discharge the accused.

Arrest

It may be possible that the investigating authorities may arrest a person during the course of an investigation. The reasons for the arrest can be things such as the flight risk of the suspect, preventing the accused from commiting more crimes, and more. For such circumstances, the Code of Criminal Procedure lays down various provisions that outline the whole process, the power to make an arrest, when this power is to be exercised when an arrest could be made without a warrant, and the arrest warrant.

Arrest without warrant

A police officer’s guide to arresting any person without a warrant is Section 41 of the Code of Criminal Procedure. This arrest can not be executed in cases of non-cognizable offences, a situation where a complaint has been made, credible information or reasonable suspicion exists of a person committing or attempting an offence. An arrest without a warrant is mostly seen in cognizable offence cases.

Arrest by police under Section 41 of the Code of Criminal Procedure

Section 41 of the Code states the circumstances where a person can be arrested without a warrant. Below-mentioned points are the circumstances where a person can be arrested without a warrant and is in a way related to a criminal investigation. A person may be arrested by a police officer even without a warrant and without an order from a Magistrate, during the course of the investigation, in case –

• There is credible information received that the person has committed a cognizable offence of imprisonment of more than 7 years or the death penalty, and the police officer has reason to believe the committing of crime by the said person.
• A person against who:
  • A reasonable complaint is received, 
  • Some credible information is received, or reasonable suspicions exist regarding committing of offence outside of India which
    • Is an offence in India and 
    • Makes the person liable for detention or apprehension in India.
• If there is a (a) reasonable complaint made, (b) credible information has been received, or (c) a reasonable suspicion exists that the person has committed a cognizable offence punishable with imprisonment for a term not exceeding 7 years, then if the following conditions are satisfied, namely: 
  • the police officer has reason to believe that such person has committed the said offence; 
  • (ii) the police officer is satisfied that such arrest is necessary— 
    • for proper investigation of the offence; or 
    • to prevent such person from causing the evidence of the offence to disappear or tampering with such evidence in any manner; or 
    • to prevent such person from making any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to the police officer;

In these above-mentioned cases, the police officer shall record the reasons for the arrest in writing at the time of the arrest. If, in the above-mentioned cases, the arrest of a person is not required, even then, the police officer has to record the reasons for not making the arrest in writing.

• A person in possession of property which is reasonably suspected to be stolen and is suspected of an offence in regards to this property. 
• A person who escapes or attempts to escape lawful custody.

Arrest by police on non-compliance with notice to appear

Section 41A of the Code of Criminal Procedure, a police officer can arrest a person if:

• A reasonable complaint is made against the person,
• Credible information is received against the person, or
• Reasonable suspicion exists that the person has committed a cognizable offence, AND
• A notice directing the person to appear before the police officer is not complied with.

However, Section 41A gives the police officer the discretionary authority to arrest the person even if there is compliance with the notice to appear, in case the police is of the opinion that the arrest has to be made. But, such reasons for arrest have to be recorded in writing by the police officer.

Arrest by police in case the accused refuses to identify

Section 41A of the Code of Criminal Procedure, a police officer can arrest a person if:

• A reasonable complaint is made against the person,
• Credible information is received against the person, or
• Reasonable suspicion exists that the person has committed a cognizable offence, AND
• The person is unwilling to identify themself.

Arrest by police when accused of non-cognizable offences refuses or gives false name and residence

Section 42 of the Code of Criminal Procedure gives an interesting provision for making an arrest. Herein, if in the presence of a police officer, a person commits or is accused of committing a non-cognizable offence:

• Gives a false name or residence, or
• Refuses to give their name and residence to the police officer’s demand

Then the police officer can arrest such a person until their true name and/or residence is ascertained.

Arrest by a subordinate police officer

There may be instances where the investigating officer or the officer in charge deputises the arrest to a subordinate police officer. In such a scenario, Section 55 comes into the scene. 

The person who is to be arrested without an arrest warrant by the deputised subordinate police officer must be someone that can be lawfully arrested without a warrant. It is the responsibility of the superior officer to give the subordinate police officer the order to arrest in writing. This order must specify the person to be arrested and the offence or other cause for which the arrest is to be made. 

When the subordinate officer goes to make the arrest, the officer must notify the person to be arrested about the order. If the person to be arrested asks the subordinate officer to show him/her/them the order, then the police officer has to show him/her/them the order. This is a compulsory duty and cannot be avoided.

Arrest by a private person

Even a private person (such as a citizen, resident, etc.) can arrest a person under Section 43 of the Code of Criminal Procedure. To be legally accurate, the Section does not give the private person the ‘legal authority to make an arrest’, as given to police officers or Magistrates. But, the Section does empower private persons to arrest an accused temporarily. After that, the private person has to hand over the accused to the present police officer, or in the absence of a police officer, to the nearest police station. This arrest can be made only when the accused commits a non-bailable and cognizable offence, or when the accused is a proclaimed offender. In general, it is not recommended for private persons to get in between the law enforcement procedures, but in such dire circumstances, the law allows private persons to arrest an accused for the sake of furtherance and aid of justice.

Arrest by Magistrate

The power of the Magistrate to arrest is provided under Section 44 of the Code of Criminal Procedure. Herein,

1. A Magistrate has the power to arrest or cause an arrest to be made of an accused who has committed an offence in the Magistrate’s presence and within the Magistrate’s local authority.
2. If the Magistrate has the power to issue an arrest warrant against a person, then the Magistrate is competent enough to order the arrest of that person without issuing a warrant. Hence, even for a non-cognizable offence, a person can be arrested without a warrant if the Magistrate makes or orders the arrest.

It is also given that the Magistrate may order any person to arrest the offender; hence, the Magistrate may order any civilian to arrest the offender too. This is an exception to the provisions of arrest by a private person where committing a non-bailable and cognizable offence is necessary before a private person can arrest an offender. 

The states of Haryana and Uttar Pradesh have made an important addition to their application of the Code of Criminal Procedure. Herein, Section 167A states that Section 167 of the Code of Criminal Procedure also applies to the procedure of an arrest made on a Magistrate’s order.

Arrest warrant

An arrest warrant is an order addressed to a certain person to arrest the accused, take him into custody, and bring the accused before the court issuing the warrant. An arrest warrant is compulsorily needed in arrests of non-cognizable offences. An arrest warrant is issued by a competent court in India. A warrant can be executed at any place in India.

Valid warrant

For a warrant to be valid:

• It must be issued by a Court under this Code, which has the jurisdiction to issue the warrant. 
• In case the execution is outside of the Court’s jurisdiction, then the arrest warrant has to be endorsed by the Executive Magistrate, District Superintendent, Commissioner, or officer-in-charge of that jurisdiction’s police station.
• It must be in writing and in the form prescribed in the 2nd schedule.
• It must be issued in duplicate.
• It must be signed by the presiding officer of the Court issuing it (the Magistrate who presides in the Court at the time of issuing the warrant.
• It must bear the name of the Court with the seal of that Court. 
• It must give the full name and description of the person to be arrested.
• It must specify the offence charged.
• It must give the name and designation of the person who is to execute it.

Form of an arrest warrant

The form of an arrest warrant is given and reproduced from Schedule 2nd of the Code of Criminal Procedure. Below is a copy of the arrest warrant found on the Aizawl District Court’s website.

IN THE COURT OF ____________________________________

DISTRICT: ______________________

Assam Schedule VIII, Form 152 

HIGH COURT CRIMINAL FORM NO. 2 

WARRANT OF ARREST 

No. II, Schedule V, Act V, 1898 

(Section 70 of the Code of Criminal Procedure) Case No. ………   

     Next Date………

(1)Name and the designation of            To, (1) 

the person or persons who is                 ………………………………………………. 

or are to execute the warrant                 ……………………………………………….                

                                                               ……………………………………………….

            Whereas…………………………………….

s/o,d/o.w/o…………………………………. 

of…………………………………………….……………………………………………….

(2) State the offence                               stands charged with offence of (2)………..         ………………………………………………

is/are hereby directed to arrest the said    accused and produce him/her before me, Herein fail not. 

Dated, the ……… day of ………… 20…. 

(signature)

Magistrate/Judge

If the said accused……………………….. shall give bail himself/herself in the sum of Rs.…………with surety in the sum of Rs…………. to attend before me on the

 ………… day of …………………… 20….. and continue to attend until otherwise directed by me, he may be released.

 Dated, the …………. day of …… 20…..

  (signature)

Magistrate/Judge 

The procedure of making an arrest

Section 41B tells us the procedure of arrest and the duties of the officer making an arrest. The officer who is making an arrest has to

• Bear an accurate, visible and clear identification of his name; 
• Prepare a memorandum of arrest, which is to be 
  • Attested by at least one witness, who is either a family member of the person arrested or a respectable member of the locality where the arrest is made, and
  • countersigned by the person arrested,
• inform the person arrested, unless the memorandum is attested by a family member, that they have a right to inform a relative or a friend about the arrest. 

