This article is written by Shivangi Tiwari, a second-year student pursuing B.A. LL.B. from Hidayatullah National Law University, Raipur. This is an exhaustive article dealing with Investigation by Police.
In India, the first step towards criminal proceeding is an investigation by the police. The investigation is the exclusive domain of the police and can not be curtailed in normal circumstances. The main purpose of an investigation is the identification of the offender so as to serve him with punishment for the crime done by him in accordance with the provisions contained under law. According to Section 156 of the Code of Criminal Procedure, the police have unfettered powers to investigate into a cognizable offence. The term cognizable offence is any act or omission committed by a person under any law in force which is punishable and is considered to be a crime. The police have the authority to arrest any person who has committed a cognizable offence. Beside Criminal investigation, there are other types of investigations which become the part of the life of an investigator. Some of the types of investigation are as follows:
- Civil investigation: These are the investigations which are carried on during the civil suits in which violation of law is generally not included and the question of money or property is to be settled;
- Negligence investigation: These types of investigations are conducted either by the plaintiff’s counsel to prove the liability of the defendant or by the defendant’s attorney to refute the claims of the plaintiff. It is accomplished by the use of surveillance, interviewing the witnesses;
- Corporate investigation: In Corporate investigations the investigator monitors the business of the company and also provides the information about the fraud within or outside the company;
- General investigation: It is like an umbrella term including a great variety of investigative activities. These activities may be conducted for different purposes like the determination of the location of witnesses, dishonest employees, fraud etc.
Meaning and steps of investigation
The proceedings initiated by police in order to collect all the information related to the crime which has been reported to the police is known as investigation. The process of investigation enables the police to identify the perpetrator, to arrest him and to gather all the material evidence essential for the prosecution of the accused. The two important steps in the process of investigation are as follows:
- To discover and arrest the suspect;
- To search and seize all the material evidence essential for the trial before the court of law.
The process of investigation presides the determination of guilt and the imposition of a fine by the court of law upon the guilty based upon the arguments, evidences and witnesses presented before the court. The power of police to investigate a cognizable case and the procedure to be followed thereof has been given under Section 154 and Section 174 of the Code of Criminal Procedure. At the different stages of the investigation, three types of reports are required to be prepared by the police. The three reports mentioned under the Code of Criminal Procedure are as follows:
- According to Section 157 of the Code of Criminal Procedure, the officer in charge of the police station is required to submit a preliminary report to the Magistrate;
- According to Section 168 of the Code of Criminal Procedure, a subordinate officer is required to submit a report to the officer in charge;
- According to Section 173 of the Code of Criminal Procedure, a final report is required to be submitted to the Magistrate as soon as the investigation gets over.
The different steps involved in the process of investigation are as follows:
- Information about the crime scene to the police;
- Deployment of the police to the crime scene;
- Ascertainment of facts and circumstances related to the crime by the police;
- Search and arrest of the perpetrator;
- Collection of the evidence which are material to the process of investigation and trial and their examination;
- Preparation of the sketch of the crime scene with the help of the minutest information available with the police;
- The decision of whether the accused shall be taken in front of the magistrate.
Powers of police to investigate
The police have the power to make an investigation upon the fulfilment of any of the following conditions:
- When FIR has been registered under Section 154 of the Code of Criminal Procedure. Section 154 provides that any complaint made of any cognizable offence before the officer in charge of the police station, then it would be binding upon the police officer to register the complaint thereof on the basis of the information so received and no consideration regarding the credibility and genuineness of the information so received shall be made;
- Where the police officer under Section 156(1) and 157(1) of the Code of Criminal Procedure has a reason to suspect the happening of any cognizable offence;
- Where under Section 156(3) of the Code of Criminal Procedure, the Magistrate orders the police to register a case without taking its cognizance under Section 200 of the Code of Criminal Procedure;
- After taking cognizance of the complaint made about the happening of an offence decision regarding the initiation of the process of an investigation against the accused is made under Section 202(1) and 203 of the Code of Criminal Procedure.
