21 November 2018

Police investigation: Its legal provisions

Investigation by Police
Investigation by police is the first stage in the criminal proceedings. It is an exclusive domain of police. It serves as a crucial step in punishing the offender. The police have unfettered powers to investigate into a cognizable offence, as per Section 156 of the Code of Criminal Procedure, 1973 (CrPC).
This power of investigation by police is coextensive with the power of the magistrate in the jurisdiction to conduct an inquiry or trial in the case, under the chapter XIII (Sections 177 to 189) of the Code. The chapter provides for the jurisdiction of the criminal court in inquiry and trial. That, in turn, is applicable to the police in the determination of their jurisdiction as well.
Investigation means
The investigation refers to all the proceedings of police meant for collection of all information on the crime. It helps the police to identify the perpetrator, apprehend him, and collect all materials needed for prosecution of the accused. The two crucial steps in the process of investigation are discovery and arrest of the suspected offender, and the search and seizure of materials considered necessary for the investigation.
The investigation by police is followed by presentation of evidence, arguments, determination of guilt, and imposition of punishment on the guilty by the court. The Section 154 to 174 of the Code lays down the power of police to investigate a cognizable case and its essential procedures.
Cognizable offence means
The cognizable offence is the act or omission of a person punishable by any law in force in which the police officer has power to arrest him without a warrant. They are enlisted in the First Schedule of the CrPC. In non-cognizance offence, the police have no authority to arrest an accused without a warrant from the court.
Processes of investigation
The police officer in charge of police station is duty bound to register a First Information Report (FIR) when he receives information clearly disclosing the commission of a cognizable offence and to proceed with an investigation into it.
The first information is the statement based on which the investigation should start. It is the statement of information makes the police officer duty bound to send an FIR to the Magistrate, who holds the power to take cognizance of such offence on submission of the police report. The police report is to be filed under Section 173(2) of the CrPC.
The Magistrate, on receipt of the FIR, can order either a police investigation at once, or a preliminary magisterial inquiry under Section 159 of the CrPC. But the Magistrate has no power to stop a police investigation under the Section. The only remedy available to an aggrieved person to stop an ill-conceived investigation by the police is to approach the High Court for quashing the FIR, under Section 482 of the CrPC or Article 226 of the Constitution.
The Magistrate, if not giving direction for a police investigation, can hold an inquiry into the offence under the Section 159 of the Code. This Section is meant for giving the Magistrate the power to direct inquiry in cases where police do not investigate under Section 157(1) of the Code.
Steps in police investigation
The investigation by police generally consists of the following steps:-
1.     Proceeding to the spot
2.     Ascertaining the facts & circumstances of the crime
3.     Discovery and arrest of the offender
4.     Collection of evidence by examining those acquainted with the crime
5.     Search and seizure of necessary things  
6.     Formation of opinion as to whether to place the accused before the Magistrate for trial
If the FIR does not prima facie disclose any cognizable offence the police have no authority to investigate the case.
No Investigation when no cognizance
If the police officer thinks that the case is not of a serious nature the police officer need not proceed to the spot and make investigation immediately. If so, the police officer shall state his reasons for investigating or not investigating the case in the police report. If he is not entering into investigation he shall notify the matter to the informant.
The magistrate receiving the above report may order investigation if he thinks the police are neglecting their duties or desisting from investigation on insufficient grounds.
When police investigation starts
The police may start investigation on the following occasions:
1.     where FIR is lodged, under Section 154
2.     when District Police Chief orders investigation, under Section 154(3) CrPC
3.     where police suspecting the commission of a cognizable case, under Section 156(1)
4.     when the Magistrate orders an investigation at pre-cognizance stage, under Section 156 (3) CrPC
5.     when a Magistrate ordering investigation on a non-cognisable case, under Section 155 (3) CrPC
6.     on a complaint under Section 202 CrPC
Scene Mahazar
Police should prepare a Scene Mahazar which provides the details of the scene of crime. The Mahazar would serve as proof of occasion, cause or effect of facts, coming under section 7 and 9 of the Indian Evidence Act.