How the arrest is to be made

Section 46 of the Code of Criminal Procedure talks about how an arrest is to be made. To make an arrest, it goes without saying that touching or confining the person to be arrested is an inevitable act. The Criminal Procedure Code permits this act in Section 46(1). However, such an act is not permitted when there is submission to the custody by word or action. Even sub-section 2 of Section 46 gives the police officer or the person making the arrest the power to use any means to execute the arrest in case there is resistance or attempts to evade arrest. 

But this authority is not blanket protection. In addition to the power to arrest, there exists a limitation to this power and the means used to execute it. This Section does not give the right to cause the death of a person. The force used should not exceed the reasonable use of force permitted in that situation. If police use more force than what is reasonably needed, then that is termed “excessive use of force.” The use of force must be proportional to the need for force in that circumstance. Hence, if a police officer or some other person making the arrest, in any circumstance, causes the death of a person who is not accused of an offence punishable with death or imprisonment for life (for example, theft), they cannot take refuge in Section 46. Hence, beating a theft to death on evasion of arrest is excessive use of force and is not allowed under Section 46.

However, it is important to note that the Section uses negation. It explicitly says that the Section does not give a right to cause the death of someone who is not accused of an offence punishable with death or imprisonment for life. This could be interpreted to apply not only to the person accused of other offences, but also to a bystander or a criminal conspirator.

How is a woman to be arrested

There are also specific provisions made in case the person who is to be arrested is a woman. 

In case a woman is to be arrested, and unless the circumstances indicate the contrary, there is a presumption that the woman submits to custody when orally intimated of the arrest. Hence, a police officer can not touch the body of a woman while making an arrest unless:

• The police officer making the arrest is a female, or
• The circumstances require otherwise.

The Section has also provided the time of executing the arrest of a woman. A woman is not to be arrested before sunrise or after sunset unless there exist exceptional circumstances. There is no specification of what constitutes exceptional circumstances. However, as per the Section, if there exist exceptional circumstances, as per the police officer, and an arrest has to be made before sunrise or after sunset, then:

• A woman police officer has to make a written report about the to be made arrest and mention the exceptional circumstances.
• Using the written report, the woman police officer has to obtain permission from a first class Judicial Magistrate within whose local jurisdiction:
  • The offence is committed, or
  • The arrest is to be made.
• Permission from the first class Judicial Magistrate has to be obtained prior to the arrest.

Evidence

The dictionary meaning of evidence is the available information through which a proposition can be concluded as true or untrue. One of its synonyms is proof. Evidence is a gamechanger in any criminal proceeding. Even one piece of relevant evidence is sufficient to make or break the case. The state machinery uses evidence to convict an accused of an offence. Hence, one of the primary aims of conducting a criminal investigation is to collect evidence against the accused. This collection of evidence can be made up of witness testimonials, confessions, statements, documents, things, articles, medical examination reports, etc.

Witness

A witness is someone who was present and saw an act unfold before them. Witnesses, many of times, are the first complainant of an offence. They play an important role in getting the accused convicted / acquitted of the offence. But as in the end, the witnesses are humans, their words do not mean judgement. The witness’s testimonials need to be backed by tangible, hard evidence. Hence, the courts do not give their judgement just on the basis of the witness’ testimonials.

Nevertheless, the Code of Criminal Procedure has laid down provisions about witnesses in various sections.  

Order of attendance

As per Section 160 of the Code of Criminal Procedure, an investigating officer may give a written order of attendance to a person familiar with the facts and circumstances of the case and within the limit of the investigating officer’s police station or adjoining station. This Section provides a facility for obtaining evidence. Hence, even an accused can be called based on this Section to appear as a witness. But an accused cannot be called to answer the charge made against them.

Order of attendance in special circumstances

In case, the person whose attendance is ordered is a:

• Male under the age of 15, 
• Male above the age of 65,
• Woman, or
• A person with a mentally or physically disability,

Then the attendance is to be done at the person’s residence and not at any other place. 

Payment of expenditure made by the witness

The state government may make rules which provide payment of reasonable expenditure for a person attending a place other than their residence. This payment is to be made by the investigating officer. For example, transportation expenses. 

Examination of witnesses by the police

Provision regarding the examination of witnesses by the police is given under Section 161 of the Code of Criminal Procedure. As per the Section, during an investigation, any person who is supposedly acquainted with the case can be orally examined by a police officer in charge of the investigation or a police officer deputed to carry out the investigation. This examination is totally at the discretion of the investigating officer.

Self-incrimination

Other than the question which can expose the witness to a penalty, forfeiture, or criminal charge, the witness is legally bound to state the truth for all questions asked by the police officer which are related to the case. This protects the fundamental right of immunity against self-incrimination as guaranteed by Article 20(3) of the Constitution of India. The words “expose himself to a criminal charge” used in Section 161 of the Code of Criminal Procedure protects a person from present and future incrimination. In the context of Article 20(3) of the Indian Constitution, it is proper to say the fundamental right guarantees immunity not only in procedures made under Section 161 of the Code but also in every stage of furnishing information and collection of material. 

Recording of a statement by a woman regarding the commission or attempt of certain offences against her

A woman police officer or woman officer has to record any statement made by a woman about the commission or attempt of the following offences against her:

• Outraging the modesty of a woman (Section 354 of the Indian Penal Code), 
• Sexual harassment (Section 354A of the Indian Penal Code), 
• Assault or criminal force on a woman with intent to disrobe (Section 345B of the Indian Penal Code), 
• Voyeurism (Section 354C of the Indian Penal Code), 
• Stalking (Section 354D of the Indian Penal Code), 
• Rape (Section 376 of the Indian Penal Code), 
• Rape causing death or resulting in a persistent vegetative state of the victim (Section 376A of the Indian Penal Code), 
• Sexual intercourse forced by the husband upon his wife during separation (Section 376B of the Indian Penal Code), 
• Rape done by a person in authority (Section 376C of the Indian Penal Code), 
• Gang rape (Section 376D of the Indian Penal Code), 
• The repeated offender of rape (Section 376E of the Indian Penal Code), or 
• Words, gestures or acts done with the intention to insult the modesty of a woman (Section 509 of the Indian Penal Code)

Evidence (Statement made by the witness)

Any statement of a witness recorded under Section 161 is documentary evidence under Section 3 of the Evidence Act. Hence, it can be produced before the court of law as evidence. However, such a statement or its record cannot be used at any inquiry or trial of any offence under investigation when the statement was made. For the sake of simplicity, the statement can be used as evidence only at an inquiry or trial of the case for which the witness examination was held. 

Manner of recording evidence

• When there is more than one witness, the police officer shall record the statement of the witnesses separately.
• The Investigating Officer shall not use any threat, inducement, coercion or assault to obtain the statement of the witness.
• If any statement is made to the police officer during the examination, the police officer may reduce the same statement into writing. This statement can also be audio-recorded. 
• The officer shall make a separate and true record of the statement of each such statement.
• The officer should not make the witness sign the written statement.

Medical examination

Provisions for medical examination of the accused are given in Section 53, Section 53A, and Section 54 of the Code of Criminal Procedure. They talk in detail about the procedure to be followed, who is to conduct the medical examination, the relevant report to be made, and what the report should contain about the medication examination and its findings. For clarity of meaning, the explanation to Section 53 of the Code provides definitions of “medical examination” and “registered medical practitioner.” These definitions apply to Section 53, Section 53A, and Section 54 of the Code of Criminal Procedure.

Medical examination

As defined in explanation to Section 53 of the Code of Criminal Procedure, an examination includes and is not limited to the examination of: 

• blood, 
• blood stains, 
• semen, 
• swabs in case of sexual offences, 
• sputum and sweat, 
• hair samples, and 
• fingernail clippings. 

by using modern and scientific techniques, including DNA profiling and other tests that the registered medical practitioner thinks is necessary in a particular case.

Registered medical practitioner

A “registered medical practitioner” is a medical practitioner who:

• possesses any medical qualification mentioned in the Schedules of the Indian Medical Council Act, 1956 and
• whose name has been entered in a State Medical Register.

Examination by a registered medical practitioner on the request of a police officer

Reading Section 53 of the Code of Criminal Procedure, If there are reasonable grounds to believe that an examination of the arrested person will lead to a collection of some evidence, then: 

• A registered medical practitioner who is acting on the request of a police officer, not below the rank of sub-inspector, and 
• Any person acting in good faith in aid and under the direction of the registered medical practitioner,

May make a reasonably necessary examination of the arrested person to ascertain the facts which may lead to such evidence and use such force as is reasonably necessary for that purpose. 