Authority given to private investigating agencies to investigate
Private investigating agencies conduct private investigations and enquiry in matters related to family disputes, insurance, and crimes. The private investigation agencies are legal in India. However, presently there is no such law to regulate the working of these agencies and they are free to carry on their functions anywhere in the country without any restrictions imposed upon their working. The Parliament in the year 2007 introduced The Private Detective Regulation Bill, 2007 with a view to regulate the working of the private investigating agencies and to prevent them from getting involved into illegal acts like Naxalism, terrorism, etc. but the bill is still pending before the Parliament.
The private detective agencies function through the private detective hired by them. The work of private investigating agencies can be classified into two categories which are as follows:
- Private investigation: Private detective agencies conduct investigations for private individuals. However, unlike the police, these agencies do not have the authority to make an arrest of the offenders. These agencies use highly advanced technological instruments to carry on the investigation. These instruments include private investigation software, spy cameras, GPS devices, microphones, hidden cameras, etc.;
- Private securities: In India, no prior training is provided to private securities. The private securities usually deal with matters involving marital disputes, pre and post-employment issues, kidnapping, monitoring the activities of children.
Important roles and duties of police
The most important role of a police officer is the enforcement of law and order in the society which is ensured by the police by patrolling in his or her jurisdiction and identification of the situations where law and order are put to stake. Every society requires a healthy functioning police institution to ensure the protection of life, liberty and property of the people of the society. There are different other duties and roles of police some of them are listed below:
- Training: Police officers are required to be physically, mentally and emotionally fit because it is the demand of their job. To imbibe such fitness, the police officers are subjected to rigorous training. The main aim of the training is also to enhance their endurance and intellectual capacity. A person undergoing training is also provided with driving and first aid training in order to make them always ready for any unforeseen situation that might come their way. They are also required to be polite and respectful towards the other members of society and remain calm during stressful situations.
- Standard of conduct: Police officers hold a position of honour and authority and are therefore required to deal sensitively with the people who come to them to seek help. Therefore, it is the utmost duty of the police officers to be sensitized about the needs of the people who are in distress and seek their help.
- Initiation of criminal charges: The criminal proceedings are started by the police in two ways that is either by giving appearance notice to the offender or by arresting the offender.
- To maintain internal security: Police aims at the preservation of the environment of peace and calm in the society by preventing and controlling the activities which are detrimental to the interest of the society such activities include terrorism, Naxalism illegal hartals and demonstrations, etc.
- Registration of the complaint: It is the utmost duty of the police to register all the complaints brought to it by the complainant and investigate all the cognizable offences which come up for registration.
Information to the police as to cognizable cases
Section 154 of the Code of Criminal Procedure contains provisions requiring the registration of every information relating to the commission of offense which is informed to the police. The section mandates that every information pertaining to the cognizable offence should be noted down in writing by the police officer in charge or by any other person under his direction. All such information which is written down should be read out and be signed by the person giving the information to the police. The information which is thus reduced to writing is known as First information and the report so produced is called first information report or FIR, although, the term first information report has not been mentioned anywhere in the Code, keeping in view the information recorded under the Section, the term is used in common parlance.
The main objective of the First Information Report or FIR is to bring the Criminal law in force and to start the investigation procedure in the case. FIR also acts as important corroborative evidence in the criminal trial. The reason for emphasising the instant lodging of the FIR is to obtain the prior information about the circumstances under which the crime was committed, the information about the culprits, the role played by them and the name of the eye witness is on record.
FIR is the information received by the police in the initial stage of the commission of the crime and therefore it cannot be used as substantive evidence but can only act as corroborative evidence to corroborate the information imparted by the person filing the FIR. But when the validity of the case is decided by the court, the court has to take into consideration, the other factors related to the case.
The first proviso attached to Section 154 states that where any information about the specified offences is given by a woman, then the information must be registered by a woman police officer. The second proviso attached with the Section reads that where any wrong is committed against any person who is mentally or physically unfit, then it is required that such information must be registered by the police officer at the residence of such person or any other place which shall be convenient for him and during the registration process, the presence of an inter or an educator is mandatory.
Registration of FIR
The object of the First Information from the point of view of the complainant is to set the criminal law in motion and is like the first step taken towards obtaining justice. Whereas from the point of view of the investigating authorities, the importance of the First Information lies in the fact that it is the first instance which sets in motion the investing agencies for carrying out the process of investigation and tracing the evidence which is conducive for a fair trial and also to bring and book the offender.