It is a description of facts and state of things which an investigating officer observes in a scene of crime. It should be prepared in the presence of two or more independent and intelligent witnesses preferably residing nearby. The witnesses should sign the Mahassar. The Mahassar enables the court to obtain an idea of the scene of occurrence of the crime.
Statements of witnesses should not be written in the Mahazar except for confession leading to recovery of weapons or other material objects, as per Section 27 of Indian Evidence Act.
A Recovery Mahazar should also be prepared in case there is any recovery of weapon or material object.
Site Plan needs to be prepared
The Village Officer will have to prepare a site plan of the place of occurrence on the basis of Scene Mahazar. It should record the complete picture of the place of occurrence of a crime with minute details. There should not be disparities between the police Mahazar and the Site Plan so as to make the evidence credible to the court.
It is through the Mahazar and the Site Plan the court gets a picture of the place of occurrence of the crime.
Inquest report in unnatural death
The Police Officer making investigation into cases of suicides and other unnatural or suspicious death must report, under Section 174 of the CrPC, to the nearest District or Sub-Divisional Magistrate empowered to hold inquest. Then the officer should proceed to the place where the body of the victim is lying and make an investigation so as to draw up a report of the apparent cause of death describing such wounds, fractures, bruises found on the body. The report should state in what manner or by what weapon such wounds wound have been inflicted.
The report, to be signed by the police officer and other two or more respectable neighborhood witnesses, shall be forwarded by the Police Officer to the District and Sub-Divisional Magistrate. The Police Officer can issue notices under Section 175 of the CrPC to the persons acquainted with the facts to ensure their presence before the Police Officer and make them bound to answer truly the questions the officer may ask.
The purpose of the report is to ascertain the causes and circumstances of the unnatural death. It is a limited purpose one.  The name of the accused and the details of the incident are not needed in the report.
The inquest report is not a substantive piece of evidence. But it can be used for corroboration of the evidence given by the police officer making the report. After the inquest, the dead body along with a duly filled form should be sent to the Civil Surgeon for post mortem.
Examination of witnesses by police
The police officer has power to require attendance before him of any witness who has acquaintance with the facts and circumstances for their examination, under Section 161 of the CrPC.
The basic objective of the witness examination is to collect information for the investigation. It starts without knowing who the offender is. But the examination of the witnesses acquainted with the incident will help the police in finding the accused. 
No male below 15 or above 60 years of age, or a woman, or a mentally or physically disadvantaged person would be required to attend any place other than the place they normally reside.
The witness is supposed to answer all the queries of the officer truly. The police officer must be an officer not below the level of a Sub-Inspector. The officer must reduce the statements into writing for each one of the witnesses. The statements need not be signed. Inducement, threat or promise could not be used to record any statement. Any person familiar with the fact of the crime can be used for such examination but not the accused.
The statements made to the police have absolutely no evidentiary value at all. No such statement can be used for any purpose except as a dying declaration under Section 32 (1) of evidence act or for recovery of weapon or material object, under Section 27 of evidence act. The confession of an accused before the court is an admission. To record any confession certain procedural prerequisites under Section 164 of the CrPC need to be followed.
  A statement made to the police by a person produced as a prosecution witness can be used to contradict such a witness in the manner provided for in Section 145 of the evidence act. But if the person is produced as a defence witness, his statement to police cannot be used for contradicting him.
Remand of the accused
If the accused is in custody and the investigation cannot be completed within 24 hours the police have to forward a copy of the FIR to the nearest judicial Magistrate and may extend the custody to a term not exceeding 15 days under Section 167 of the CrPC. If the accused is not produced the accused is considered to be in wrongful detention. The Magistrate has to decide judicially whether the accused is to be allowed in police custody or to be placed in judicial custody.
