Criminal law

This article is written by Monika Pilania, a student of Maharshi Dayanand University, Rohtak. This article seeks to elucidate Section 160 of CrPC which contains the Police Officers power to summon a witness.

It has been published by Rachit Garg.

Introduction 

We usually face situations where crime happens every day. It is not possible for police officers to be present everywhere when a crime is committed. And it is not possible to install CCTV cameras everywhere in the country. The criminals are well trained, and they leave no evidence of their crimes. In such a situation, the only way left for the police officers to catch the culprit is to interrogate those who see and witness the crime. Therefore, police officers are given certain powers to properly investigate a crime. The common misconception that often haunts the citizens of this country is that the powers and authority of the Police Department are autocratic and unbreakable. Instances of police officers harassing individuals in connection with investigations abound. The added stigma stems from the fact that most people are unfamiliar with the legalities associated with such situations, and in all such cases, ignorance is almost always not “bliss”, but it is nothing short of suffering. 

The present article attempts to shed some necessary light on the provisions of Section 160 of the Code of Criminal Procedure in respect of a notice issued by an investigating police officer, which requires the presence of any person who is acquainted with the facts and circumstances of the given information or otherwise, and such a person shall be present as and when required.

Essentials of Section 160

According to Section 160(1), an investigating officer can by order require the attendance before himself of any person if the following conditions are satisfied:

  1. The order requiring the attendance of the person must be in writing.
  2. The person is one who appears to be acquainted with the facts and circumstances of the case; and
  3. The summons issued under Section 160 of the Criminal Procedure Code must include the Investigating Officer’s name, title, and address as well as information on the FIR and the offence.
  4. The person called for investigation is within the limits of the police station of the investigating police officer or is within the limits of any adjoining police station.
  5. The police officer must also pay this person’s reasonable expenditures when they attend at a location other than their home, in accordance with the rules. 

However, a person below 15 years of age or above 65, a woman, or a mentally or physically disabled person shall not be required to attend any place other than the place in which such person resides. This provision is intended to give special protection to children and women against the probable indignities and inconveniences that might be caused to them by the abuse of police powers under Section 160(1). There is a public policy, not complimentary to the police personnel, behind this legislative proscription that keeps juveniles and females away from the police company except at the former’s safe residence. Maybe, in later years, community confidence and consciousness will regard the police force as entitled to better trust and will soften the stigmatising or suspicious provisions now written across the code.

Who is a witness

Those who give testimony under oath or affirmation in person, by oral or written deposition, or by an affidavit are considered witnesses if they see, know, or are witnesses to something. Evidence that is admissible in court is the foundation of a criminal case. Whether it be direct evidence or indirect evidence, witnesses are required for it.

Section 160 Examined

The wording of Section 160 is simple and unambiguous, and there is no doubt that this provision is placed in the service of a fair and comprehensive inquiry, which is the most basic need in any criminal procedure in any country. In situations where the police sends a notice under Section 160 of the Code, the police should explicitly explain the contents of the F.I.R/Case No. Non-compliance with a summons issued pursuant to Section 160 of the Criminal Procedure Code is a crime punishable under Section 174 of the Indian Penal Code. This provision states that anyone who is required by law to appear in person or through an agent at a specific location and time in response to a summons, notice, order, or proclamation issued by a public official who is legally authorised to do so, if intentionally omits to attend that place or time, shall be punished with a simple imprisonment for a term which can also be extended to one month or with a fine which can extend to five hundred rupees, or with both; or if the summon, order, notice is to attend in person or through its agent in a court of justice, shall be punished with simple imprisonment which may extend to six months, or with a fine which can extend to one thousand rupees, or with both.

It is quite clear from the language used in Section 160 that a police officer making an inquiry has the power to summon only the person who is within the limits of one’s own police station or within the limits of any adjacent police station. A police officer has no power to call a witness who is not within the said limits of Thana or any nearby police station.

Therefore, if a witness is residing in another state, in a different district, or is an outside witness, he cannot be called to appear before the investigating police officer. However, if the area within which such a witness is located is adjacent to a police station, even if it is in any other state or district, such a witness may be called by a police officer.

In this regard, it is important to note that an order was issued in the 1975 case of Krishan Bans Bhadur v. State of Himachal Pradesh, pursuant to Section 160 of the Code of Criminal Procedure, that required petitioners to appear at Police Station Chhota Simla in connection with an investigation of a case. They received the order in New Delhi. The petitioners were unable to comply with the order by appearing at the police station.