In Tulsiram v. State of Madhya Pradesh, the question which was raised in the case was whether the police using its discretion not to register FIR of the case based on the preliminary investigation conducted by them. In the present case, the police denied registering the FIR of the accused. Aggrieved by the denial of the police to register the case, the petitioner filed a writ of mandamus in the court of law so as to command the respondents to obey the law and file the FIR. The contention presented by the respondents was that they denied the filling of the complaint because of the reason that they had already conducted a preliminary enquiry and found the complaint to be a false one. However, the court rejected the contention on two grounds which are as follows:
- The inquiry which the police conducted was not substantiated by a valid justification;
- The non-registration of the complaint violated the principles of natural justice, which was uncalled for.
In Munna Lal V. State Of Himachal Pradesh, the petitioner’s eldest son was married to the daughter of one Sham Lal, one day the petitioner’s son was found dead in suspicious condition. The day before the dead body of the petitioner’s son was found, Sham Lal came to petitioner’s house to take his son to a dispensary. Sham lal refused his daughter to accompany her husband (petitioner’s son) and also refused her to pack food for the journey. The facts of the case also revealed that Sham Lal was against the marriage between his daughter and the petitioner’s son. The police, in this case, had refused to file the FIR report and contended that they had already carried on a preliminary enquiry in which it was held that the death of the petitioner’s son was due to the exposure in extreme cold and because of heavy consumption of alcohol.
Essentials of FIR
The essentials of an FIR are listed below:
- FIR has to be first with respect to the point of time;
- FIR must be informative and should not be based on gossip, vague facts or any hearsay witness;
- FIR must be registered by the officer in charge of the police;
- FIR must be about the cognizable offences;
- FIR must be in writing or should be reduced to writing if it is given in the oral form and read out to the person who is filing the complaint;
- FIR should be mandatorily signed by the informant;
- FIR must be entered into the daily diary maintained by the police;
- Under Section 154 of the Code of Criminal Procedure, mere gossip, hearsay evidence or rumours cannot become FIR and the evidence which is required is a definitive piece of information.
Evidentiary value of FIR
The evidentiary value of FIR is very high during the cognizance of an offence or at the time of initiation of investigation about the information furnished under Section 154 and 155 of CrPC. however, FIR cannot be regarded as a substantive piece of evidence and can be regarded only as an important piece of corroborative evidence.
During the process of cognizance of any offence or at the time of initiation of investigation about information recorded under Section 154 and 155 of CrPC, the evidentiary value of FIR is very high. However, it is an established principle of law that FIR can not be regarded as a substantive piece of evidence and can only be treated as an important piece of evidence.
In Pandurang Chandrakant Mhatre v. State of Maharashtra, the court held that FIR can not be treated as a source of substantive law and it can be used only to question the dispositions made by the person who files the FIR and it can not be used to discredit or question the trustworthiness of the testimony made by the other witnesses.
The reasons for the FIR not having any substantive value are as follows:
- The statements made under the FIR are not accompanied by an oath;
- The statements which are made under FIR are not made during the trial or proceedings before the court;
- The statements under FIR are not subjected to the cross-examination by the court at the time of filling it;
- The statements under the FIR made before the police do not have admissibility in a court of law.
The reasons for treating FIR as an important piece of evidence are as follows:
- To corroborate the evidence made by the person who has filed the FIR;
- To cross-examine the statements made by the person under FIR;
- To refresh the informer’s memory;
- To challenge the creditworthiness of the statements made by the informer;
- To ascertain the general facts like the identity of the accused, time of offences, etc.
There are certain exceptions where the FIR is used as a substantive piece of evidence. The exceptional situations include the situation in which the FIR is used to corroborate or contradict the statements made by the informant. Section 145 of the Indian Evidence Act permits the cross-examination of the statement made by the informant in order to challenge his assertions. Under Section 153(2) of the Indian Evidence Act, the informer can be asked any question for the purposes of defeating his claims and the oral statements made by him under FIR. The main objective of Section 145 of the Indian Evidence Act is two-fold, firstly, to cross-examine the previous statement made by the informer and secondly to contradict the claims made by him in the court of law by proving the contradictory claims furnished by him.
In Ram Chandra v. State of Haryana, the Supreme Court held that the information recorded under FIR can be used to corroborate and contradict the facts stated by the informer.