Examination requests by other superior officers or the Court

Though this Section lays down a condition that medical examination will have to be done at the instance of a police officer of not below the rank of sub-inspector, it does not debar other superior officers or the Court concerned from exercising the said power when it was necessary for doing justice in a criminal case. This view was affirmed by the Madras High Court and the Bombay High Court in the respective cases of Thaniel Victor v. the State (1990), and Anil Anantrao Lokhande v. the State of Maharashtra, (1980).

Referring to the Section’s wording and the legislature’s intent, it is abundantly clear that there is no aspect of the arrested person’s consent to the medical examination. Hence, a medical examination for the collection of evidence under Section 53 of the Code of Criminal Procedure can be done even without the arrested person’s consent.

Examination of a female arrested person

In case the arrested person is a female and is to be examined, then the  examination shall be: 

• made only by a female registered medical practitioner, or 
• under the supervision of a female registered medical practitioner.

Examination of accused of rape by a registered medical practitioner

Section 53A of the Code of Criminal Procedure is a specific provision about the medical examination of a person accused of committing or attempting rape. This examination is to be conducted by a medical practitioner. This medical examination is solely carried out for the purpose of collecting evidence of the commission or attempt of rape by the accused.

In case of availability of a registered medical practitioner employed in a hospital run by the Government or by a local authority within 16 kilometres from the place of the offence

If there are reasonable grounds to believe that a medical examination of a person arrested for rape or attempt to rape will lead to the collection of evidence related to the offence, the arrested person may be examined by a registered medical practitioner employed in a hospital run by the government or by a local authority. Unlike Section 53 of the Code of Criminal Procedure, in this scenario, the registered medical practitioner in the above-mentioned hospital can carry out the medical examination of a rape accused even without a request from a police officer. 

Unavailability of a registered medical practitioner employed in a hospital run by the Government or by a local authority within 16 kilometres from the place of the offence

In case there is no such practitioner within a radius of sixteen kilometres from the place of the offence, then: 

• any other registered medical practitioner, acting at the request of a police officer of not below the rank of a sub-inspector, and 
• any person acting in good faith in aid and under the direction of the registered medical practitioner

May conduct a medical examination.

The practitioner may reasonably use force as necessary to conduct the examination of the arrested person.

Format of the medical examination report

The registered medical practitioner also has to prepare a report of his examination giving the following details

• Accused’s name and address,
• the name and address of the person by whom the accused was brought, 
• Accused’s age, 
• marks of injury on the accused, 
• the description of material taken for DNA profiling,
• other material particulars in reasonable detail,
• reasons for the conclusion arrived at, and
• The exact time of commencement and completion of the examination.

The registered medical practitioner has to forward this report to the investigating officer.

Examination of an arrested person by a medical officer, or a registered medical practitioner in case of unavailability 

Section 54 of the Code of Criminal Procedure talks about the examination of an arrested person by a medical officer. Though it may look similar to Section 53 of the Code of Criminal Procedure, the intention and use of both Sections differ. Reading the report of the Joint Committee on whose recommendation the Section was inserted, the intent is to give the accused a chance to clear their name. Under this Section, the accused has to go through a medical examination mandatorily. The accused thus can use the medical report’s findings to prove their innocence and/or establish physical injuries sustained due to violence in custody or arrest. But, just as in Section 53, the medical examination in Section 54 is not done based on the consent of the accused.

An arrested person is to be examined by a medical officer in the service of the Central or State Government. In case the medical officer is not available, the medical examination is to be conducted by a registered medical practitioner soon after the arrest. 

The state of Uttar Pradesh has inserted a sentence at the end of Section 54 of the Code of Criminal Procedure which mandates a free-of-cost report of the medical examination to the accused.

Examination of a female arrested person

There is an additional requirement in case the arrested person is a female. In such circumstances, the medical examination is to be made: 

• If a female medical officer is available, then:
  • The female medical officer has to conduct the medical examination, or 
  • The medical examination is to be conducted under the supervision of a female medical officer; and
    • If a female medical officer is not available, then the medical examination is to be conducted by a female registered medical practitioner.

Medical examination record

They also have to prepare a record of the conducted medical examination with a mention of any injuries or marks of violence found on the arrested person’s body, along with the approximate time when such injuries or marks may have been inflicted. 

Copy of medical examination report

The arrested person or the person nominated by such an arrested person is also to be given a copy of the above-mentioned medical examination report.

Examination of a person on bail

As the Sections use the word ‘person arrested’, medical examination of a person on bail can also be carried out within these Sections. A person on bail is notionally in the custody of the court and hence continues to be a person arrested. Even in spite of the fact that the accused had been released on bail, the accused continues to be a person arrested on a charge of the commission of an offence and, therefore, the medical examination can be carried out (Thaniel Victor v. the State).

Identification

Section 54A of the Code of Criminal Procedure talks about the identification of the arrested person. An arrested person may be subjected to identification on the order of a court if the person’s identification is necessary for investigation. This identification may be made by any person. 

The state of Uttar Pradesh has inserted an additional Section 54A by way of Code of Criminal Procedure (Uttar Pradesh Amendment) Act, 1977 wherein the identification can be carried out by an Executive Magistrate acting at the instance of the Court.

Identification of a person with a mental or physical disability

However, if the person identifying the person arrested has a mental or physical disability: 

• The process of identification shall take place under the supervision of a Judicial Magistrate. 
• The Magistrate must take appropriate steps to ensure that the methods used for identification are something the person identifying is comfortable with. 
• The identification process is to be videographed.

Recording of statements and confessions by a Magistrate

The provision for the recording of statements and confessions by a Magistrate can be found in Section 164 of the Code of Criminal Procedure. A Metropolitan Magistrate or Judicial Magistrate has the power to record any statement or confession made to the said Magistrate during the course of the investigation. This power is discretionary, and if exercised, compliance with the Section’s requirements is necessary. After complying with the Section, the Magistrate has to forward the recording of the statement and confession to the Magistrate, who will try or inquire about the case. 

The union territory of Andaman and Nicobar Islands has made a specific insertion in the Section, wherein, in case there is no Judicial Magistrate, the State government, after consultation with the High Court, can specially empower any Executive Magistrate with the power to record any statement or confession, for the purpose of expediency.

Confession

Confession is a direct admission or acknowledgement of guilt of committing or attempting a crime by a person. A confession is usually made with the intent to pay for what the person has done or to relieve guilt. For this, a person may make a confession to any person, such as priests, family members, police, etc. But, it is not necessary that the confession made by the guilty person be a confession in the eyes of the law. For this, the confession needs to be validly made and fulfil the prescribed conditions and manner of making it. Only after doing this is when a confession becomes admissible in a court of law.

For a confession to be valid and admissible, it must be made before a Magistrate while complying with the requirements below. Hence, any confession made to the police or made without complying with the Section’s requirement is not a confession at all. This Section is an intentional safeguard against the rampant use of force by police to get coerced and false confessions. 

In case a person backs out of making the confession, their well-being is still protected. Hence, the Magistrate can not authorise police custody of a person who is unwilling to make a confession.

Confession and Evidence Act

Since confession is used as evidence in a criminal proceeding, it is important to look at what the Evidence Act provides regarding confession relevant to criminal proceedings. Section 24 to Section 30 of the Evidence Act are the specific provision on confession. Reading the Evidence Act and the Code of Criminal Procedure, the relevant points about a valid confession are as follows:

• A confession made before the Magistrate and during a police investigation is admissible only when the Magistrate records it as provided in Section 164 of the Code of Criminal Procedure.
• A confession given to a police officer is not admissible unless it falls under the ambit of Section 27 of the Evidence Act.
• Confession made to a person other than police and under police custody is 
  • Validly admissible if made in the immediate presence of the Magistrate or made under Section 27 of the Evidence Act. 
  • Inadmissible under Section 26 of the Evidence Act if it is not made in the immediate presence of the Magistrate.
• A confession under Section 27 of the Evidence Act is not barred under Section 162 of the Code of Criminal Procedure.
• A confession may also be made before the Court at any stage of the trial.
• A confession which fulfils the conditions of Section 24 of the Evidence Act is inadmissible in a criminal proceedings. That is, a confession is admissible if it is not made as a result of inducement, threat or promise by a person in authority (for example, a police officer) that by making the confession the accused will gain an advantage or avoid harm in reference to the charge levied.
• As per Section 29 of the Evidence Act, a confession does not become irrelevant just because:
  • It was made under a promise of secrecy,
  • The confession was a result of a deceit practiced on the confessor,
  • The confessor was drunk at the time of making the confession,
  • The confession was an answer to a question which the confessor was not required to answer, or
  • The confessor was not warned that he/she is not bound to make a confession and that such a confession would be used against the confessor.