The Magistrate can allow judicial custody for adequate reason for a period beyond 15 days, under Section 167 (2) (a) of the CrPC. But the total period of detention cannot altogether exceed 90/60 days.
Case Diary of the Investigation Officer
An investigating officer is duty bound to keep a Case Diary (CD) under Section 172 in which day to day proceedings of the investigation is to be recorded in a narrative form mentioning everything  connected with the crime in a chronological order.  However it cannot be used as a substantive piece of evidence of any fact stated in it.
The CD should state the time at which the information reached the police, the places visited, the statements of circumstances ascertained etc, and the time when the investigation was closed. Witness statement need not be included in the diary. The CD must be recorded at the place of investigation itself but not at the end of the day at all.
The court can use CD to aid the inquiry. It helps the court check the method of investigation by the police. The court should not take statements in the diary as material facts. It can use it for knowing the sources and lines of investigation and the names of persons who can give material evidence. The court can use the facts in the diary to seek further clarification from the witnesses as well.
The CD will help the court in knowing the contradictions between the statements recorded in the diary and are given by the police during the proceedings. The officer can refer the diary during the examination in the court to refresh his memory.
The accused or his pleader is not allowed to examine the CD except for some entries which have bearing for the court in contradiction under Section 165 and 145 of the Indian Evidence Act. If the accused were entitled to see the CD, the investigating officer might not record some matters which might be injurious to the prosecution stand. The CD is expected to include anything that is favourable to the accused also, if it is a material fact.
Search by police officer
The investigation officer or Station House Officer (SHO), after recording his reasons which should be sent to the Magistrate later, can conduct search in person or by his subordinate officer when he believes that it is necessary to do so for finding something which is necessary for investigation or such thing cannot be obtained without delay otherwise, under Section 165 of the CrPC. When conducting such a search the procedures prescribed under Section 100 of the CrPC for search of a closed place, which is under the charge of any person, must be followed.
The SHO or investigation officer can ask any other SHO in any other place to conduct search of a place. The officer required to conduct search has to conduct the search by following all the conditions of search stated above. The officer should prepare two copies of the list of all materials taken possession of and provide one copy of it to the owner of the place searched.
When evidence is insufficient
When investigation brings out insufficient evidence against the accused or there is no reasonable suspicion to forward the accused to the Magistrate for trial, the police officer may release the accused after asking him to execute any bond with or without providing sureties
When evidence is sufficient
If investigation brings out sufficient evidence, the police officer should send the accused to the Magistrate empowered to take cognizance of the offence upon a police report and commit him to trial.
The officer should send any weapon or other articles associated with the crime to the Magistrate.
Police Report
On completion of the investigation, the police have to file the report under Section 173(2) of the CrPC.
The report shall contain the following items of information:
a)     the names of the parties
b)    the nature of the information
c)     the names of the persons who appear to have acquainted with the circumstances of the case
d)    whether any offence appears to have been committed and, if so, by whom;
e)     whether the accused has been arrested
f)      whether he has been released on his bond and, if so, whether with or without sureties
g)     whether the accused has been forwarded to custody under Section 170.
h)    whether the report of medical examination of the woman has been attached where investigation relates to an offence under Sections 376, 376A, 376AB, 376B, 376C, 376D, 376DA, 376DB, or 376E of the Indian Penal Code.
Every police investigation shall be completed without unnecessary delay [please see Section 173(1)] but there is no conclusive decision on the time limit for concluding the police investigation. The Magistrate will decide whether the evidence justifies a trial against the accused or not.
Submission of police report under Section 173 (2) is the end of the investigation. It is based on the report that the police officer forms his opinion as to whether there is sufficient evidence or reasonable ground to justify forwarding of the accused before the Magistrate for trial.
Further investigation possible
However, filing of police report does not preclude the police officer from conducting any further investigation under Section 173(8) and filing supplementary report on discovery of fresh facts.