Information to the police as to non-cognizable cases
Section 155 of the Code of Criminal Procedure deals with information in case of non-cognizable offences and the way investigation has to be carried on in these cases. According to the provisions of this Section, all the information which is received by the police under Section 155 must be recorded by the police in such books as may be prescribed by the State Government under which the police station falls. Section 155(2) of the Code mandates that the investigations related to the non-cognizable offences can not be started by the police without the prior permission of the Magistrate who has the power to investigate these cases. A police officer can start the investigation of the case as soon as he receives the permission from the Magistrate and when the police acquire the permission it has the power to investigate the case in the same way as he has in the matters of cognizable offences. However, the police do not possess the power to arrest any person in cases related to non-cognizable offences without having an arrest warrant. According to Section 155(4), in cases where there are two or more offences involved, then the entire matter would be treated as a cognizable one and the police would have the authority to investigate the case in the same way as it has with respect to the cognizable cases.
Powers of the police to investigate such cases
Section 157 of the Code of Criminal Procedure lays down the procedure to be followed for investigation of the cases. The Section provides that every complaint or information which is received by the police should be immediately conveyed to the Magistrate who has jurisdiction to try such cases. The Magistrate has the power to investigate such offences or to order any subordinate officer to investigate the facts and circumstances of the case and take all the necessary actions for discovery and arrest the accused. The report regarding the findings of the case is sent to the magistrate in order to keep him abreast of the latest happenings.
Section 157 of the Code initiates the investigation to be conducted by the police or any other person authorized by the magistrate.
In Kari Chowdhary v. Sita Devi, the court held that the aim of carrying on investigations is to find out whether, in fact, the offence that has been alleged to have taken place has been committed and if the findings reveal that an offence has been committed then it is to be ascertained that who has committed the offence. However, where the police come to the conclusion that even though there has been a commission of an offence but the nature of it is not so serious to carry on any investigation then they can exempt themselves from doing so.
A case consisting of both cognizable and non-cognizable offences
The provisions related to information in case of non-cognizable offences and the way investigation has to be carried on are contained under Section 155 of the Code of Criminal Procedure. The Section provides that all the information which is received by the police under Section 155 must be recorded by the police in such books as may be prescribed by the State Government under which the police station falls. Section 155(2) of the Code mandates that the investigations related to the non-cognizable offences can not be started by the police without the prior permission of the Magistrate who has the power to investigate these cases. A police officer can start the investigation of the case as soon as he receives the permission from the Magistrate and when the police acquires the permission it has the power to investigate the case in the same way as he has in the matters of cognizable offences. However, the police do not possess the power to arrest any person in cases related to non-cognizable offences without having an arrest warrant.
According to Section 155(4), in cases where there are two or more offences involved and one of the offences is non-cognizable while the other offences are cognizable, then the entire matter would be treated as a cognizable one and the police would have the authority to investigate the case in the same way as it has with respect to the cognizable cases.
Powers to investigate a non-cognizable case
Section 155(2) of the Code mandates that the investigations related to the non-cognizable offences can not be started by the police without the prior permission of the Magistrate who has the power to investigate these cases. A police officer can start the investigation of the case as soon as he receives the permission from the Magistrate and when the police acquire the permission it has the power to investigate the case in the same way as he has in the matters of cognizable offences. However, the police do not possess the power to arrest any person in cases related to non-cognizable offences without having an arrest warrant.
Initiation of investigation
According to Section 2(h) of the Code of Criminal Procedure, the term investigation includes within its ambit all the proceedings which are undertaken by the police or any other person who is authorized by the Magistrate to carry on the investigation with a view to gathering the evidence in any case which has been reported. The person who carries on the process of investigation in a criminal case is referred to as a criminal investigator. The Code of Criminal Procedure contains provisions which direct the police when to initiate an investigation. Some of the Sections have been mentioned below:
- Section 154 of the Code provides that the police can initiate the investigation when a cognizable case has been reported to them;
- Section 155 of the Code provides that the police can initiate the investigation of a non-cognizable case when they have received permission to investigate from the Magistrate;
- Section 156 of the Code empowers any officer in charge of the police to initiate an investigation in case of a non-cognizable offence even without the prior permission of the Magistrate;
- Section 157 of the Code lays down the procedure which is required to be followed by the police in carrying on an investigation.
