This article is written by J Jerusha Melanie, pursuing Certificate Course in Introduction to Legal Drafting: Contracts, Petitions, Opinions & Articles from LawSikho. The article has been edited by Prashant Baviskar (Associate, LawSikho) and Zigishu Singh (Associate, LawSikho).
The very purpose of a court is to render justice. In criminal cases, rendering justice comes down to finding the truth. And the truth is what is sought in every trial. Now, finding the truth is a mammoth task, and it is taken care of by the administrators of justice- the police, the court, investigative agencies, etc. But the road to finding the truth and rendering justice is long. So, the entire process is divided into three major stages- pre-trial, trial, and post-trial stage. This article exclusively deals with the pre-trial stage of any criminal case, as provided under the Code of Criminal Procedure (CrPC).
The birth of a criminal case
Every criminal case originates from the commission of an offence, and the legal proceedings against it are kick-started when it is informed to the police, generally, by way of an informant. The informant may be:
- the victim,
- someone on the victim’s behalf, or
- anybody having information on the offense.
The offence may be either cognizable or non-cognizable.
Cognizable and non-cognizable offence
As defined under Section 2(c) CrPC, a cognizable offense is one in which a police officer may arrest without a warrant. Contrarily, as per Section 2(l), a non-cognizable offense is one in which a police officer has no authority to arrest without a warrant. If the information received by the police relates to more than one offense out of which even one is cognizable, the entire case is treated as a cognizable case.
The steps involved in the pre-trial stage
STEP 1- Information to the Police
Information on cognizable offence
If the information received by the police through the informant relates to any cognizable offense, the officer in charge of the police station records it under Section 154 CrPC. The informant can give the information in both oral and written form; if given orally, it should be reduced to writing and read over to the informant. The informant gets a copy of the recorded information free of cost.
This recorded piece of information received first-hand from the informant is called the First Information Report (FIR).
The FIR is the first version of the incident as received by the police. It is vital for both the investigation and corroboration of evidence, but it is not substantive evidence in itself. The criminal law sets its motion upon the lodging of FIR.
Information on non-cognizable offence
Upon receiving the information, the Magistrate may take cognizance of it under Section 190 CrPC. If he takes cognizance, he examines the informant upon oath. The examination’s substance is reduced to writing and signed by the informant and the Magistrate. After examining, if the Magistrate finds sufficient grounds to investigate the case, he orders the police to investigate under Section 156 and Section 202 CrPC; if not, he dismisses it. Once the police receive the Magistrate’s order to investigate, they carry on with the case as if it were a cognizable one, although they cannot arrest without a warrant.
What if the police refuse to record the information?
At times, the police may refuse to lodge an FIR. It may be either:
- To avoid their workload, or
- In the police officer’s opinion, no sufficient ground exists to enter into an investigation.
When the police refuse to enter into an investigation citing insufficient grounds, he gives a written report stating the reasons for his refusal; the informant gets a copy of the same.
On refusal to lodge FIR, the informant has two options to set the criminal law into motion:
- Send written information to the concerned Superintendent of Police (SP) under Section 154(3). If the SP is satisfied that the information discloses the commission of any cognizable offense, he orders the police to investigate.
- File a complaint directly to the Magistrate under Section 190 CrPC, which gets treated like any information received on an NC offense under Section 190.
- File a ‘Zero FIR‘ in a police station other than the one which refused to file FIR (Kirti Vashisht vs State & Ors.). The station that files Zero FIR conducts any required medical examination and transfers it to the police station having proper jurisdiction.
STEP 2- Investigation
Upon filing an FIR (in case of a cognizable offence) or receiving the Magistrate’s order (in case of an NC offence), the officer in charge of the police station starts the investigation. Under Section 2(h) CrPC, the police (not the Magistrate!), conduct the investigation to collect evidence. The police have unhampered power to investigate under Section 157 CrPC, any cognizable case, irrespective of any court’s order (Emperor v Nazir Ahmed).
The police can commence investigating a cognizable case right after the filing of an FIR. However, for an NC case, the Magistrate’s order under Section 202 (read with Section 190 and 200) CrPC is required to commence the investigation.
Report to the Magistrate
Upon receiving information on a cognizable offense, the officer in charge of the police station sends a preliminary report to the empowered Magistrate through a superior officer appointed by the State Government.
Proceed to the spot
The officer in charge of the police station proceeds to the spot of the offense when:
- He suspects the commission of a cognizable offense or
- Receives the Magistrate’s order to investigate an NC case.
