Report No. 41
Information to The Police and Their Powers to Investigate
14.1. Scheme of Chapter.-
Chapter XIV deals with police investigation in all its aspects from the moment when the information about the commission of an offence is received at the statio.-house to the stage when the police complete the investigation and send a final report to the Magistrate. A sharp distinction is drawn right at the beginning of the Chapter between cognizable cases and no.-cognizable cases. The latter may be investigated by the police only on the orders of a Magistrate. If a person goes to the statio.-house with a report about a no.-cognizable offence, the polic.-officer has to advise him to lodge a complaint before a Magistrate.
If the information indicates the commission of a cognizable offence, investigation can commence without the orders of a Magistrate, but the investigation officer has to send a report about it to the Magistrate. If the offence does not appear to be serious and if the statio.-hous.-officer thinks there is no sufficient ground for starting an investigation, he need not investigate but, here again, he has to send a report to the Magistrate who can direct the police to investigate, or if the Magistrate thinks fit, hold an inquiry himself.
During investigation, the polic.-officer has the power to require the attendance of witnesses before him and to put questions to them which they are bound to answer. He has also the power to send any witness he likes before a Magistrate and have his statement recorded on oath. The polic.-officer has the power to search any place and seize anything material found at the place. In such a case he must prepare on the spot a list of the articles seized and send a copy of the list to the Magistrate. If as a result of his investigation the polic.-officer arrests any person, he must have that person presented before a Magistrate within 24 hours and thereafter the custody of the arrested person will be under the control of the Magistrate.
14.2. Function of Magistrate during investigation.-
A noticeable feature of the scheme as outlined above is that a Magistrate is kept in the picture at all stages of the police investigation, but he is not authorised to interfere with the actual investigation or to direct the police how that investigation is to be conducted. This demarcation of functions between the police and the magistracy at the investigation stage has been clearly laid down by the Privy Council in Khwaja Nazir Ahmed's case AIR 1945 PC 18. It would appear that the power to "direct an investigation" under section 159 should be resorted to by a Magistrate only when he found that the police had desisted from investigation on insufficient grounds and felt that further investigation was likely to produce results.
Following the decision of the Privy Council just cited, it has been held by the Supreme Court2 "that the formation of the opinion as to whether or not there is a case to place the accused for trial is that of the office.-i.-charge of the police station and that opinion determines whether the report (on completion of investigation) is to be under section 170, being a 'charg.-sheet' or under section 169, a 'final report'."
This arrangement seems to us to be basically sound and we do not think there is anything to be gained by giving the Magistrate further powers of supervision and control over the police during investigation.
1. Abhinandan Jha v. Dinesh Mishra, (1967) 3 SCR 668 (678).
14.3. Section 15.-copy of first information report to be given to informant.-
Section 154 regulates the manner of recording the first information relating to the commission of a cognizable offence. After the information has been reduced into writing by the statio.-hous.-officer, it has to be read over to the informant and his signature obtained on it. Under the law however the informant is not entitled to get a copy of the report then and there. In some of the States, police rules require a copy of the first information report to be given to the informant. We consider this a healthy practice and propose that it should be placed on a statutory basis by adding the following su.-section to section 154.-
"(2) A copy of the information as recorded under su.-section (1) shall be given forthwith, free of cost, to the informant."
14.4. Section 155(1.-no amendment needed.-
Section 155(1) requires that if the information given to a polic.-officer is about a no.-cognizable offence, he must enter the substance of such information in a book and "refer the informant to the Magistrate". In the earlier Report,1 the Commission recommended that the words "having jurisdiction" should be added after the word "Magistrate". We feel, however, that this addition is not necessary and the amendment will not be of any practical assistance to the informant who will, in any event, have to find out for himself which particular Magistrate has jurisdiction to deal with his complaint.
1. 37th Report, para. 413.