Manner of recording

The manner of recording a confession is the same as the manner of recording an examination as given in Section 281 of the Code of Criminal Procedure. The summarized version of Section 281 and the manner of the recording provided in Section 164 of the Code of Criminal Procedure are as follows: 

• A confession is an audio video recorded in the presence of the advocate representing the accused. 
• The Magistrate has to explain to the person making a confession that they are not bound to make a confession and that the recorded confession will be used against them as evidence.
• The confession is shown or read to the maker.
• In case the language of the record of confession is something the accused does not understand, then the record should be interpreted to the accused in a language which the accused understands. The accused, in this case, also has the liberty to explain or add to the confession. 
• The Magistrate also has to make and sign a memorandum mentioning: 
  • The fulfilment of the above-mentioned obligations, 
  • That the confession was taken in their presence, 
  • The confession was read over to the person making it, and
  • The confession was admitted to be correct by the person making the confession.
• The confession should be written preferably in the language in which the accused is examined. In case this can not be done due to practicability, then the language of the Court is to be used.
• The record is to be signed by the accused and by the Magistrate.
• The recorded confession is to be signed by the person making the confession.
• The Magistrate shall not record a confession which is not being made voluntarily.
• The Magistrate has to certify that: 
  • The confession was taken in their presence and hearing, and 
  • The record contains a full and true account of the statement made by the accused.
• If the accused is examined by a Metropolitan Magistrate, the Magistrate shall make a memorandum of the substance of the examination of the accused in the language of the Court, and such memorandum shall be signed by the Magistrate and shall form part of the record. 
• If the accused is examined by a Judicial Magistrate, then the whole of such examination, including every question put before and every answer given by the accused, should be recorded in full by: 
  • The Magistrate, or 
  • By an officer of the Court when the Magistrate is unable to do so owing to a physical or another incapacity. Then such an officer has to work under the direction and superintendence of the Magistrate.

Statement

In the case of a statement, it shall be recorded as in the way the Magistrate thinks is best fitted to the circumstances of the case. 

Recording of statements regarding the commission of certain offences

In case of the commission of the following offences:

• Outraging the modesty of a woman (Section 354), 
• Sexual harassment (Section 354A), 
• Assault or criminal force on a woman with intent to disrobe (Section 345B), 
• Voyeurism (Section 354C), 
• Stalking (Section 354D), 
• Rape (Section 376(1) and Section 376(2),
• Rape causing death or resulting in a persistent vegetative state of the victim (Section 376A), 
• Sexual intercourse forced by the husband upon his wife during separation (Section 376B), 
• Rape done by a person in authority (Section 376C), 
• Gang rape (Section 376D), 
• Repeated offenders (Section 376E), or 
• Words, gestures or acts done with the intention to insult the modesty of a woman (Section 509)

are brought to the notice of the police, the Judicial Magistrate shall record the statement of the victim as best fitted to the circumstances of the case. 

In case the victim is mentally or physically disabled

If, in the given case, the victim is temporarily or permanently mentally or physically disabled, the Magistrate shall take the assistance of an interpreter or a special educator in recording the statement. This statement is to be videographed. 

Recording of the statement given by a victim of rape by a woman police officer

Unlike above, the recording of the statement of a victim of rape is given in proviso to Section 157(1) of the Code of Criminal Procedure. The proviso says that the recording of the victim’s statement in an offence of rape is to be done at the victim’s residence or a place of the victim’s choice. The recording should be done by a female police officer in the presence of her parents or guardian or close relatives or social worker in the locality, if practically possible. 

Search

It can happen that evidence that the police require or find important in relation to the investigation can be found at a particular place, person, or vehicle. To acquire this evidence, the police might need to search a person or vehicle or enter and search this particular place. This is known as “conducting a search”. After conducting this search, the police can confiscate the illegal items or evidence if found. However, before conducting a search of a place, it may be necessary to have a search warrant stating the same.

Search warrant

A search warrant is a court order which gives the police officer the authority: to search a person or vehicle, to enter and search a premise, and to confiscate illegal items or evidence of a crime. The search warrant may also specify the extent of the place to be searched and the time and date of the search. To get a search warrant, the police officer has to convince a judge that there is evidence of a crime at that place.

Who can issue a search-warrant

A Chief Judicial Magistrate or a District Magistrate are the only authorised persons who can issue a search warrant.

When a search warrant may be issued

A search warrant may generally be issued as provided by Section 93 of the Code of Criminal Procedure or per the special circumstances mentioned in Section 94 of the Code of Criminal Procedure.  

General circumstances

• If a person is ordered to produce a document or thing under section 91 or section 92(1) of the Code of Criminal Procedure, and the Court is of the belief that this person would not produce the documents
• When the Court has no knowledge of the possessor of the documents or things which are necessary or desirable under section 91 or section 92(1) of the Code of Criminal Procedure,
• The Court is of the opinion that a general search will fulfil the purpose of any proceedings under the Code of Criminal Procedure.

Special circumstances

Section 94 of the Code of Criminal Procedure constitutes special circumstances for issuing a search warrant. Herein, the Magistrate has the power to issue a search warrant for a place suspected to contain stolen property, forged documents, etc.

A District Magistrate, Sub-divisional Magistrate or Magistrate of the first class may issue a search warrant for a place believed to be: 

• Used to deposit or sale of stolen property,
• Used to deposit, sell, or production of any objectionable article, or
• The place where an objectionable article is deposited.

For this, the Magistrate must have a reasonable belief that the place sought to be searched is used for depositing or selling stolen properties. As the power conferred on the Magistrate by this section is of a drastic nature, the Magistrate ought to be very guarded and circumspect, before exercising it.

Objectionable articles

An objectionable article is a:

• Counterfeit coin; 
• Pieces of metal: 
  • made in contravention of the Metal Tokens Act, 1889, or 
  • brought into India in contravention of any notification under Section 11 of the Customs Act, 1962; 
    • Counterfeit currency note; 
    • Counterfeit stamps; 
    • Forged documents; 
    • False seals; 
    • Obscene objects referred to in section 292 of the Indian Penal Code; 
    • Instruments or materials used for the production of any of the above-mentioned articles. 

Acts authorised by the search warrant

This warrant will authorise a police officer above the rank of constable:

• To enter, with assistance if required, the place, 
• To search the place as per the manner specified in the warrant, 
• To take possession of any property or article which is reasonably suspected to be stolen property or objectionable article, 
• To: 
  • Convey such property or article before a Magistrate, 
  • Guard the same on the spot until the offender is taken before a Magistrate, or 
  • Dispose of it in some place of safety, and
    • To take into custody and carry before a Magistrate every person found in such place who appears to have been privy to the deposit, sale or production of any such property or article knowing or having reasonable cause to suspect it to be stolen or objectionable.

Direction of a search warrant

Ordinarily, as per Section 72 of the Code of Criminal Procedure, a warrant is directed to one or more police officers. But the court has the power to direct the warrant to someone other than a police officer if:

• Its immediate execution is necessary, and 
• No police officer is immediately available.

A search warrant directed to a police officer under Section 74 of the Code of Criminal Procedure can also be executed by any other police officer to whom the warrant is endorsed. Even an endorsed warrant can be endorsed again and executed by the endorsed police officer.

Execution of search warrant

As per Section 77 of the Code of Criminal Procedure, a search warrant can be executed anywhere in India. In case a search is to be conducted in a place outside India, a letter of request is sent to the foreign country’s competent authority. A search warrant issued under this Code cannot be used to search outside India.

In the Chapter “Aid to the Magistrate and the police”, Section 38 of the Code of Criminal Procedure talks about aiding a person in executing a warrant. When a warrant is directed to someone other than a police officer, then any other person may provide aid in the execution of the warrant. 

Warrant forwarded for execution outside the issuing Court’s jurisdiction (Section 78 of the Code of Criminal Procedure)

As we know, every court has its own specific jurisdiction. Any order or issuance by the court is applicable and can be executed in the jurisdiction it is legally vested with. Regarding a search warrant, there may be a scenario where the warrant is to be executed outside the local jurisdiction of the court issuing it. In circumstances where the warrant’s execution is within the issuing court’s jurisdiction, the Court would direct the warrant to a police  officer within its jurisdiction for the execution of the warrant. Here, however, instead of directing the warrant to the police officer, the issuing court forwards it by post or otherwise, to any Executive Magistrate, District Superintendent of Police, or Commissioner of Police within the local limits of whose jurisdiction the search warrant is to be executed. Then the Executive Magistrate, District Superintendent, or Commissioner shall endorse their name thereon and, if practicable, cause it to be executed.