Proceeding to the spot is not mandatory if:
- The case is not serious, and
- The information is given against any person by name.
Attendance of witnesses
When the police officer suspects the acquaintance of any person (within certain limits) with the case at hand, he gives a written order under Section 160 CrPC for that person to appear before him; this is to facilitate the police to collect the required evidence. And the so-called witness is duty-bound to oblige the order.
The order is a part of the investigation and doesn’t amount to harassment of the witness or violation of Article 21 of the Constitution of India per se if reasonable grounds exist to believe that the witness knows something about the offense (Sube Singh v State of Haryana).
However, the following persons need not attend the police investigation at places other than their residence:
- Males under fifteen or above sixty-five years of age,
- Women, and
- Mentally or physically disabled persons.
Examination of witnesses
Usually, the police examine the witness orally and reduce the statements into writing. Every witness’ statement is recorded individually in first-person form. It can be audio-video recorded too.
The witness is legally bound to truly answer all the questions put forth to him during the examination, except the ones that may expose him to any criminal consequence.
Prohibition on signing the recorded statements
No statement made by the witness to the police, recorded in writing while investigating, is signed by him. Under Section 162(1) CrPC, such statements can be used by the accused or the prosecution to contradict the witness under Section 145 of the Indian Evidence Act 1872 (Cross-examination as to previous statements in writing). Meaning, if the witness making such statements-
- comes as a ‘prosecution witness’ in the trial, then the accused can contradict him using such statements;
- comes as a ‘defense witness’ in the trial, then the prosecution can contradict him suing such statements.
But it cannot be used for corroborating the evidence of a witness in the court (Sat Paul v Delhi Administration). Also, no police officer should directly or indirectly induce, threaten, or promise while investigating.
Recording of confessions and statements
A confession made by the accused to the police is inadmissible in evidence under the Indian Evidence Act 1872. However, Section 164 CrPC provides the exception that such a recording must fulfil the following conditions to be admissible in evidence:
- Only a Metropolitan Magistrate or Judicial Magistrate (with or without having jurisdiction in the case) must record the confession or statement during the investigation;
- The recording Magistrate must be satisfied that the confession is voluntary;
- The Magistrate must warn before recording the confession that the accused is not legally bound to confess.
- If the confession is recorded by audio-video means also, then the presence of the accused’s advocate is required;
- The recording must satisfy Section 281 CrPC.
Medical examination of rape victims
While investigating an alleged commission or attempt of rape, the victim (if consents) goes through a medical examination by a registered medical practitioner employed in a government hospital within 24 hours from the information’s reception. The medical examination enables the police to get crucial information on the offense, including the offender’s identity. The medical practitioner prepares a report of the examination and forwards it to the investigating officer.
Search by the police
The officer in charge of a police station can search any place within the limits of his station to find something necessary for investigating if:
- Reasonable grounds exist that it may be found in that place; and
- He opines that it is obtainable only without undue delay.
The officer records in writing such reasonable grounds before the search, a copy of which is sent to the nearest empowered Magistrate. The search must satisfy Section 100 CrPC, which mandates:
- Presence of minimum two independent search witnesses and the occupant of the searched area, and
- Making of a list of items seized during the search, signed by the search witnesses.
When the suspected place is outside the limits of the investigating officer’s police station, he asks the police officer of the station under whose limit the place falls to issue a search warrant.
Arrest of the accused
While investigating an NC case, if an arrest is felt necessary, the court issues an arrest warrant under Section 70 CrPC, directing any police officer to arrest the accused.
However, while investigating a cognizable case, the police officer arrests without an arrest warrant under Section 41 CrPC, any person against whom:
- A reasonable complaint is filed,
- Credible information is received, or
- Reasonable suspicion rises that he committed a cognizable offense punishable with imprisonment up to seven years, fine, or both.
If an immediate arrest is not needed, the officer issues a notice to appear before him at a given time and place, to which the accused is legally bound to oblige. If he fails to oblige, then an arrest is expedient. Any accused arrested by the police with a warrant must be produced before the Magistrate within twenty-four hours of arrest.
Release of accused if evidence insufficient
Within the twenty-four hours of arrest, the accused is released on executing a bond with/without sureties under Section 169 CrPC that he will appear before the Magistrate whenever required, if:
- the investigation is complete within 24 hours of arrest, and no firm evidence exists against the accused, and
- The officer opines that no reasonable ground exists to produce the accused before the Magistrate or prolong the detention.