 When the police receive any fresh information not investigated into, they can conduct further investigation on items which have not been covered in the earlier report even though the magistrate had already received police report and had taken cognizance of the offence. The second report should be treated as continuation of the first one.
To conduct further investigation, the police officer exercising statutory jurisdiction under Section 173(8) requires no permission from the judiciary. Even state government can order further investigation by invoking the Section 36 of the CrPC.  Both the exercises are, however, different.
Police investigation starts with what we call first information statement and ends with submission of police report clearly denoting whether to proceed against the accused or not.
The police report should contain not only the facts and circumstances against the accused but those in favour of him, as well. It should be a factual report based on which we build our edifice of prosecution.

First Information Report (FIR) : An Analysis

The First Information Statement (FIS) or First Information Report (FIR) has not been defined in the Criminal Procedural Code, 1973 (CrPC). It is commonly understood as the information received by the police about commission of a crime and recorded under section 154(1) of the CrPC. In fact, it is the information of a crime reported to the police, first in point of time.  
Whether any information received before the police officer is one coming under the section 154(1) is a question of fact. It has to be decided on the merit of its ingredients rather than the discretion of the police officer.
Investigation starts with first information
The registration of a crime in a police station starts with receipt of First Information Statement and its recording in the appropriate register eventually leading to registration of First Information Report. Both terms are interchangeably used in some police manuals and many of the judgments.
First Information Statement means
The FIS precisely means the information, by whomsoever given, to the officer in charge of a police station in relation to the commission of a cognizable offence that reached the police officer first in point of time and on the strength of which the investigation into that offence is commenced.
A cognizable offence means a serious crime in which police can investigate and arrest the accused without any permission from the court. A non-cognizable offence, on the other hand, is the one of less serious nature in which the police have no power to investigate or arrest the accused, without a warrant from the Magistrate.
Who all can file the information?
FIS can be filed before the police, having jurisdiction to investigate the case, by:
·        a victim against whom the offence has been committed,
·        any person who has seen commission of any cognizable offence,
·        anyone who knows about commission of a cognizable offence,
·        any police officer who comes to know about commission of such an offence.
A person who is not even an eye witness to the crime or having no firsthand knowledge of its facts can file an FIS. The information can even be a hearsay statement.
The information thus received has to be entered by the police officer first in a register called General Dairy (GD) or Station Diary. The police should convert the information, if it is oral, into written form, read it over to the informant, and get his signature. This is called First Information Statement (FIS). 
The GD is the record of all types of pertinent information chronologically entered in a station. It is the section 44 of the Police Act of 1861 or the corresponding section in the state’s police act, which introduced the practice of keeping such a general diary.
In Kerala, the police use Kerala Police Form (KPF) No 57 for the purpose, brought into force by section 12 of the Kerala Police Act 2011. The section states, “Every police station shall keep a General Diary in such form as may be fixed by the Government from time to time and record therein the substance of all complaints made, First Information Reports, charges, the names and details of complainants, opposite parties and all arrested persons, the details in respect of the offences charged against them and the properties including weapons that may have been seized from their possession or otherwise.”
Therefore, information on cognizable crimes resulting in FIR/inquiry must meticulously be entered in the GD without any lapse. Delay in registering FIS is fatal. The police cannot at its discretion refuse to register the information relating to commission of a crime.  
The GD is however quite different from the Diary of Proceedings in Investigation (commonly called Case Diary or CD ) to be kept by the investigation officer under section 172(1) of the CrPC.
First Information Report (FIR)
An FIS on a crime reaching the police officer will eventually lead to registration of an FIR. The substance of the FIS will be entered in the FIR book, which is being maintained in the police station in the prescribed format, with crime number and the penal provisions of law. This will turn into First Information Report (FIR). 
It is obligatory for the police to register FIR on receipt of first information disclosing commission of any criminal offence. The First Information Report (FIR), registered on the basis of First Information Statement (FIS) received in the station, is the initial event in the sequence of ensuing actions in the hectic investigation in a criminal case.
