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.
Conclusion
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.

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