The police record the release in a ‘Closure Report’.
Forward of accused to Magistrate if evidence sufficient
If the investigation is complete within 24 hours of the arrest and sufficient evidence exists against the accused, under Section 170 CrPC the police will:
- Forward him to the empowered Magistrate, or
- If the offense is bailable, release him after taking security for his appearance before the Magistrate.
What if the investigation is not complete in twenty-four hours?
The police cannot detain anyone who is arrested without a warrant for more than 24 hours (Section 57 CrPC); such detention exceeding 24 hours amounts to illegal arrest and violation of Article 22(2) of the Indian Constitution. But no investigation can be practically completed within 24 hours. Section 167 CrPC provides the solution to the dilemma as to what to do with the detained accused.
Under the above circumstances, the police forward the accused to the nearest Judicial Magistrate, along with a copy of the investigation diary maintained under Section 172 CrPC.
Such a Magistrate can extend the police custody for 15 days. After that, the accused is forwarded to the Magistrate having jurisdiction over the case, who can order any further detention (except police custody!) for the following period:
- Ninety days (for any alleged offense punishable with death, imprisonment for life or for a term not less than ten years);
- Sixty days (for any other offense)
After the extended period, the accused is released on bail if he furnishes it.
STEP 3- Report of the investigation
After investigating, the subordinate officer involved in the investigation submits a report under Section 168 CrPC to the officer in charge of the police station, who further forwards a Completion Report to the Magistrate under Section 173 CrPC. The Completion Report is of two types- Closure Report and Charge sheet.
Closure Report is the Completion Report forwarded by the police to the Magistrate when the accused is found innocent due to lack of sufficient evidence and released on a bond under Section 169 CrPC. Upon its reception, the Magistrate either dismisses the case under Section 203 CrPC on the ground of insufficient evidence or takes its cognizance under Section 204 CrPC.
Chargesheet is the Completion Report forwarded by the police to the Magistrate when sufficient evidence exists against the accused. This report is commonly called the ‘challan’.
Contents of the Completion Report
- Parties’ names,
- Nature of the information,
- Witnesses’ names,
- Possibility of the offense,
- Accused’s name,
- Whether the accused is arrested,
- Whether he is released on his bond,
- Whether he is forwarded in custody under Section 170,
- Any records of statements and confessions, or relevant documents,
- Medical examination of any victim woman under Section 164A, etc.
The informant is informed of the submission of the completion report to the Magistrate.
End of the Pre-Trial Stage
The Pre-Trial stage ends when the police submit the Completion Report to the Magistrate. Next, the Trial stage starts once the Magistrate takes cognizance of the case by issuing the process for proceedings under Section 204 CrPC.
Special protection to women victims
Throughout the Pre-Trial stage, the victims of offenses under Sections 354, 354A, 354B, 354C, 354D, 376, 376A, 376AB, 376B, 376C, 376D, 376DA, 376 DB, 376E, or 509 CrPC are specially protected in the following way:
- If the woman victim is the informant, the information is recorded by a woman police officer;
- If such victim is physically or mentally disabled, the information is recorded by the police at a place of the informant’s convenience;
- Woman victims’ statements are recorded by a woman police officer, by audio-video means as well.
- The time limit for investigating such offenses- 2 months.
The pre-trial stage of any criminal case primarily revolves around the police. The police investigation forms the basis of every criminal case; it establishes the initial direction of the case. The lives of the accused and victim lie essentially upon how the investigation drives the trial. Considering the weight of its consequence, it is imperative to conduct it with the utmost diligence and care. At the end of 2020, a whopping number of 2134975 cognizable cases were pending investigation, out of which 87599 were pending for more than three years! Time decreases the possibility of finding the truth, and so does ignorance. Wipe out ignorance; let justice prevail!
- Indian Kanoon – Search engine for Indian Law
- Crime in India 2020, National Crime Records Bureau
- THE CODE OF CRIMINAL PROCEDURE, 1973
- THE INDIAN EVIDENCE ACT, 1872
- THE INDIAN PENAL CODE, 1860
- Ratanlal and Dhirajlal’s The Code of Criminal Procedure 23rd Edition
- https://www.law.cornell.edu/wex/corroborating_evidence#:~:text=Corroborating%20evidence%20is%20evidence%20that,the%20context%20of%20a%20 conviction.
- TABLE 17A.5.xlsx (ncrb.gov.in)
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