Role of Police and Their Power to Investigate under Criminal Procedure Code, 1973

Prefix 1973, Criminal Procedure Code, Role of Police in Investigation

The author of this article is Jisha J S, an LLM student of Govt. law college, Thiruvananthapuram. She is also a Participant in Teachers Development Program (TDP) conducted by LJRF (https://ljrf.in). The article discusses the role of Police and their power to investigate under CrPC, 1973.

INTRODUCTION

India is a developing country, no development can be achieved in the absence of peace and tranquility. Police are one of the vital law enforcing agencies. It is a machinery to maintain peace and tranquility and the responsibility to maintain the law and order lies with the State Government. Hence it is necessary to have a well maintained police force at the state level¹.

Under the Indian Constitution, Police is a subject governed by states. According to the preamble of Police Act, 1861 “the police officer is an instrument for the prevention and detection of crime. The overall administration of the police is vested in hands of the state. Police department comes under the control of the home ministry of the state. The head of the overall police department in the state is Director-General of police and in every district it vests with the District-superintendent of police. Whereas in cities or metropolitan areas it is the commissioner of police who takes charge of overall administration. Police department plays an important role in maintaining peace and order.

ROLE OF POLICE:

Police play a crucial role in combating crime, preserving peace, and maintaining public order. They basically play a dual role while maintaining law and order of any state. They also control illegal activities and sale of illegal articles to which many people fall prey and destroy their life. The role of the police officers in nutshell are:

To prevent crimes
To protect public properties
To promote and preserve public order
To maintain law and order.
To prevent and control terrorist activities.
To protect internal security
To prevent commission of any cognizable offences
To accurately register complaint brought by complainant
To register Zero FIR and not to just deny the person to lodge the complaint just because the place where offence was committed doesn’t comes under their jurisdiction
Preserve, promote and protect human rights and interest of weaker section, backward classes.
To take preventive action but a police must not exercise this power arbitrarily.
To do patrolling and prohibit sale of illegal articles.
VIP security and performance of various duties while visit of any VIP.²

Power of the police to investigate

The chapter XII of the Criminal Procedure Code, 1973 includes in it the power of the police to investigate and all the necessary information regarding the same.

The power of investigation by police may start:

Where FIR is given under section 154 CrPC; or

Where the police officer has otherwise reason to suspect the commission of a cognizable offence [ S. 157(1) & 156(1) CrPC ] or

Where a competent Magistrate orders the police under Section 156(3) without taking cognizance of the offence on a complaint under section 200.

After taking cognizance of the offence on a complaint for the purpose of deciding as to the issue of process against the accused. [S.202(1) & S.203 CrPC]³

Power to investigate in cases of non-cognizable offences

A magistrate under certain circumstances can also order a police officer in charge of a police station to investigate a cognizable or even a non- cognizable case. Where a Magistrate under section 155(2) gives an order to a police officer to investigate a non-cognizable offence, the police officer who receiving such order may exercise the same powers in respect of the investigation except the power to arrest without warrant which he do in a cognizable case.⁴

Procedure to investigate in case of a cognizable offence

In case of cognizable offences, the investigation is initiated by the giving of information under section 154 CrPC to a police officer in charge of a police station. Police officer’s power to investigate a cognizable offence is given under section 156 crPC. Any police officer without the order of a magistrate can investigate any cognizable case. According to section 156(3) CrPC any magistrate empowered under section 190 Crpc can order a police officer in charge of a police station to investigate any cognizable offence. Section 190 empowers magistrate to take cognizance upon receiving any complaint or upon police report (challan) or upon information received from any person other than police officer who is having knowledge that such offence is committed.⁵

Procedure for investigation

Section 157 of the Code establishes the procedure to be followed for investigation. The section requires that immediate intimation of every complaint or information referred to an officer in charge of a police station of the commission of a cognizable offence shall be sent to the Magistrate having jurisdiction.⁶ A police officer as soon as he receives information or has reasons to suspect the commission of any cognizable offence is required to report the Magistrate who has the jurisdiction to try such cases. The Magistrate is empowered to take the cognizance of such offence and order any subordinate officer to investigate the spot, facts and circumstances of the case and take necessary measures for the discovery and the arrest of the accused. The report is sent to the Magistrate to keep him abreast of the investigation so he may give appropriate directions.

Section 157 requires a police officer to ‘forthwith a report’ which signifies that the report has to be sent without any unreasonable delay. Delay does not render the case doubtful but would put the Court on guard.

This section initiates the investigation. The investigation includes all proceedings under the Code for the collection of evidence conducted by a police officer or by any person other than a Magistrate, who is authorized by the Magistrate in this behalf. In Kari Chaudhary v. Sita Devi,⁷ it was held that the object of investigation is to find out whether the alleged offence has in fact been committed, and, if so, who have committed them. However, where there is the commission of any offence which is not of serious nature there is no need to proceed with the investigation on the spot. Also, where it appears to the police officer that there is no sufficient reason for the investigation, he shall not proceed with it. All such information is required to be mentioned by the police officer furnishing the report that he will not conduct any investigation.

Further, in case of rape offence, the recording of the statement of the victim shall be recorded by a woman police officer. All such statements shall be recorded at the residence of the victim or the place of her choice and in the presence of his parents or guardian or near relatives or social worker.⁸

Power of police to require attendance of witnesses:

In the course of crime investigation, the police may secure the attendance of persons who can supply necessary information regarding the commission of the offence. The investigating officer should issue a written order addressed to the person whose presence is sought specifying date, time and place where he has to appear for interrogation.