The FIR will include the FIR number, date of the crime, time & number of the GD entry etc.  The FIS is the information received in the police station and recorded in the GD register whereas FIR is the report that the police officer records in the FIR book on the basis of FIS itself and sends to the Magistrate.  Therefore, the FIR includes the substance of FIS as an entry of it.
The register commonly called GD is different from FIR book, but its difference with the FIR book is not widely understood. The informant has to sign in the FIR.
A vague first information is not FIR
Any vague and indefinite information given to a police officer cannot be considered as an FIR. The purpose of giving such telephonic message is not to lodge the FIR but to make the police officer reach the place of occurrence of the crime. In such a situation the police officer is required to collect more information before starting investigation. Then the further information given to him would be treated as FIS/FIR.
For example, if a police officer receives information from a person that there was a firing incident in a place, it is not FIR. The police officer should then enter that report in the General Diary and go to the house/location of the informed incident to record a statement. If that statement discloses a cognizable offence, that will become an FIS/FIR.
No piece of information which is vague, indefinite and unauthorized can be recorded as FIS/FIR, merely because it was received first in point of time. The information must relate to the commission of a cognizable offence so as to be considered so.
The Supreme Court says mere information received on phone by police officer without any details regarding identity of accused or nature of injuries caused by victims as well as name of culprits may not be treated as FIR [ please see AIR 2009 SC 1262].
Information an FIR includes
·        The name and address of the accused
·        The facts of the case
·        The date and time of the crime
·        The location where it occurred
·        The name of the person who committed it and his details
·        The items stolen/inquest report /actions so far taken, etc
·        Signature of the informant,etc
Objects of registering FIR
The prime objective of registering FIR at the earliest is to set the criminal process in motion.
The other purposes are to ensure transparency, prevent its well calculated embellishment later, and bring in judicial oversight onto police investigation. It is in fact the first step in making criminal system accessible to a victim so as to forestall any manipulation in its proceedings. 
Providing false information
Lodging false information or causing registration of fake FIR is an offence punishable under section 182 (providing false information to a public servant to cause injury to anybody) and 211 (instituting a false criminal proceedings on another) of the Indian Penal Code (IPC).
FIR not substantive evidence
FIR is not a substantive piece of evidence. But it can be effectively used to corroborate the informant under section 157 or to contradict the informant under section 145 of the Indian Evidence Act. FIR can be used to corroborate or contradict the informant alone, but not the witness.
In case, the first information is given by the accused himself he cannot be put to corroboration or contradiction. The accused cannot be a prosecution witness by law. He would rarely offer to be a defence witness under section 315 of the CrPC too.
If FIR is of a confessional nature it will be hit by section 25 of the evidence act. No confession made to the police officer by an accused shall be proved against an accused. If the FIR is non confessional in nature it may be admissible in evidence as an admission under section 21 of the evidence act.
FIR can be used under section 32(1) or section 8 of the evidence act as to the cause of the informant’s death or the informant’s conduct in regard to the crime, respectively.
Remedies when FIR not registered
Compliant to Superintendent of Police
If an informant is aggrieved by a refusal to record the first information in the GD register leading to registration of FIR, he may send the substance of such information, in writing, by post to the Superintendent of Police, under section 154 (3) of CrPC.
If the Superintendent is satisfied that such information discloses the commission of a cognizable offence he shall investigate the case himself or direct any subordinate to conduct investigation into it, duly after registering an FIR. Such officer will have all the powers of an investigation officer in charge of the police station in regard to that offence.
Superior officer can direct registration
Similarly the police officers superior in rank to the officer in charge of a police station has the authority to exercise the same powers throughout the area to which they are appointed, under section 36 of the CrPC.
Such an officer has the authority to exercise all the powers a Station House Officer (SHO) usually exercises within his station area.
File a complaint to Magistrate
Filing a criminal complaint to Magistrate, under section 200 of the CrPC, is another remedy available to a person.