As a result, a charge sheet for a violation of Section 174 of the Indian Penal Code was filed against the petitioners. In light of the facts, the Himachal Pradesh High Court made the following ruling:

“It is clear that the petitioners did not violate any of the directions or provisions provided under Section 160 of the Code of Criminal Procedure. Any person being within the limits of his own or any adjoining station who, from the information given or otherwise appears to be familiar with the circumstances of the case, is required by Section 160 to be present before a police officer conducting an investigation, and Section 160 adds that such a person must attend as so required. It is clear from the record of the current case that the petitioners were not located within the boundaries of the police station where the police officer was issuing the order or of any neighbouring stations at the time the orders under Section 160 of the Code of Criminal Procedure was issued. The petitioners were in New Delhi, according to their address, which is specified in the order. There is absolutely no proof that they were ever in Shimla. Section 160 of the Code of Criminal Procedure appears to lack authority. The order was not issued by a public official who was duly authorised to act in that capacity. Therefore, it cannot be stated that any offence was committed that falls under Section 174 of the Indian Penal Code.”

Can Police Officer issue a summon to a suspect under Section 160 CrPC

According to Section 160 of the CrPC, a police officer conducting an investigation under Chapter XII of the CrPC may demand that anyone within the boundaries of his own police station or an adjacent police station who, in his judgement, appears to be familiar with the facts and circumstances of the case appear before him. Until the investigation is over and a charge sheet is produced, police or IO may summon any individual, even if he is a suspect in the case.

This was held in the Nandini Satpathy v. Dani and Anr., 1978 case. The Court held that Section 161(2) functions as a kind of parliamentary commentary on the Constitution’s Article 20(3). The police have the authority to question someone who was or might become an accused person in the future under Section 160 and Section 161 of the CrPC because section 161 covers actual accused and suspects. People who are first or ultimately accused would be considered any person under Section 161 CrPC.

Powers of Police officer

The police investigation begins when:

  1. FIR (First Information Report) is lodged,
  2. When a police officer suspects the committing of a crime that is punishable by law,
  3. When a competent magistrate directs the Police.

Both cognizable and non-cognizable offences are subject to a police investigation. Without a magistrate’s permission, police officers can investigate cognizable offences. A police officer has the authority to conduct an investigation under Section 157 without first filing an FIR if he suspects the commission of a cognizable offence. Additionally, in order to conduct an investigation, police have the power to compel the appearance of witnesses.

Under Section 156 of the Code of Criminal Procedure, police officers have the power to investigate a case. In accordance with Section 160 of the Criminal Procedure Code, a police officer conducting an inquiry may summon a witness. However, Section 161 allows any investigating officer to examine someone in person if they are deemed to be familiar with the facts and circumstances of the case. Such a person may be interviewed orally by a police officer, and he is required to truly respond to any inquiries about the case unless his statements have the potential to subject him to criminal prosecution, a fine, or forfeiture. The police officer may also use audio-video technology methods to put such remarks in writing. The police officer will provide the accused with copies of the statements. After an investigation, a police officer is empowered to present a charge sheet.

Prerequisites to the power granted to a Police officer under Section 160 

The prerequisites to the power granted to a police officer under Section 160 are:

  1. The registration of an FIR is required before a police officer may issue summons or notices.
  2. The person is one who appears to be acquainted with the facts and circumstances of the case; and
  3. The summons issued under Section 160 of the Criminal Procedure Code must include the Investigating Officer’s name, title, and address as well as information on the FIR and the offence.
  4. The person is within the limits of the police station of the investigating police officer or is within the limits of any adjoining police station.

Can you refuse to be witness under Indian Laws

Before we analyse the question, let’s first have a look at the various sections of the Indian Constitution, the Code of Criminal Procedure, and the Evidence Act. First, according to Section 160 of the CrPC, a police officer has the right to call any person familiar with the facts of the case during an investigation, and they are compelled to appear. Section 132 of the Evidence Act states how a witness can be made to answer questions that may incriminate him, with the condition that if the court compels him to answer, he is required to do so, but the prosecution cannot be initiated against such compelled incriminating questions. And last but not least, according to Article 20(3) of the Constitution, no one can testify against themselves.