Warrant directed to a police officer for execution outside the issuing Court’s jurisdiction (Section 79 of the Code of Criminal Procedure)

There may be a scenario where the warrant is to be executed outside the local jurisdiction of the court issuing it, and such a warrant is directed to a police officer. In this case, it is the duty of the police officer to take the search warrant for endorsement from either: 

• An Executive Magistrate, or
• A police officer not below the rank of an officer in charge of a police station, within the local limits of whose jurisdiction the warrant is to be executed. 

Such a Magistrate or police officer shall endorse their name on the search warrant. This endorsement gives all-sufficient authority to the police officer to whom the warrant is directed to execute the same. With this, the executing police officer can call the local police to assist in the execution of the search warrant. 

However, this endorsement is not necessary if there is a reason to believe that it would cause a delay, and such a delay will prevent the execution of the search warrant. Here, the directed police officer has the right to execute the warrant without such endorsement in any place beyond the local jurisdiction of the court which issued it.

When the officer in charge of a police station may require another to issue a search warrant (Section 166 of the Code of Criminal Procedure)

There might be circumstances where the thing necessary for investigating an offence is in a place outside the limits of the investigating officer’s police station. In such cases, the officer in charge or an officer of the rank of sub-inspector or above of the original police station can get the search for such a thing conducted through the officer in charge of the police station under whose limit the thing to be searched is. 

The officer in charge of the latter police station has to conduct the search as mentioned in Section 165 of the Code of Criminal Procedure. On finding the requested thing, the officer has to forward the same to the officer who requested the search. 

When can an officer in charge or an investigating officer can search a place outside their police station’s limits

In case: 

• there is a delay due to the formalities of requesting another police station to conduct the search, and 
• that such a delay can lead to the destruction or concealment of the evidence, 

Then the officer in charge of the investigating officer can search any relevant place, even if it is outside their police station’s limit. This search has to be done while following the provisions of Section 165 of the Code of Criminal Procedure. 

Then, the officer in charge of the investigating officer has to send a notice of search and a copy of the list as per Section 100 of the Code of Criminal Procedure to: 

1. the Magistrate and 
2. the officer in charge of the police station under whose limit the search is conducted.

The owner or occupier of the place searched can obtain, for free, the copy of records sent to the Magistrate by making an application for the same.

Format of a search warrant

1. FORM NO.10 

WARRANT TO SEARCH AFTER INFORMATION OF A PARTICULAR OFFENCE 

To (name and designation of the police officer or other person or persons who is or are to execute the warrant). 

WHEREAS information has been laid (or complaint has been made) before me of the commission (or suspected commission) of the offence of (mention the offence concisely), and it has been made to appear to me that the production of (specify the thing clearly) is essential to the inquiry now being made (or about to be made) into the said offence (or suspected offence);

This is to authorise and require you to search for the said (the thing specified) in the (describe the house or place or part thereof to which the search is to be confined), and, if found, to produce the same forthwith before this Court, returning this warrant, with an endorsement certifying what you have done under it, immediately upon its execution. 

Dated, this ____ day of ____, 22 . 

(Seal of the Court) (Signature)

2. FORM NO.11 

WARRANT TO SEARCH SUSPECTED PLACE OF DEPOSIT 

To (name and designation of a police officer above the rank of a constable). 

WHEREAS information has been laid before me, and on due inquiry thereupon had, I have been led to believe that the (describe the house or other place) is used as a place for the deposit (or sale) of stolen property (or if for either of the other purposes expressed in the section, state the purpose in the words of the section); 

This is to authorise and require you to enter the said house (or other place) with such assistance as shall be required, and to use, if necessary, reasonable force for that purpose, and to search every part of the said house (or other place, or if the search is to be confined to a part, specify the part clearly), and to seize and take possession of any property (or documents, or stamps, or seals, or coins, or obscene objects, as the case may be) (add, when the case requires it) and also of any instruments and materials which you may reasonably believe to be kept for the manufacture forged documents, or counterfeit stamps, or false seals, or counterfeit coins or counterfeit currency notes (as the case may be), and forthwith to bring before this Court such of the said things as may be taken possession of, returning this warrant, with an endorsement certifying what you have done under it, immediately upon its execution. 

Dated, this ___ day of ___,22 . 

(Seal of the Court) (Signature)

Searching closed places

Section 100 of the Code of Criminal Procedure gives a detailed procedure to be followed in case the place to be searched is closed. Suppose a place which is to be searched under the search warrant is closed. In that case, the person residing or in-charge of the place shall allow entry and afford reasonable facilities for search on the production of the warrant and demand made by the officer or person executing the warrant.

In case the entry is not granted even after making notification of authority and purpose and demand of admittance, the person executing the warrant can lawfully enter the place by breaking any windows or door(s) of any place.  However, in case the occupant of the house is a female who does not appear in public as per the practice of custom like parda, then before entering the house, it is necessary to give such a female notice of liberty to withdraw from the place and also provide every reasonable facility for the withdrawal. After this, the person with an arrest warrant or the police officer can enter and break it open. 

If there is a reasonable suspicion that a person in the place to be searched (for example, the tenant living in the place to be searched) is hiding under/inside his/her/their body (hiding under clothes, mouth, or anywhere else in body) any article for which this search is conducted, then such a person can also be searched. In case such a person is a woman, then the search has to be conducted by another woman and with strict regard to decency. A list of all things taken possession of is to be prepared. This list’s copy is also to be given to the person searched.

Before conducting a search under this Chapter, the person conducting the search has to call two or more independent and respectable inhabitants of the locality. In case no inhabitant of the locality is ready or available to attend and witness the search, such inhabitants can be ordered in writing to do so. It is important for everyone to know that a refusal or neglect to attend and witness the search is an offence under Section 187 of the Indian Penal Code, as per the Code of Criminal Procedure.

The search of the place has to be made in the presence of the above-mentioned witness. The person making the search has to mandatorily make a list of all things seized in the course of such a search and of the places in which they are respectively found. This list is to be signed by the witnesses. Though they act as witnesses, they don’t have to attend the court as witnesses of the search unless specifically summoned by the court.

Though the Section talks about witnesses to the search, it does not mean that the occupant of the place cannot attend the search. Hence, the Section states: 

• The right of the occupant to attend or send someone else to attend on his behalf the search, and 
• The right to receive the copy of the above-mentioned signed list.

Search for a person who is to be arrested

It may be possible that a person who is to be legally arrested tries to evade the arrest by hiding out. In this scenario, it is important to refer to Section 47 of the Code of Criminal Procedure. Section 47 of the Code of Criminal Procedure discusses who can demand the search to be made and the procedure in case entry to such a place is not obtained.

Searching for a place can be demanded by: 

• A person acting under the arrest warrant, or 
• A police officer having the authority to arrest 

Who has reasons to believe that the person who is to be arrested: 

• Has entered the place, or
• Is within the place.

On such a demand, the person in charge or residing in such a place has to allow entry into the property and make all the reasonable facilities required for the search available. 

In case the entry to the place cannot be obtained as said above even after making notification of authority and purpose and demand of admittance, for example, the person in charge is absent or does not allow entry, then:

• A person acting under an arrest warrant, or
• A police officer who cannot obtain an arrest warrant without giving the person to be arrested the opportunity to escape,

Can enter and search the place, even if it means breaking any door or window of any house or place. The house or place can be the home of the person to be arrested, a person harbouring the person to be arrested, or a non-related party. 

It can also be inferred that in case the only way to access the place where the person to be arrested is through the neighbouring house’s window, it would be quite lawful for the police to break down the entrance door of the house to access the said window and also the said window, after making duly notification and demand to the house’s resident / in charge. 

However, in case the occupant of the house is a female who does not appear in public as per the practice of custom, then before entering the house, it is necessary to give such a female notice of liberty to withdraw from the place and also provide every reasonable facility for the withdrawal. After this, the person with an arrest warrant or the police officer can enter and break it open. 

The Section also provides that a person who lawfully entered a place to make an arrest is detained. A person, that is any other police officer or other person authorised to make an arrest, can break the door(s) or window(s) of any house or place to free the said person. For example, if a police officer enters a place to make an arrest of an accused but is locked in a room by the same accused, he can break the window in the room and escape. 

Search on the order of the investigating officer

Normally, in order to conduct a search, a search warrant issued by the Magistrate is required to be obtained. However, there may be circumstances of urgency to carry out the search as soon as possible. In this case, the investigating officer can order a legally valid search by following the procedure in Section 165 of the Code of Criminal Procedure.