The court in Shiv Bahadur Singh Vs State of Madhya Pradesh held that the process of investigation begins right after the FIR is recorded in the police station having jurisdiction to do so.
Procedure for investigating a cognizable offence
Section 156 of the Code of Criminal Procedure lays down that the officer in charge of the police may, without the prior permission of the Magistrate start the process of investigation in cases involving cognizable offences. In a case where the police suspect the happening of a cognizable offence, it can start an investigation even without FIR. Police have the statutory right to investigate and it can not be taken away from it by the judiciary. The action of the courts begins only after the charge sheet has been preferred by the police and not prior to it.
In State of UP v. RK Srivastava, it was held that if the FIR does not point out to a cognizable offence or the proceedings have been initiated by the police with mala fide intention then the police has no authority to investigate in such a case and the High Court can stop and quash such an unjustified investigation carried on by the police.
In Indrajit Mukherjee v. State, the court held that the Magistrate does not have the authority to direct the investigating agencies the manner in which the investigation has to be carried on.
Section 156(2) of the Code of Criminal Procedure provides that no investigation proceedings carried out by the police shall be called to question on the ground that the case was the one in which the investigating officers do not possess the authority to deal with. Thus, any subsequent irregularity which is discovered at a later stage can not be the reason to vitiate the proceedings or the trial.
In State of UP v. Hari Mohan, the court held that a trial cannot be invalidated on the sole ground of the irregularity of the investigation conducted by the police until and unless such irregularity results into the grave miscarriage of justice.
Police officer’s power to require the attendance of witnesses
According to Section 160 of Code of Criminal Procedure Police officers who investigate a particular case have the power to require the attendance of witnesses in that case. Section 160 of the Code contains the following provision with respect to the power of the police to require the attendance of the witness:
- Section 160(1) of the Code provides that any police officer who is making an investigation of any case can make by order in writing, requiring the attendance of any person before him whom he deems to be in connection with the facts and circumstances of the case and who can in any way be a help for smoothly carrying on the investigation. The witness who has been required to make an attendance shall be present in the place as has been directed by the police. However, the Section further provides that no male below or under the age of fifteen years or any female shall be required to make attendance at any place other than the place of their residence.
- Section 160(2) of the Code provides that the State Government may by rules mandate that the police officer shall be liable to pay the reasonable expenses to the person whom they have required to make attendance as a witness under Section 160 (1) of the Code which they might have incurred in commuting to the place where they were called for making attendance.
The punishment of non-compliance of summons made by the police under Section 160 CrPC has been provided under Section 174 of Indian Penal Code where it has been declared as an offence. Section 174 of the IPC provides that whoever was bound to attend in person under Section 160 of the Code of Criminal Procedure any specific place at any specific time. If fails to make an appearance intentionally shall be liable to the punishment of simple imprisonment which may extend to one month or fine of five hundred rupees or with both. If the person has failed to make his attendance on the summons, notice order or proclamation which mandated him to appear in person or through his agent in the court of law shall be liable to a punishment of simple imprisonment for a term extendable to six months or with fine extendable to one thousand rupees or with both.
Examination of witnesses by police
The dictionary meaning of the term statement is “reciting or asserting any fact”. However, under the Code of Criminal Procedure, the term statement has been nowhere declared. Section 161 and 162 of the Code of Criminal Procedure deals with the oral examination of the witnesses by the police and the record and the use of the statements made by the witnesses to the police. Section 161 of the Code deals with the oral examination of the person by the investing agencies who are supposed to be acquainted with the facts and circumstances of the case. According to Section 162 of the Code, the purpose and the manner in which the police investigation has been conducted under Section 161 of the code shall be recorded an can be used during the trial.
The main objective behind Section 161 of CrPC is to obtain information pertaining to the facts and circumstances of the case which may be used to substantiate the facts and circumstances of the case during the trial in front of the Court of law. Section 161 empowers the police to orally examine ”any person” who is supposed to be acquainted with the facts and circumstances of the case.
Sub-section 2 of Section 161 put the duty upon the person who is questioned by the investigating agencies to answer all the questions honestly excepting those which are or may be self-incriminating in nature. The protection given to the person from self-incrimination is also given under Article 20 subsection 3 of the Constitution of India.