In an adversarial system like ours, the burden of proof rests with the prosecution to establish guilt beyond a reasonable doubt. So, the prosecution needs additional power. Because of this, a witness can be compelled to testify against another, but a witness cannot be compelled against himself; Instead, he has a right to remain silent.

Important judicial pronouncements 

Amandeep Singh Johar v. State of NCT of Delhi & Anr 

In this case, a Division Bench of the Delhi High Court heard a Writ Petition in which the Petitioner complained about being summoned to the police station on a frequent basis to participate in an investigation without even receiving a single notice under Section 41A of the Code. The police issued a notice directing the person against whom a complaint has been made that he has committed a cognizable offence to appear before them. Even though Section 41A of the Code deals with situations where the arrest of a person is not required under the provisions of sub-section (1) of Section 41 of the Code, the underlying fallacy remains the same. People’s rights are violated when they are harassed by demands for their appearance in the absence of notices required by Section 160 or in response to notices that were given incorrectly. The aforementioned verdict also raises severe concerns about the police’s practice of failing to acknowledge receipt of documents that are presented by and of failing to enter same into the police report. In the aforementioned Writ Petition, the Delhi Police was ordered to establish fair and reasonable regulations for the issuing and service of notifications under Sections 41A and 160 of the Code.

The High Court considered that the aforementioned Writ Petition addressed basic flaws and directly affected the rights of everyone who is subjected to police inquiries. The Delhi High Court established strict guidelines for the Delhi Police to follow regarding the application of Sections 41A, 91, and 160 of the Code, which were made mandatory in nature, following lengthy deliberations that included a report that was prepared by the Learned Registrar General of the Delhi High Court that was very critical and invaluable. The Delhi High Court further ordered the Delhi Police to publish and issue a departmental circular mandating strict adherence to the court’s proceedings. The interesting part of the aforementioned ruling is that the Court established a model format for notices sent out in accordance with Sections 41A, 91, and 160 of the Code, and the model format explicitly instructs recipients to study the F.I.R/Case No. of the investigation proceedings. This makes it quite obvious that no such notification of an F.I.R./Case No. may be given to a person who is not present.

Nandini Satpathy vs Dani (P.L.) And Anr, 1978 

In this case, the police filed a complaint against the appellant under Section 179 of the Indian Penal Code for failing to answer questions. The Magistrate summoned the accused to appear before the court, which the appellant refused, and she proceeded to the High Court under Article 226 of the Constitution and Section 401 of the CrPC, where her appeal was dismissed. As a result, she filed an appeal with the Supreme Court under Article 132 (1). The main concern in this case was determining the scope of Section 161 (2) of the CrPC and Article 20 (3) of the Constitution. The Judge decided that calling a woman a witness in the police station violates Section 160 (1) and influences her testimony, and that Section 161 (2) and Art. 20 (3) protect the witness from being forced to answer incriminating questions at the investigation stage. The Court also held that, in order to invoke Art. 20(3), the party pleading must be accused of an offence and that he or she was subjected to a compulsion to answer the incriminating questions asked. This protection also extended to the investigative stage according to the Miranda rules. The appellant was therefore instructed to respond to any pertinent and non-self-incriminating questions. As a result, the prosecution’s case was dismissed.

Lalita Kumari vs Govt.Of U.P.& Ors 

In this case, the Hon’ble Supreme Court of India has clearly stated that there is no scope for a police officer to conduct preliminary inquiry after receiving information about the commission of any cognizable offence, and consequently, he should proceed immediately by registering an FIR. The Supreme Court has only granted limited discretion to police officers where they are only allowed to conduct a preliminary investigation which is limited to determining whether the information they have received reveals the commission of a cognizable offence. In cases where the police authorities undertake to start and carry out an inquiry, any notice issued to anyone to verify the commission of an offence should not be exempt from the requirement and powers granted to the police by virtue of Section 160 of the Code, since an F.I.R. has not yet been registered.

Latest Supreme Court and High Court rulings

High Court Rulings

The Delhi High Court has held that under Section 160 CrPC, a police officer cannot summon a person located outside the territorial limits of his or her police station, or at most the territorial limits of his or her adjoining police station, for the purposes of an investigation. This ruling was made in the highly significant case of Jamshed Adil Khan & Anr. v. Union Territory of Jammu and Kashmir and Anr (2022). Police officers are given the power to request witnesses’ attendance under this provision. The Single Judge Bench, stated that it is “clear from the plain reading of sub-section (1) of Section 160 CrPC that, for the purposes of an inquiry, a police officer can request appearance of an individual placed within the limits of his own police station or that of the neighbouring police station and not someone who is positioned outside the stated territorial limits.”