A magistrate can take cognizance on a complaint on examining the complainant and the witnesses upon oath. The substance of such examination should be reduced to writing and should be signed by the complainant, witnesses and the Magistrate.
If the complaint is in writing, the magistrate need not examine the complaint and the witnesses. Similarly if the complaint is made by a public servant or a court or is transferred from another court, the magistrate need not examine them.
The magistrate on receipt of a complaint may postpone the issue of process and may either inquire into the case, or direct an investigation by a police officer or any other person, so as to decide whether to proceed or not in the case. If it appears to the magistrate that there is no sufficient ground to proceed, he can dismiss the complaint.
FIR need not end up in arrest
The registration of FIR under section 154 fo the CrPC and the arrest of an accused under section 41 of the CrPC are entirely different things. The mandatory registration of FIR need not end up in the mandatory arrest of the accused. There is no need to arrest the accused automatically merely because FIR is registered. The arrest of person and registration of FIR are not directly or irreversibly linked [please see Lalita Kumari v. Govt. of U.P., (2014) 2 SCC 1, for details].
If a police officer misuses the power of arrest in excess of what the Code specifically empowers him, he can be subjected to criminal action and punishment under section 166 of the Indian Penal Code (IPC).  
A police officer can foreclose FIR before investigation, under section 157 of the CrPC, if it appears to him that the case is not of a serious nature and there is no sufficient ground to investigate the crime. The police officer has to report to the Magistrate the reasons for such foreclosure and notify the informant the fact that he will not investigate the case.
FIR helps Magistrate oversee investigation
FIR gives the police unfettered powers to proceed onto investigate any cognizable offence, under section 156 (1) CrPC.  But the provision that the police must send the copy of the FIR to the Magistrate immediately keeps the magistrate informed of the investigation.  Failure to send a copy of FIR is a breach of duty on the part of the police officer. Such an investigation must be looked into with suspicion, the court says.
The lone provision of sending an FIR keeps a Magistrate in the picture at all stages of police investigation. The magistrate therefore can keep a watch on the progress of the investigation and give appropriate directions, under section 159 of CrPC.
The Magistrate however is not authorized to meddle with the police investigation or to specifically direct the police how to conduct the investigation. He gets some authority when the investigation goes beyond the bounds of law.
High Court can quash FIR
The functions of both the police and judiciary are quite complementary. Once an offence is disclosed an investigation into the case must necessary follow. The court will not normally interfere with it. However the court has authority to intervene in the investigation for granting bail or issuing a Writ of Habeas Corpus / Mandamus. It gets authority when there is any visible malafide in the investigative process.
The High Court can stop and quash any investigation,  under section 482 of the CrPC or the Article 226 of the Constitution, when the police start any investigation despite no substance is made out in the FIR or when there is any undue exercise of power or harassment in the investigation.
In short, the First Information Report is a crucial document in the process of criminal investigation in setting its track clear and visible right from the very beginning itself.  Therefore all the stakeholders of criminal justice system need to pay more attention on it.

Will: Its legalities in a nutshell

Will is a legal declaration in the form of a document, expressing the intention of a testator, about how his property would be devolved on whom after his death. It is a personal document of a testator of sound mind, in regard to the disposition of his property in the event of his death. The law authorises any person of full testamentary capacity to dispose of his property by means of a Will.
The legal provisions governing the Will are provided for mainly in Part VI of the Indian Succession Act, 1925. In proving a Will various sections of the Indian Evidence Act, 1872 would apply. 
Testator is a person who makes a Will or testament. The term testator also includes any person appointed by a competent court to administer the estate when the testator does not name an administrator in the Will. The testator of a Will can assign in the Will an administrator (propounder) who has the authority to execute the Will when the testator dies.