In Nandini Satpathy v. P.L Dani, the court held that an accused can not be compelled to answer any question put before him by the investigating agencies. If the nature of the questions is non-incriminating in nature when they are viewed in isolation but their nature changes to self- incriminating when the questions are viewed in a collectivity. Therefore, the Constitution guarantees a person not only freedom of speech but also the freedom to keep one’s mouth shut.
The statements of the witness recorded under Section 161 of the CrPC should be in indirect speech and shall be recorded in the first person. No oath or affirmation is required to be accompanied by the statements of the witness. It is not binding upon the investigating agency to record the statements made by the witness but if the statements are recorded then they must be recorded in the same manner as they are actually made. Subsection 3 of Section 161 of CrPC prohibits the investigating agencies from making the precis of the statements made by the witness also the statements made under this subsection may be recorded in audio-video electronic means. It is also mandated by the Section that the statements made by a woman witness must be recorded by a woman police officer.
Evidentiary value of the statements made to the police during the investigation
Section 161 of the Code of Criminal Procedure deals with the oral examination of the witnesses by the police and the record and the use of the statements made by the witnesses to the police. Section 161 of the Code deals with the oral examination of the person by the investing agencies who are supposed to be acquainted with the facts and circumstances of the case. According to Section 162 of the Code, the purpose and the manner in which the police investigation has been conducted under Section 161 of the code shall be recorded an can be used during the trial.
The main objective behind Section 161 of CrPC is to obtain information pertaining to the facts and circumstances of the case which may be used to substantiate the facts and circumstances of the case during the trial in front of the Court of law.
When a crime is committed there might be many people who are present at the crime scene and are aware of the facts and circumstances of the case. Therefore the statements of these witnesses are recorded in order to get a clearer picture of the crime and to determine the accused in the case. Therefore, the main purpose of the investigation is to obtain the evidence related to the crime which would lead the investigation and would ultimately lead to the deduction of conclusion.
Any statement or confession made to the police is never admissible as evidence because most of the statements made before the police are given under first or second-degree torture. Thus, most of the statements made to the police are made with the view to avoid pain and torture meted out to them by the police. Thus, not making the statements made before the police not admissible in the court of law is in the interest of justice. Section 162 of the Code provides that the person making the statements before the police shall not be compelled to sign the same and the statements so made will not be admissible in the court of law.
In Baleshwar Rai v. State of Bihar, the court held that the statements which are talked under Section 162 are the statements which are made before the court during the investigation and not during the period of investigation.
Therefore, the statements made by the witness before the police under Section 161 of the Code are not admissible as evidence in a court of law. However, the proviso attached to Section 162 sub-section 1 provides that if the witness is brought before the court from either side of the prosecution to testify then the person making the statement can be contradicted on the basis of the statement. Under Section 145 and 161 of the Indian Evidence Act, if there is a statement made by the defence witness recorded by the police in its day to day diary then the statement of the defence witness can be used to contradict him.
In criminal cases, the process of investigation is extremely thorough and involves a great deal of skill and caution. The law requires that the process of investigation should be carried on with great care and diligence as one wrong investigation would defeat the entire purpose of investigation which is the deliverance of justice to those who seek and also the discovery of the offender. Therefore, it is expected from the police that they leave no stone unturned while investigating a case. According to Section 173 of the Code of Criminal Procedure, the investigation of the case begins from the cognizance of the offence to the filing of the report before the Magistrate. The guilty get convicted after the proceeding of the case gets over when the Court finds proof that he has committed the offence.
FIR is an important procedure which is the first step towards the investigation of an offence and if it is carried on with due procedure established by law and diligence it can be an important source of evidence. It can be an important source of information required during the trial and can be used as corroborative evidence. Therefore, it is the mandatory duty of the police officer to record the FIR as soon as the information is received. As regards to the evidentiary value of the FIR, it is settled principle of law that the statements made by a person to the police officers are not admissible in the court of justice and hence the ascertainment of the facts by the police officer’s also comes under the umbrella of important piece of evidence but not a substantive piece of evidence. FIR can sometimes also be considered as Substantial Evidence but in most of the cases it ends up having a just value of an important piece of evidence. Hence we can assume that FIR is an important and a circumstantial piece of evidence.
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