In another recent ruling by the Delhi High Court, Kulvinder Singh Kohli v. State of NCT of Delhi & Ors. in W.P.(CRL) 611/2022, made the rational observation that a police officer may issue summons or notices under Section 160 of the Code of Criminal Procedure to initiate an investigation, but that the registration of an FIR is required before doing so. The Court noted that an inquiry cannot be deemed to have begun without the registration of an FIR.

In A. Sankar v. V. Kumar and others (2022), the Madras High Court slammed the police officers for issuing a summons to the counsel representing a party in violation of Sections 91 and 160 of the CrPC. The order, according to the court, was issued carelessly, and the summons’ issuance degrades the status of an advocate. The police’s attitude and carelessness in sending the summons to the petitioner’s counsel were seriously noted by the court. Petitioner filed the contempt petition on the grounds that the respondent had disobeyed the court’s decision requiring the respondent to take the petitioner’s arguments into consideration. The court issued the above mentioned order in accordance with the rules outlined in Sabari v. The Assistant Commissioner of Police, Madurai City and Others (2018).

Supreme Court Ruling

In Charansingh v. State of Maharashtra (2021), the Supreme Court stated that the statements made during the open inquiry at the pre-FIR stage cannot be considered statements under Section 160 of the Criminal Procedure Code and cannot be used against the accused during the course of the trial because they were not recorded during the course of the investigation as required by the CrPC. The bench made up of Justice DY Chandrachud and Justice MR Shah noted that such a remark cannot be classified as confessional and that if it were to be considered confessional, only then could it be classified as self-incriminatory and illegal under the law. The bench further stated that the statement and the material obtained during an investigation should only be used to meet any requirements and determine if an offence has been committed.

Conclusion 

Despite the fact that the law requires the investigating officer to issue a written summons to any individual for questioning. However, in practice, this is rarely followed. In most cases, the investigating officer or a constable from the police station summons the witness to the station and interrogates him. He is frequently forced to wait for hours, and in extreme cases, days.

The police officer has the legal authority to question anyone who has reliable information. It is also true that such people are rarely willing to provide a fast and accurate hint to the crimes. As a result, some persuasion and promise may be required. That does not mean that the police are free to physically abuse them. To ensure the effectiveness of the inquiry, interrogation should be effective. The use of force is inhumane and illegal. Police officers are the guardians of the law; if they commit crimes, no one in society is secure.

Some have questioned whether it is essential to summon a witness to the police station for questioning. A witness is not an accused; he does not need to go to the police station to provide testimony. Nonetheless, as a responsible citizen, it is the duty of every citizen to provide the police with information about facts and circumstances that are within his knowledge.

Frequently Asked Questions (FAQs) 

Can a notice issued under Section 160 of the CrPC be quashed?

The police have every authority to issue a notice under Section 160 of the Criminal Procedure Code, and a notice issued under Section 160 cannot be quashed by a Court. The Court is not permitted to intervene with an inquiry after giving notice under Section 160 of the Criminal Procedure Code.

Can the Police Officer summon an outside witness under Section 160 CrPC?

In accordance with Section 160 of the Criminal Procedure Code, a police officer cannot call someone who is located outside of his police station’s jurisdiction, or at most, the jurisdiction of his adjacent police station, for the purposes of an inquiry.

Can a woman be summoned at the police station?

Section 160 prohibits summoning women to the police station for questioning. According to this rule, women have the right to refuse to appear in person at a police station for questioning. The police can question a woman at her home in front of a woman constable and family members or friends.

Can the police issue notices under Section 160 of the Criminal Procedure Code prior to the filing of an FIR?

The police can issue a notice requiring witness appearance under Section 160 CrPC only after the FIR is registered and not before the case is registered.

Difference between Section 160 and Section 41(a) of CrPC?

The notice under Section 41(a) CrPC is issued for an attendance in lieu of arrest, but the notice under Section 160 CrPC is issued to a witness. Under the provisions of sub-section (1) of Section 41, the police officer is required to issue a notice instructing the person against whom a reasonable complaint has been made, credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence, to appear before him or at such other place as may be specified in the notice, in all cases where the arrest of a person is not required.

References 


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