Makes pre-planned property devolution
It is always better for a person to make a Will for a pre-planned devolution of his property rather than allow it to devolve based on the law of succession. The Will itself would spell out in what manner the testator wants his property to be dealt with after his death. A Will gets into operation only when the testator dies. But a Will is liable to be revoked or altered by the maker of it at any time when he has competent mental disposition to plan the future devolution of his property.
An insane person when he is undergoing a period of sanity can make a Will. In a state of intoxication or when he does not know what he is doing, a person cannot make a Will.  A testator can both alter and revoke the Will. When he makes a new Will the earlier one will become invalid.
The testator shall either sign or affix his mark to the Will, or get it signed by somebody in his presence by his direction.
Administrator has a role
The administrator of the Will has a prominent part in the execution of the Will. When the administrator is not appointed by the testator the court can issue an authority document called a ‘letter of administration’ to administer the estate, as specified in the Will.
If an executor dies before the Will is administered or when an administrator is not appointed, the ‘letter of administration’ from the court will have to be obtained to deal with the estate.
Will makes no transfer
A Will conceptually does not as such transfer the title of any property to another. A Will does a quite different purpose. It regulates the succession of property in the manner the testator plans.
A transfer of property is not revocable, but a succession plan based on Will is revocable. A Will operates only in the event of the death of a person. Any person who is not a minor and is of sound mind has the authority to create a Will to dispose of his property.
Rudimentary laws on Will existing earlier were consolidated into a proper law by the Indian Succession Act, 1925. Before 1927 any Hindu could make a Will orally.
Testator’s intention paramount
A testator of the Will who has no proper understanding as to the nature of his property or the persons related to him cannot make a valid Will. A person making an instrument considering it as a Will, but without understanding the nature of it cannot be considered a valid Will.
Even if the registration of the instrument had happened without the testator knowing what was being registered then that instrument termed as Will cannot be considered a valid Will. If the registration was done in a cursory manner, the fact that the Will was registered alone is not sufficient to prove the genuineness of the Will.
In interpreting a Will the testator’s intention is to be given effect to. The court must put itself into the armchair of the testator. The true intention of the testator is to be gathered by reading the Will in its entirety and not by attaching importance to isolated expressions.
In a suspicious environment the administrator of a Will is under an obligation to dispel all the suspicious circumstances in which it may be shrouded.
No perpetuity in Will
A Will should not show any perpetuity in taking its effect. When legacy is given in connection with an uncertain event and no time is mentioned in the Will for its occurrence, the legacy cannot take effect. Such a Will engrossed in perpetuity is not a valid Will.
Proving the Will
The mode of proving a Will does not ordinarily differ from that of proving any other document, except as to the special requirement of attestation prescribed in the case of a Will as per section 63 of the Indian Succession Act.
The onus of proving the Will is on the administrator. In the absence of suspicious circumstances surrounding the execution of the Will, the proof of testamentary capacity and signature of the testator as required by law are sufficient to discharge the onus of proving.
Attestation by witnesses
A deed of Will requires to be attested by two or more witnesses. A Will not attested is not a valid Will.
An attesting witness is a person who in the presence of an executant of a document puts his signature or mark on the document so required to be attested. The sign of the witness is an implied acknowledgement by him of the execution of the Will by the testator.
Both the testator and the witnesses affix the sign in the presence of each other. An attesting witness is not expected to be very meticulous of every details of the Will. For due execution of the Will attestation by two or more witnesses is mandatory.
Execution of the Will means not only signing by the person executing the document but also the attestation of his signature by witnesses as such attestation is required by law.
Proving the attestation
As per section 68 of the Indian Evidence Act,  to prove a document  that requires attestation, one attesting witness need to be called in to provide evidence of its proper execution, if he/she is alive. The direct evidence of the attesting witness is primary evidence.