The investigating officer can search or order a search for a thing which is necessary for the authorised investigation of an offence. To conduct this search, it is necessary that:

• The officer had reasonable grounds to believe that: 
  • Such a thing is necessary for the investigation, and 
  • Such a thing is in a place within the limits of the officer’s police station;
• In the investigating officer’s opinion, that thing cannot be obtained without undue delay;
• The officer has written about the grounds of his belief and that the thing to be searched is in a place within the limits of the officer’s police station. This written statement is to be forwarded to the Magistrate.

If it is practically possible, the search under this Section is to be conducted in the physical presence of the investigating officer.

In case of unavailability of the presence of the investigating officer or another competent officer at the time of the search, the investigating officer may delegate the search to a subordinate officer after writing a written statement of the reason for the unavailability. The subordinate officer is given a written order stating the specific place to be searched and the thing to be searched. After receiving the written order, the subordinate officer is then to conduct the search and record a written statement. This written statement and written order are to be forwarded to the Magistrate. 

The written records which are forwarded to the Magistrate shall also be made available to the owner or occupier of the place searched on an application made. Such a copy provided to the owner or occupier must be given free of cost and also be forwarded to the Magistrate.

Search of an arrested person

The search of an arrested person is governed under Section 51 of the Code of Criminal Procedure. There are two scenarios when a search is to be conducted.

1. When a person is arrested by a police officer under a warrant which: 

• does not provide for the taking of bail, or 
• provides for the taking of bail, but the person arrested cannot furnish bail, 

2. When a person is arrested: 

• without a warrant, or 
• by a private person under a warrant, and 
  • cannot legally be admitted to bail, or 
  • is unable to furnish bail, 

Then the police officer: 

• Making the arrest or, 
• To whom the arrested person is handed over, 

Can search the arrested person and place in safe custody all found articles, other than necessary wearing apparel. Suppose an article is seized from the arrested person. In that case, a receipt showing the articles taken in possession by the police officer has to be given to such a person. 

If a female is to be searched, then this search is to be conducted by another female with strict regard to decency.

Production of document

A document, in a general understanding, is a piece of information on paper. However, this understanding is not adopted in the legal system. India’s legal system has ascribed a definition to “document” under Section 3(18) of the General Clauses Act. Hence, in legal use, a document is any information written, described, or expressed upon any substance (such as paper) by using one or more of the following means: letters, figures, or marks. The purpose of making a document must be to record the said information. Hence, marks on a tree, electronic mail, etc., have been legally recognised as documents.

Coming to the relevance of documents, most of the acts in this world are contained in or have some relevant information regarding them in documents. The documents might also form the subject matter of the crime (for example, a fabricated document is the subject matter of the offence of fabricating false evidence) or can be used as evidence. 

For the sake of throwing some light on the proceedings or establishing some link in evidence, the police or the Court has the power to compel the production of documents which have some relation or connection to the charge against the accused. The intent behind the Section is to aid in the collection of evidence. 

Summon or Order to produce

Section 91 of the Code of Criminal Procedure governs the provisions regarding a summon for producing documents and other things. The Code empowers an officer in charge or any Court of law to order the production of any document or thing to order the production of any document or thing. A written order by the officer in charge or a summon by a court is to be issued to the person possessing or having power over the required document or thing. The person would be ordered to produce it at the time and place mentioned. 

The provision would be deemed to be complied with if the person caused the document or thing to be produced. It is not necessary to personally attend and produce them. For example, sending documents through another person is deemed to be production. 

However, in regards to the production of any document, parcel or thing in the custody of a postal or telegraph authority, a summon or order cannot be issued under this Section. In this case, Section 92 of the Code of Criminal Procedure is to be followed. 

Section 123 and Section 124 of the Evidence Act are exceptions to Section 91 of the Code of Criminal Procedure. Hence, unpublished official records relating to any affairs of the State and official communications have immunity against the summon or the order to produce. 

Production of document, parcel or thing in the custody of a postal or telegraph authority

Section 92 of the Code of Criminal Procedure states that, If any document, parcel or thing in the custody of a postal or telegraph authority is wanted for investigation, then the:

• District Magistrate,
• Chief Judicial Magistrate,
• Sessions Court, or
• High Court,

May direct the postal or telegraph authority to deliver such document, parcel, or thing to such person as directed.

Police Report

When the police complete their investigation of a particular case, they need to make a report stating every important prescribed detail. This police report is called the “End Report.”  

Investigation report by a subordinate police officer to the officer in charge

As per Section 168 of the Code of Criminal Procedure, the investigating officer has to report the result of the carried-out investigation to the officer in charge of the police station. 

Police / Final report to the Magistrate

Section 173 of the Code of Criminal Procedure governs everything about the police report sent to the Magistrate. A police report, as per Section 2(r) of the Code of Criminal Procedure, is the report forwarded by a police officer to the Magistrate under Section 173(2) of the Code of Criminal Procedure. This report is also called the “final report” as it is the final report that a police officer sends after the completion of the investigation. It is a statutory obligation of the police officer to complete every investigation and send the final report to the Magistrate without unnecessary delay. It is also expressly said that the investigation in relation to the rape of a child may be completed within 3 months from the information recording date. 

Format of the report 

As soon as the investigation is completed, the officer in charge has to forward to the Magistrate a report in the State Government’s prescribed form, stating –

• Name of the parties;
• The nature of the information;
• The names of the persons who appear to be acquainted with the circumstances of the case;
• Whether any offence appears to have been committed and, if so, by whom;
• The status of the arrest of the accused;
• Whether the arrested person has been released on his bond and, if so, whether with or without sureties;
• Whether the arrested person has been forwarded in custody to the Magistrate on the grounds of sufficient evidence against the accused (Section 170 of the Code of Criminal Procedure);
• Whether the report of medical examination of the victim has been attached where investigation relates to an offence of 
  • Rape,
  • Rape causing death or resulting in a persistent vegetative state of the victim, 
  • Sexual intercourse forced by the husband upon his wife during separation, 
  • Rape done by a person in authority, 
  • Gang rape, or
  • Repeated offenders of rape.

Accused released on bail

Suppose the investigation report states the release of the accused on bond. In that case, the Magistrate has to make an order for the discharge of such bond or any other appropriate order.

Additional documents are to be forwarded to the Magistrate in the event of Section 170 of the Code of Criminal Procedure

When a report is regarding a case where the accused is forwarded to the Magistrate under Section 170 of the Code of Criminal Procedure based on the sufficiency of the evidence, the police officer shall forward to the Magistrate the below-mentioned documents along with the investigation report:

• The documents or relevant extracts the prosecution proposes to rely on, other than those already sent to the Magistrate during an investigation (for example, handwriting expert’s report, post-mortem reports, etc.); 
• The prosecution’s proposed witnesses’ statements as recorded by the police under Section 161 of the Code of Criminal Procedure.

The investigating police officer may provide the accused the copies of the above-mentioned documents if the officer finds it convenient to do so.

Extracts to be excluded from the copies of the investigation report

A police officer may request the Magistrate to exclude certain parts of the original report from the copies which are to be given to the accused. The police officer has to provide the reasons behind this request on an attached note indicating the part(s) which are to be excluded. The officer may do so if, according to the officer, such part of the report: 

• is not relevant to the subject matter of the proceedings, or
• That its disclosure: 
  • is not essential in the interests of justice, and
  • is not advised in view of the public interest.

Supplementary report on further investigation

Forwarding the investigation report does not make the performance of future investigations impossible. Suppose the officer in charge of the police station obtains further evidence, oral or documentary. In that case, the officer has to forward a further report or reports regarding such evidence to the Magistrate. 

Provisions applicable to the original report regarding: 

• Format of the report,
• Exclusion of extracts from copies, 
• Additional documents to be forwarded to the Magistrate under Section 170 of the Code of Criminal Procedure, and 
• Order on accused released on bail

Also apply to additional investigation reports in the same manner. 

The superior officer appointed under Section 158 of the Code of Criminal Procedure

Wherever a superior officer is appointed under Section 158 of the Code of Criminal Procedure, the final report to the Magistrate must be sent through the superior officer. The superior officer is also given the power to direct further investigation, under Section 173 of the Code of Criminal Procedure, in case the order from the Magistrate is pending. 

Communication to the informant 

As per Section 173 of the Code of Criminal Procedure, the investigating officer has the duty to communicate the actions taken by the officer to the informant of the commission of the offence. This manner of communication is to be carried out as per the manner prescribed by the State Government.