14.5. Case relating to a cognizable and a no.-cognizable of fence.-
A no.-cognizable offence can be investigated by the police on the orders of a Magistrate, and once such an order is given a police officer has in that investigation the same powers as he has while investigating a cognizable offence. Cases often occur when during the investigation of a cognizable offence it appears that a no.-cognizable offence also has been committed and the question then arises whether the investigation can proceed without a Magistrate's order. The Commission recommended in the earlier Report1 that it should be made clear that the investigation can proceed in respect of both offences and suggested adding an explanation to section 155. We entirely agree with this recommendation, but propose a separate section 156A for this purpose as being more suitable. The section may be as follows.-
"156A. Case cognizable when it relates to cognizable and no.-cognizable offences.-Where a case relates to two or more offences of which at least one is cognizable, the case shall, for the purposes of sections 154, 155 and 156, be deemed t.-be a cognizable case, notwithstanding that the rest of the offences are no.-cognizable."
1. 37th Report, para. 415.
14.6. Sections 157 to 159.- Sections 157, 158 and 159 do not call for any comments or amendments.
14.6a. Section 160.-
Under section 160 the investigating polic.-officer may require the attendance of witnesses before himself. In the earlier Report,1 the Commission recommended that a witness summoned by the police should be paid his reasonable expenses. We agree and propose the addition of the following su.-section.-
"(2) Subject to any rules made by the State Government, the reasonable expenses of any person attending in compliance with an order under su.-section (1) at a place other than his residence shall be paid to him by the police."
1. 37th Report, para. 425.
14.7. Sections 161, 16.- General.-
Sections 161 and 162, dealing with the oral examination of witnesses by the police, the record to be made of their statements and the use to which it may be put subsequently, form the crux of this Chapter. They have attracted a variety of comments and a variety of suggestions. We regret that, in spite of earnest and prolonged discussion, we have not been able to agree among ourselves as to how best these sections could be modified or altered.
Section 161 empowers an investigation officer to examine orally any person acquainted with the facts and circumstances of the case. That person is bound to answer all questions concerning the case except those which tend to incriminate himself. The investigating officer is permitted, but not obliged, to reduce into writing any statement made to him; and if he does so, he must make a separate record of the statement of each witness. Section 162 then says that the recorded statement must not be signed by the witness, and the statement so recorded cannot be used for any purpose other than contradicting the person making it if he appears to give evidence as a prosecution witness.
14.8. Discretion to record examination of witnes.- Commission's former views.-
In a previous Report,1 the Commission expressed the view that the discretion allowed to a polic.-officer to record or not to record the statement of a witness orally examined by him is in such unrestricted terms that the whole purpose of section 173 (which requires copies of such recorded statements to be given to the accused) could be defeated by a negligent or a dishonest polic.-officer. It therefore recommended that the polic.-officer should be obliged by law to reduce to writing the statement of every witness whom the prosecution propose to examine at the trial. This view was accepted in the 37th Report of the Commission,2 but its recommendation went further to suggest that the statement of every witness questioned by the police under section 161 must be recorded.
1. 14th Report, Vol. 2.
2. 37th Report, para. 437(b).
14.9. Present view of Commission that discretion should not be fettered.-
It is of course true that the discretion allowed to a polic.-officer to record, or not to record, any statement made to him during investigation is expressed in absolute terms. Such wide discretion naturally attract.- suspicion. We can therefore readily understand why the previous Reports suggested some limitation which would help to guide the exercise of this discretion. When, however, we come to consider the concrete situation with which the law here seeks to deal, we find that there is for practical purposes no point in imposing a restriction on the judgment of the investigating officer.
The reason is this: A polic.-officer investigating a crime has to question, and then to examine orally, a, large number of persons, many of whom may have no useful information to give and much of the information is later found to be pointless. It would be too great a burden on him if he should be required by law to reduce into writing every statement made to him; nor would it serve any purpose apart from distracting attention from the main task.
It was for this reason, we think, that the Law Commission suggested, in the earlier Report1, that the statement of only those persons whom the prosecution proposed to produce at the trial need be recorded. Even this requirement seems to us to be unworkable. The investigator does not always know what the result of his investigation is going to be; nor does he necessarily know who will be produced at the trial. The proposed guideline is not therefore a helpful guide, and we would hesitate to suggest it as such. Our view is that there is no need to place any fetter on the discretion of the polic.-officer at the stage of investigation.
This discretion is, in practice, not capable of being abused, nor have we heard any complaint that it is being abused. There has been no lack of complaint that the record prepared by the investigating officer is not accurate, but no serious complaint that the statements of material witnesses are not recorded. Here again, we think the reason is simple. A polic.-officer can, without contravening the law, omit to record the statement of every important witness orally examined by him, but such an officer will not, we think, stay long in the police force. His superior officers will, in every case, see to it that his reports are informative enough for them to judge how the investigation is proceeding.