However if no witness is alive then the signatures of the witness and the testator need to be proved by other means in the manner any other document is proved as per the Section 69 of the Indian Evidence Act. In such a case, such a document need to be proved based on the opinion of others who acquainted with the handwriting or signature of the executants (as provided for in section 45 and 47 of the Indian Evidence Act) or by directly comparing the handwriting or signature as the case may be in the Will (as provided in the section 73 of the Indian Evidence Act). Even though expert opinion can be taken to prove a signature, the court itself is sufficiently entitled to make comparison of disputed and admitted signature.
To prove the execution of the Will mere examination of its scribe or proof of his signature is of no much value. It is better for the scribe to sign as an attesting witness rather than its scribe alone. The scribe is not a legal participant in the execution of a Will but the attesting witness is.
If the attesting witness denies or does not recollect execution of the documents its execution need to be proved by other evidence, as per section 71 of the Indian Evidence Act.
In the absence of any suspicious circumstances, the presumption of genuineness of the Will would remain despite the scribe and the witnesses are dead and the Will is not proved by other means.
Administrator must prove Will
As per section 63 of the Indian Succession Act, a person administering the Will need to prove its due execution, attestation and a sound state of mind of the testator in a way he could gather and the nature of the document proposed as a Will.  Ambiguous or mutually contradictory clauses in a Will should be interpreted according to the intention of the testator as testator’s intention is paramount in interpreting a Will.  
When the evidence brought in is disinterested, satisfactory and sufficient to prove the testator’s mind and his signature, it is not possible for the court to disfavour the administrator. If there is suspicion the administrator should explain its circumstances in a convincing manner.
If a Will is registered that is a circumstance to prove the genuineness of the Will. But the mere fact that a Will is registered is not sufficient to dispel all suspicion. If the administrator has taken a prominent part in the execution and has received substantial benefit under the Will that itself is a suspicious circumstance. Such a suspicious circumstance needs to be dispelled by cogent and satisfactory evidence. An unnatural circumstance is a quite suspicious one.
A Will made by fraud, coercion or undue urgency cannot be considered to be a due exercise of free agency of the testator.  Similarly, if the evidence relating to registration of the Will shows that registration was done in such a casual manner then that the Will was registered would not be of much value. If the registration officer does not read the Will over to the testator, or does not bring to his attention that he was engaging in the execution of a Will, then the registration of the Will is a suspicious one. Such a registration has no much value.
The administrator must remove any suspicion relating to the Will by cogent and satisfactory evidence if there are any suspicious circumstances surrounding the execution of a Will. The court would look into the inherent probabilities also while examining surrounding circumstances.
There is no mathematical equation to determine whether a Will is a genuine one or not. The authenticity of a Will depends on the circumstances surrounding its execution and the quality of the evidence that has been brought before the court in respect of its genuineness.
The administrator has to prove the due and valid execution of the Will. The administrator has also to prove that the testator was in sound state of mind, he understood the nature and effect of the disposition, and put his signature to the document of his own free Will.
Will is a solemn document executed by a person for planned disposition of his property after his death. If the Will is properly executed it would prevent many future clashes and court cases in regard to ownership of property.
In the absence of any suspicious circumstances, the presumption of genuineness of the Will would remain undisputed despite there are some negligible infirmities.
Important case laws on Will
The judgment says that the attesting witness must sign the document and cannot delegate the function to another person.
2.     Jagdish Chand Sharma v Narain Singh Saini [AIR 2015 SC 2149]
The witness must see or be knowledgeable of the testator signing the Will.
3.     Veerattalingam & others v Ramesh & others [AIR 1990 SC 2201]
The Will must be construed as a whole and not piecemeal.
4.     N.Krishnammal v R. Ekambaram & ors [AIR 1979 SC 1298]
Will written in non-legal language must be construed in the legal sense of the term.
Sub-Registrar’s endorsement that the executants had acknowledged execution before him amounts to attestation
6.     Janki Narayan Bhoir v Narayan Namdeo Kadam [AIR 2003 SC 761]
An attesting whiteness, if he is alive, must be examined so as to prove the Will. If the witness is not alive other means can be explored to prove it.