But a male under the age of fifteen years or a woman cannot be required to attend at any place other than the place where he or she resides. An order directing a woman to appear in police station is violative of Section 160 (1) of the Code.The Supreme Court in Nandini Satpathy v. P. L. Dani and another⁹, with respect to this provision observed:

“A higher level police officer, ignorantly insisting on a woman appearing at the police station in flagrant contravention of the wholesome proviso to Section 160 (1) of the Cr. P. C. Such deviance must be visited with prompt punishment since policemen may not be a law unto themselves expecting others to obey the law….. There is public policy, not complimentary to the police personnel, behind this legislative prescription which keeps juveniles and females from police company except at the former’s safe residence.

Any person required by the investigating police officer to attend in connection with the investigation of a cognizable offence is under a legal duty to comply with the order issued under Section 160 (1). A person willfully or intentionally omitting to attend is liable to be punished under Section 174 IPC. But the police officer has no authority to use force to compel attendance of such a person, nor can he arrest or detain such a witness. So also, a Magistrate has no power to issue any process compelling a person to appear before a police officer.

In Kamalanantha v. State of Tamil Nadu,¹⁰ the Godman was charged of raping girl inmates of his Ashram. The accused was in dominion control of the Ashram and had threatened victims with dire consequences in the event of disclosure. The Apex Court held that in such circumstances Ashram could not be placed for the purpose of Section 160, Cr. P.C. Therefore, the victim girls were rightly examined and interrogated in the women police stations. They were removed from the Ashram to erase fear psychosis from their minds.

The High Court of Bombay in Arun Gulab Gavali v. State of Maharashtra, ¹¹held that investigating machinery could require even a witness to appear at different places where investigation is required to be carried out and the persons called upon to assist investigation machinery could not refuse to go to such place on ground that it amounted to denial of his right of personal liberty.

The proviso to Section 160 (1) also applies to Army officers under the Armed Forces (Special Powers) Act, 1958 and therefore, an Army official cannot take the woman offender to the Army camp for interrogation and she can be interrogated only at the place of her residence as provided under Section 160 (1) of the Code¹¹.

Examination of witnesses by police

Section 161 Code of Criminal Procedure, 1973 headed as “Examination of witnesses by police” provides for oral examination of a person by any investigating officer when such person is supposed to be acquainted with the facts and circumstances of the case. The purpose for and the manner in which the police statement recorded under Section 161 can be used at any trial are indicated in Section 162.

The object of section 161 is to obtain evidence which may later be produced at the trial. In case of trial before a court of session or in case of trial of a warrant-case, a charge maybe framed against the accused on the basis of the statement recorded by the police u/s 161.¹²

This section empowers the police to examine witnesses during the course of an investigation. Any person who is supposed to be acquainted with the facts and circumstances of the case may be examined orally. S. 161 (2) provides that persons being examined are required to truthfully answer all questions posed to them, excluding those which make her liable for a criminal charge or to pay a penalty. S.161 (3) lays down that the investigating officer (I.O.) may make a written note of the statement of the person.

The Criminal Procedure (Amendment) Act, 2008, introduced a proviso to S. 161 (3) which states that the “statement may be recorded by audio-video electronic means”. The usage of the term ‘may’ in S. 161 (1), S. 161 (3) and proviso to S. 161 (3) indicates that it is the police officer’s discretion to note down or record the statement of the witnesses.

It is a well settled principle in law that the statements recorded (either in writing or by audio-video or electronic means) under S. 161 of the CrPC cannot be treated as admissible evidence in Court¹⁴. It is only used to the limited extent of proving a contradiction within the meaning of S. 145 of the Indian Evidence Act, 1872 or for the purpose of cross-examining of the witness by the prosecution or for re-examining the witness.¹⁵

By the amendment act 2013 it was stated that the statement of a woman against whom an offence under S. 354, S. 354-A, 354-B, 354-C, 354-D or section 376, 376-A, 376-B, 376-C, 376-D, 376-E or Section 509 is alleged to have been committed or attempted shall be recorded by a woman police officer.¹⁶

Power to submit charge sheet after completing investigation under section 173:

Police submits a charge sheet after completion of investigation. It consists of FIR copy , statement of complainant/ informant, statement of witness, panchas, panchnama, dying declaration, recovery of articles, etc.

Other powers of police under CrPC:

Medical examination of the victim of rape
Search by police officer

Police seek police custody under section 167 when investigation is not completed within 24 hours. Police custody is given maximum up to 15 days. This is called police custody.
The magistrate may authorize the detention of the accused person otherwise than in the custody of police beyond the period of 15 days,if he is satisfied that adequate grounds exist but the detention should not exceed 90 days where the investigation relates to an offence punishable with death, life imprisonment, or 10 years imprisonment and detention should also not exceed 60 days in case of other offences.
On the expiry of said period of 90 days or 60 days the accused shall be released on bail if he is prepared to and does furnish bail.
Police can release the accused when evidence is deficient as per section 169 CrPC.
Police power to inquire and report on suicide is given in section 174.¹⁷

CONCLUSION

The powers of the police have been systematically listed out in the Criminal Procedure Code, 1973. The procedure of investigation as well as the method in which an investigation must be followed by the police while handling the case has been provide under the code. The police may have certain discretionary powers while carrying out any investigation, there also exists certain areas wherein the police in the name of investigation arbitrarily misuse their powers and harass the accused and innocent people. Even though rules and procedures regarding the investigation are listed properly, many times the investigation is not carried in the proper manner. Sometimes due to the political and executive interference,the police neglect the actual duties as per the law but are involved in the service of the ruling party leaders.

The police must remember that they are servants of the public like other civil servants. They must serve the people according to the established law and procedures.