Any apprehension, therefore, that because of negligence or dishonesty a polic.-officer may misuse his discretion in this connection, does not appear wel.-founded in practice, however plausible it may appear on theoretical considerations. We feel it is better to leave it to the investigating officer to record only what, in his judgment, is worth recording and leave the rest to departmental instructions and supervision. The permissive and discretionary provisions now contained is section 161 ["may examine orally" in su.-section (1) and "may reduce into writing" in su.-section (2)] should 'not be fettered down in any way.
1. 14the Report, Vol. 2.
14.10. Section 161(2.- witness bound to answer truly..-
Su.-section (2) of section 161 requires every person examined by the polic.-officer to answer every question put to him. The su.-section, however, avoids saying that the person examined must answer those questions "truly". There is, thus, at that stage, no legal obligation to speak the truth as there is later in Court. The reason for this curious attitude of the law in this respect was explained by the Select Committee in 1898 in these words1.-
"We have amended that clause by reverting to the law as it stood under the Codes of 1861 and 1872. Under these Codes a person examined by a polic.-officer was bound to answer all material questions, but2 was not liable to be prosecuted for giving false evidence in respect of his answers under sections 193 of the Indian Penal Code. It seems to us unfair that a man should be liable to be convicted of giving false evidence on the strength, or by the aid, of a statement supposed to have been given to a polic.-officer, but which is not given on oath, which he has not signed and which he has had no opportunity of verifying.
Such statements may be hurriedly taken down as rough notes, as the polic.-officer is not trained in taking evidence, and the notes are often faired out by another officer. They bear no resemblance to depositions and ought to have no weight as such attached to them. We are aware that there are inconveniences in abolishing the direct liability for giving false evidence to the police, but the balance of expediency seems to us to be in favour of the old law. The provisions of sections 202 and 203, Indian Penal Code, appear to us to afford a sufficient safeguard against false information."
The Law Commission dealt with this matter in a previous Report3 and, although feeling that the absence of the word "truly" virtually suggests that the "version of the witnesses need not be the true one", still thought that going back to the position as in 1882 was not wholly desirable as it might lead to numerous prosecutions of witnesses for making false statements to the police. The same view was accepted by the Commission in the 37th Report4.
We recognise that a legal obligation to speak the truth carries with it the liability to punishment if the truth is not spoken. We think, however, that this is how it should be. If it is necessary to provide that information must be supplied by every person questioned by the police, the law must also require that the information is not false or misleading. There seems no point in saying to every citizen in clear terms that he must answer every question put to him by the police but need not tell the truth.
We are, in this connection, not unmindful of the practical aspect of the matter. In the Legislature's mind in 1898 the apprehension was that prosecutions for making a false statement to the police might be numerous and they would be unfair if based mainly on the police record of the statement, which record will not have been prepared with great care. We do not know if this had actually happened during the years 1882 and 1898; but we have no reason to think that it would happen in 1969. Prosecutions for giving false evidence in Court are rare enough, and their successful termination rarer still. The same reasons will operate more effectively to inhibit prosecutions for making false statements to the police.
The Delhi Police Commission headed by a retired Chief Justice has suggested5 that the word "truly" should be put back in section 161. Similarly, a recent Seminar6 on Criminal Law which, although organised by a wing of the police, was attended by a number of judges and jurists from all over the country, made the same recommendation. We strongly feel that the law should not be so framed as to give the impression that a person appearing before a competent authority is free to tell lies. We, therefore, propose that in section 161(2), the word "truly" be inserted after the words "bound to answer."
1. Report of the Select Committee, dated 1.-.-1898.
2. See Kassim Ali, 1879 ILR 7 Cal 121: ILR 10 Cal 405.
3. 14th Report, Vol. 2.
4. 37th Report, para. 435 and Appendix 11.
5. Report of the Delhi Police Commission, (1968), Vol. 1, p. 175, paras. 2.-28.
6. Seminar on Criminal Law and Contemporary Social Change (8th to 10th May, 196.- New Delhi) Report of Study Group D.