Report No. 37
421. Section 157.-
In section 157, it is desirable to substitute, for the words "police report", the words "report in writing made by a police officer".1
1. Cf discussion regarding section 4(1)-definition of "complaint".
422. Section 157 and investigation in area of other police stations.-
With reference to section 157, a suggestion has been made for inserting a provision regarding investigation by a police officer in the area of other police stations.1 We think, however, that the provisions of sections 160, 161 and 166 are adequate, and no further addition is required.
1. F. 27(3)/55-Judl. II (Home Ministry File), Appendix I, Item No. 27.
423. Section 158(2).-
It has been suggested1 that a provision should be inserted in section 158(2) to the effect that "instructions" under the section include instructions to investigate. No such verbal change is necessary, as the language of section 158(2) is wide enough.
1. F. 27(3)/55-Judl. II (Home Ministry File), Appendix I, Item No. 28.
424. Section 159.- No change is needed in section 159.
425. Section 160 and expenses.-
In section 160, a provision for the payment of expenses of witnesses ought, in our view, to be made.
On principle, it is difficult to understand why witnesses who are asked by the State to help the administration of justice by attendance in a Court should be compensated by cost,1 while those who are obliged, under penal sanction, to attend an investigation before the police for the same purpose should be treated differently.
We recommend, that a suitable amendment be made in this respect.
1. Section 544.
426. Section 160 and attendance of women.-
It has been suggested1 that the proviso regarding women should be removed from section 160. We are unable to accept the suggestion, having regard to the fact that the proviso contains a salutary provision.
We would, in this connection, refer to the observations made by the Calcutta High Court2 while reversing the dismissal of a complaint against certain police officers to the effect that they had mal-treated a number of women. "We would wish to point out that it seems to us an unusual course that the police should take a number of women away from their village to the police station on the pretext that they wished to examine them. It seems to us the examination might have been as well conducted at the women's own houses as at the police station, and have at the same time prevented the possibility of any such charges as have been now preferred against the Police."
1. F. 3(2)/55-L.C., Pt. I, S. No. 17.
2. Haladhar v. Sub-Inspector of Police, (1904) 9 CWN 199 (201) (Haringoton & Pargither JJ.).
427. Section 160 and requiring attendance for identification.-
It has been stated,1 that under section 160 a police officer can require the attendance before himself of witnesses acquainted with the circumstances of the case under his investigation. The proviso to this section, however, states that no male person under the age of 15 years or woman shall be required to attend at any place other than the place in which such male person or woman resides. The investigating officers in U.P., it is stated, were expressing difficulties, particularly in identificationa proceedings.
The Inspector General of Police, Uttar Pradesh, appointed a Departmental Committee to go into the whole matter. The Committee suggested to the U.P. Government amendment of section 160. The U.P. Government has, accordingly recommended, that the existing section 160 should be re-numbered as sub-section (1), and the following sub-section (2) should be inserted in section 160.
"(2) Any police officer making an investigation under this Chapter may also, by order in writing, require the attendance of any person before a Magistrate conducting identification proceeding of any property or person in connection with the investigation of the case, on the date, time and place mentioned in the order."
We have considered the suggestion.
We may state here, that the proviso to section 160 was inserted in 1955. But, even under the section as it stood before 1955, a witness could not be forced by the police to appear before a Magistrate.2
The amendment of 1955 has not made any change in this respect. Nor are we inclined to amend the section as suggested.
1. F. 3(2)/55-L.C., Pt. VII, S. No. 429, Suggestion of the Government of U.P.
2. Emp. v. Neni Sheikh, ILR 29 Cal 483.
428. Section 160 and applicability of section 160 to the accused.-
With reference to section 160, it has been suggested1 that in the marginal note, the word "person" be substituted for the word "witness". The suggestion really raises a large question, namely, whether sections 140 and 161 apply to the accused.
1. 3(2)/55-L.C., Pt. I, S. No. 83 and F. 3(2)/55-L.C., Pt. IL S. No. 34(d) (Suggestion of a D.I.G. Police).
429. The question (whether sections 160 and 161 apply to the accused) is an interesting one. Before answering it, it will be desirable to point out three meanings of the word "accused", in this context. The word "accused" may mean
(i) a person who is suspected, but not yet arrested;
(ii) a person who is suspected, and about whom the police have reasonable grounds to believe that he has committed the offence but who is not yet arrested; and
(iii) a person who has been arrested.
430. It has been held by the Privy Council,1 that section 162 applies to the accused. In the course of the discussion, the Privy Council referred to "group of sections" beginning with sections 160, 161.
But the question whether sections 160 and 161 apply to the accused, was not directly in issue before the Privy Council.
In a Nagpur case,2 it was held, that section 161 applies to a person who may subsequently become the accused, and also that police officers were fully authorised to require the personal attendance of the suspects during the investigation and that absence of an order under section 160 was an irregularity, which would have justified the failure or refusal of the suspects to obey the order, but which could be waived by them.
1. Narsinaswami v. Emperor.
2. Dina Natha (in re:), AIR 1940 Nag 186 (189) (Niyogi J.).
431. There are, however, certain questions to be considered before assuming that section 160 applies to person suspected but not arrested. Can they be described as persons "acquainted with the circumstances of the case ?" The discussion in a Madras case1 shows the difficulty of the subject-matter, because, so far as accused persons are concerned, the police can secure the presence of such person in other ways.2-4 It was also pointed out by Waller J.5 that the language of section 161 seemed to be quite irreconcilable with the idea that it could be concerned with accused persons. Persons examined under section 161 were bound to answer all questions other than questions which would expose them to a criminal charge.
"How can all this refer to an accused person ? He is already the subject of a criminal charge, in respect of which the questions would be put to him." In fact, he pointed out, previously the law went so far as to require that the questions should be truly answered-which showed that section 161 did not apply to the accused. While the actual decision in this Madras case has (so far as section 162 is concerned) lost its value after the Privy Council decision,6 the other points have not been settled by the Privy Council.
1. Syamo Maha Patro v. Emp., AIR 1932 Mad 391 (393, 394, 398, 400, 402).
2. See the judgment of Reilly J. in Syamo Mahn Patro, AIR 1932 Mad 391 (394) right-hand, and judgment of Sundaram Ghetty J., p. 400.
3. See Q.E. v. Saminada Chetti, 1883 ILR 7 Mad 274 (PB).
4. See also Emp. v. Ratan, (1902) 4 Bom LR 644 (Crown and Ashton H.), agreeing with Saminada Chetti, ILR 7 Mad 274.
5. AIR 1932 Mad 391 (403).
6. Narainaswami, AIR 1939 PC 47.
432. On the other hand, however, a narrow construction of sections 160 and 161 leads to one practical difficulty, as there is no other section under which the police can examine the accused.
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