Cases to be sent to Magistrate, when evidence is sufficient

When the police officer is of the opinion that there is enough evidence for the prosecution of the accused for the crime, the police officer has to follow the procedure mentioned in Section 170 of the Code of Criminal Procedure. In this case, there are sufficient or reasonable justifying grounds for the police officer to forward the accused to the Magistrate. Hence, the police officer will then:

• Forward the accused to the custody of a Magistrate who has the power to take cognizance of the offence upon charge sheet, or
• If the offence is bailable and the accused can give security, the officer will take security from the accused about appearance before the Magistrate on a fixed date and security on attendance from time to time, unless otherwise instructed. 
• The officer must send to the Magistrate any weapon or article which may be necessary to be produced. 
• The police officer may also require the complainant and other persons who are acquainted with the facts or circumstances of the case to execute a bond to appear before the Magistrate or give evidence as the case may be.
• The police officer has to send copies of the executed bonds to the executing parties and forward the original bond to the Magistrate along with the investigation report.

Chargesheet or Challan

When an accused is forwarded to a Magistrate (who has the power to take cognizance of the offence), the investigating officer also sends along a police report known as the “charge sheet”. This charge sheet is a kind of final report under Section 173(2) of the Code of Criminal Procedure. When a final report talks about the commission or attempt of a crime, such a final report is termed a “charge sheet” or “challan”. The format of the charge sheet is the same as that of the final report. 

A charge sheet is the report made by the police officer when the officer is of the opinion that the accused has committed an offence under Indian penal law. This chargesheet is made by the police officer after making due investigation into the matter. Filling the charge sheet with the Magistrate is the act of commencing criminal proceedings against the accused.

Course open to the Magistrate

After receiving the charge sheet, the Magistrate has the following courses open to take:

• Disagree with the report and drop the proceeding,
• Accept the report and take cognizance of the basis of the report/material submitted by the investigation officer, or
• Direct further investigation under Section 156(3) and require police to make a report as per Section 173(8) of the Code.

Release of accused when evidence is insufficient

As per Section 169 of the Code of Criminal Procedure, if the investigating officer finds no sufficient or reasonable grounds to forward the accused to the Magistrate, then:

• The accused is to be released from custody,
• The release must be done by executing a bond,
• The accused may be directed to appear before the Magistrate whenever required.

Closure report

Though a “closure report” is not defined in the Code of Criminal Procedure, it is used to describe the report sent by the police to the Magistrate under Section 169 of the Code of Criminal Procedure. A closure report is sent after the completion of the investigation. This report is made when there is a lack of sufficient evidence. When the officer in charge of the police station finds no sufficient evidence or reasonable grounds to send the accused to trial, a closure report is made to the Magistrate. On making the closure report, the officer in charge has to release the accused if in custody. This is done by executing a bond for release with or without sureties and to appear before the Magistrate if and when required. For this release, the officer in charge does not need to take permission from the Magistrate.

Jurisdiction of the investigating officer

The jurisdiction of the investigating officer with respect to the closure report is so protected that even the High Court cannot order the investigating officer to take back the closure report and submit a charge sheet. In the case of R. Sarala v. T.S. Velu (2000), wherein the Madras High Court ordered the investigating officer to replace the closure report with an amended charge sheet, the Supreme Court of India set aside the High Court’s order on the grounds of interference with the exclusive jurisdiction of the investigating officer.

Even if the Court cannot interfere with the jurisdiction of the closure report, the opinion of the closure report is not binding on them. The Magistrate has to form their opinion after reading the closure report and the facts of the case. Then the Magistrate comes to a decision of either acceptance or rejection of the closure report. 

Courses open to the Magistrate after receipt of closure report

After receiving the closure report, the Magistrate may either:

• Accept the closure report and close the proceedings, or
• Reject the closure report and 
  • Give directions for further investigation under Section 156 of the Code of Criminal Procedure. This course should not be taken arbitrarily and must be done based on valid reasons, or
  • Reject the closure report and take cognizance of the matter under Section 190(1)(b) of the Code of Criminal Procedure. This is done when the Magistrate is of the mind that the facts set out in the closure report (submitted initially or after re-investigation) constitute an offence (Lakshman Jena v. Sudhakar Patlasingh, (1968).

Inquest report

When a suicide happens, the procedure the police have to follow is different from those followed in other offences. Suicide is not an offence, but there are many instances of an offender making their victim’s death seem like a suicide. Hence, a police investigation is of utmost importance to rule out foul play. Police are also the most competent in dealing with a case of suicide compared to other agencies. Since suicide is a special circumstance, the way of dealing with it is also separately given in Section 174 of the Code of Criminal Procedure.

When information about:

• A person’s suicide,
• A person’s death due to another person, an animal, machinery or an accident, or 
• A person’s death under the circumstances raising a reasonable suspicion that some other person has committed an offence,

Is received by: 

• the officer in charge of a police station, or 
• some other police officer specially empowered, by the State Government, to receive such information.

Then the officer has to perform the following duties in this scenario, that is to: 

1. Immediately inform the nearest Executive Magistrate empowered to hold inquests (inquiry on the case) with such information.
2. The officer has to proceed to the place where the body of the deceased person is and hold an inquest there. However, this is only where there is an absence of an order to the contrary. That is if there is: 
   1. A prescribed rule by the State Government, or
   2. A general or special order of the District Magistrate or Sub-divisional Magistrate,

Which orders and directs the police officer that the officer is not to go to the spot and hold an inquest there, then the police officer has no choice but to follow this order.

3. If the police officer has the power to hold an inquest, then, upon reaching the place, the officer has to: 

• make an investigation, 
• draw up a report of the apparent cause of death which describes and state: 
  • the wounds, fractures, bruises, and other marks of injury found on the body, and 
  • The manner, or the weapon or instrument due to which such marks appear to have been inflicted.

This report made by the officer about the apparent cause of death is known as the ‘inquest report’. 

4. The investigation and drawing of the report have to be done in the presence of two or more respectable inhabitants of the neighbourhood.
5. The inquest report has to be signed and immediately forwarded to the District Magistrate or the Sub-divisional Magistrate. 

The common view would be that, alongside the making of the inquest report, the next obvious and natural duty of the police officer would be to send the body for medical examination here. But, the Code of Criminal Procedure has not incorporated this view. The Code of Criminal Procedure has made this a duty only when the case is of suicide by a woman in certain circumstances (given below). Hence, in any other case, the act to send the body for medical examination is at the discretion of the police officer. Though this is discretional, it is a discretion which has to be exercised prudently and honestly (Kodali Puranchandra Rai v. the Public Prosecutor, Andhra Pradesh, 1975) 

Scope of inquest report

• It ascertains whether a person had died under doubtful or unnatural circumstances, and if so, what was the apparent cause of the death.
• Questions regarding the details as to how the deceased was assaulted, who assaulted him, or under what circumstances he was assaulted are beyond the scope of the inquest report.
• It is neither necessary nor obligatory on the part of the Investigating Officer to investigate into or ascertain at that stage who were the persons responsible for the death.
• The object of the inquest report is only to notice whether the death was homicidal in nature or not.
• It is not necessary for the inquest report to contain the names of the accused and witnesses.

Forwarding the body in specific cases

When the case involves: 

• Suicide by a woman within seven years of her marriage;
• The death of a woman within seven years of her marriage in the circumstances raising a reasonable suspicion that some other person has committed an offence in relation to such woman; 
• The death of a woman within seven years of her marriage and any relative of the woman has made a request on this behalf; 
• Any doubt regarding the cause of death;
• The police officer, for any other reason, considers it expedient so to do, 

The police officer shall, subject to the prescribed State Government rules, forward the body to the: 

• Nearest Civil Surgeon, or 
• Other qualified medical person appointed on this behalf by the State Government,

To have the body examined by them. If there is a risk of decaying of the body owing to the state of the weather and the distance and that this would render the examination of the body useless, the obligation of the police officer to send the body is waived off. 

Magistrate

The Magistrate’s involvement in cases requiring an inquest report can be seen in the Code by the procedure of holding an inquest, recording evidence, examining the buried body, and informing the deceased’s relative about the inquest.

Magistrate to hold inquests

Under Section 176 of the Code of Criminal Procedure, a Magistrate is empowered to hold inquests in cases such as suicide, unnatural death, and other circumstantial deaths, as mentioned in Section 174(1), Section 174(3)(i), and Section 174(3)(ii) of the Code of Criminal Procedure. This inquest can be held either in place of or in addition to the police investigation under Section 174 of the Code of Criminal Procedure. 

For Section 176 of the Code of Criminal Procedure, the following Magistrates are empowered to hold inquests:

• District Magistrate,
• Sub-divisional Magistrate, and 
• Any Executive Magistrate who is specially empowered by: 
  • the State Government, or 
  • the District Magistrate.

Recording of evidence

The Magistrate holding the inquiry under Section 176 of the Code of Criminal Procedure also has to record the evidence found during the inquest inquiry.

Examination of the buried dead body

Suppose such Magistrate considers it expedient to examine the buried dead body to discover the cause of death. In that case, the Magistrate may cause the body to be unburied and examined. 

Informing the deceased’s family

When the Magistrate holds an inquiry under this section, the Magistrate shall inform the deceased’s relatives and allow them to remain present at the inquiry, if practicably possible. The relative here means parents, children, brothers, sisters, and spouse of the deceased whose names and addresses are known.

Custodial death, custodial disappearance or custodial rape

When a custodial rape, custodial death, or disappearance in custody happens under police custody / judicial custody ordered under the Code of Criminal Procedure, then the Judicial Magistrate or the Metropolitan Magistrate, within whose local jurisdiction the offence has been committed, has to conduct an inquiry on such offence.

Medical examination

The Judicial Magistrate or the Metropolitan Magistrate or Executive Magistrate or police officer holding an inquiry or investigation on the case of death, rape or disappearance in custody has to forward the victim’s body for medical examination within twenty-four hours of the death. The body is to be forwarded to the nearest Civil Surgeon or other State Government appointed qualified medical person. This is an important procedure which has to be executed by the Magistrate. In case the execution of this procedure is not possible, then the reasons for impossibility are to be recorded in writing.

Complaint to Judicial Magistrate

As per Section 2(d) of the Code of Criminal Procedure, a complaint is any allegation about a person committing an offence. This allegation is made either orally or in writing and addressed to the Magistrate. The reason for approaching the Magistrate is so that the Magistrate takes some action under the Code of Criminal Procedure based on the complaint. A complaint is another method to start a criminal investigation. It can also be used when the police do not register or take no action on a first information report / non-cognizable report.

It is not necessary that a complaint can be made only when the complainant knows who has committed the offence. Hence, even an allegation about committing an offence by an unknown complaint is a complaint. In reference to Section 190 of the Code of Criminal Procedure, a Magistrate can take notice and proceed with some action in regards to any offence based on the complaint received. 

Courses available on receipt of the complaint

Upon the receipt of a complaint, the Magistrate has the below-mentioned courses available to take:

1. The Magistrate can take cognizance of the complaint under section 190 of the code of criminal procedure.
2. The Magistrate can order a police investigation under section 156(3).
3. The Magistrate can dismiss the complaint.

Cognizance by the Magistrate

Though cognizance is not defined by the Code of Criminal Procedure, in legal terminology, it means to take a ‘judicial notice of an offence’. Herein, the Magistrate has to take cognizance of the matter before proceeding with the steps for trial. Taking cognizance means applying a judicial mind. The magistrate applies his mind to the suspected offence for the sake of taking subsequent steps under the code of criminal procedure. It can be understood as examining whether an offence has been committed or not under the sections of the Indian penal code or any other special law. It also includes the intention of commencing a judicial proceeding or seeing whether there is a basis for starting the judicial proceeding. 

Under Section 190 of the Code of Criminal Procedure, a magistrate can take cognizance of any offence based on: 

1. A complaint, 
2. A police report, 
3. Any information received, or 
4. The knowledge possessed by the magistrate.

Examination of complainant and witnesses

Examination of a complaint received by a Magistrate is governed under Section 200 of the Code of Criminal Procedure. After taking cognizance of the complaint under Section 190 of the Code of Criminal Procedure, the Magistrate shall examine the complainant and the witnesses present on oath. The examination must be reduced in writing and signed by the complainant, the witnesses, and the Magistrate. The object of the examination is to verify whether there is a case against the accused “on a first impression.”  

However, after taking cognizance and conducting the examination, the Magistrate can dismiss the complaint if there is no sufficient ground for proceeding. 

When the complainant and witnesses need not be examined

The Magistrate does not need to examine the complainant and the witnesses, if:

• The complaint is in writing, and
• A public servant acting or purporting to act in the discharge of official duties or a Court has made the complaint; or 
• The Magistrate makes over the case for inquiry or trial to another Magistrate under section 192. Additionally, if the Magistrate herein takes over the case after examining the complainant and witnesses, the latter Magistrate doesn’t need to re-examine them.

Investigating officer’s diary

The investigating officer has the responsibility of maintaining a diary containing proceedings in an investigation under Section 172 of the Code of Criminal Procedure. This obligation is imposed so as to enable the Court to check the method of investigation of the police. This provision, however, is not applicable to suicide investigations under Section 174 of the Code of Criminal Procedure.

Content

The investigating officer has to record in the diary the following contents:

• The time at which – 
  • the information reached him, 
  • the investigation began, and
  • the investigation was closed;
• The place(s) visited; 
• A statement of circumstances ascertained during the investigation; and
• The statement of a witness recorded during examination under Section 161.

Form

The investigating diary should:

• Have reasonable volume (Section 172),
• Have duly filled number of pages (Section 172),
• Made with promptness (Bhagwant Singh v. Commissioner, 1983),
• Have sufficient detail (Bhagwant Singh v. Commissioner),
• Mention all sufficient facts (Bhagwant Singh v. Commissioner),
• Be in chronological order (Bhagwant Singh v. Commissioner),
• Made with complete objectivity (Bhagwant Singh v. Commissioner).

Purpose

The purpose behind the provisioning of a diary by the investigating officer is to assist in the vindication of the law as well as to protect those charged with an offence. This intent is visible behind the act of maintaining the investigating officer’s diary as a case diary and the power of the Criminal Courts to call for this diary. 

A very important case law to be highlighted here is Khatri v. State of Bihar (1981). The power of the Court to call for the diary is so that the Magistrate has the means of ascertaining the information which was obtained day-to-day by the police officer who was investigating the case and the lines upon which such a police officer acted. Hence, the investigating officer’s diary is used as an aid in inquiry or trial by the Criminal Courts. But, this does not give the accused or the accused’s agents the right to call for or see the investigating officer’s diaries. But, if the investigating officer’s diary is used by the police officer for refreshing memory, or if the Court uses them for the purpose of contradicting such a police officer, the provisions of Section 161 or Section 145, as the case may be, of the Indian Evidence Act, 1872 (1 of 1872), shall apply.

Conclusion

Though the law exists to protect us, it is important to know what the law actually says. The Code of Criminal Procedure is a well-balanced act that synergies the needs of an investigation and the rights of the suspects. There exists a provision which gives the police officer the right to leap over some formalities owing to the time sensitiveness of an investigation. But there are also provisions, such as unauthorised police detention not exceeding 24 hours, which put forth a person’s rights and liberty before the progress of the investigation. While the Code of Criminal Procedure can be said to be a well measured act, victim friendly provisions are still lacking. A criminal investigation can turn hostile towards a victim or be insensitive to their trauma. Even if there are some victim-friendly procedures, such as recording at a female victim’s place of convenience, the effect of these procedures is reduced owing to the lack of a sensitivity training program in place for the officers. It would be much awaited to see the Code enacting provisions which are incorporating the issues and sensitivity of the victims and are victim-friendly.

Frequently Asked Questions (FAQ)

When does an investigation start?

An investigation starts when the police officer takes some material steps in pursuance to the information or material received, for example – proceeding to the spot, taking measures to investigate the facts and circumstances of the case, taking measures towards discovery and arrest of the offender, etc. 

What are the remedies available when police arbitrarily refuse to investigate?

There are three remedies available in the following situation:

• If the police improperly use the proviso to Section 157 of the Code of Criminal Procedure and take refuge under it for refusal to investigate the case, the informant can move to the Magistrate under Section 159 of the Code of Criminal Procedure.
• A writ of mandamus can be filed before the High Court to direct the police to act as per law, in case such refusal is with the wrong intention.
• A complaint may be filed under Section 190(1) of the Code of Criminal Procedure. In such a case, if the complainant’s case was otherwise proved and the conduct of the Police was not satisfactory, no importance should be given to the fact that Police were not satisfied with the complainant’s case.

Who can execute an arrest warrant?

An arrest warrant can be executed by the person to whom it is directed by the Court. The Courts direct an arrest warrant to police officers. But, the Court can direct the arrest warrant to any other person, such as Court officers, private persons, etc, if:

• There is an urgency of arrest and unavailability of police officers, or
• A Chief Judicial or first-class Magistrate issues it against an escaped convict, proclaimed offender, or person accused of a non-bailable offence.

References 

• https://blog.ipleaders.in/procedure-police-report-completion-investigation-crpc-1973/
• https://districts.ecourts.gov.in/sites/default/files/D%20Nageswara%20Rao%2C%20Prl%20JCJ%20Manthani.pdf
• https://districts.ecourts.gov.in/sites/default/files/schdule2compressed.pdf
• DD Basu: Code of Criminal Procedure
• Ratanlal & Dhirajlal: Code of Criminal Procedure

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