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Published by Enhelion, 2020-01-15 02:16:23

Module 14

Module 14




Before entering into the details of the criminal legal process, let us briefly examine the various
stages within the process in a chronological order. The structure of the Code is not in this order,
therefore it is helpful to understand the practical reality of proceedings.

[Sec. 154 – 159] Firstly, a criminal trial will begin with the filing of a police complaint to initiate
an investigation. A complainant must give the complaint to the police which is oral, or written by
the authority. If this police complaint is cognizable, the details of the complaint are filed within a
register, and the police officer may proceed with an investigation. A complaint which is non-
cognizable is forwarded to the magistrate who is required to give an order to the police on
whether to proceed with the investigation or not. There are remedies within the Code if the
complaint is not accepted.

[s.40 – 105] Once the police open investigation, there are various legal devices that the police
authorities may employ to facilitate their investigation. These include processes of arrest,
summons, warrants, proclamation, remand, inquest-proceedings, search-warrants, etc. so as to
gather the appropriate evidence to proceed with trial.

[s.173 – 224] Once the appropriate evidence is gathered, it is submitted to a magistrate along
with a charge sheet (all the charges the police authorities see as relevant), and the magistrate then
decides whether to forward the complaint to the appropriate trial court, i.e. the magistrate either
takes cognizance of the offence or it does not. If it does, then it also frames the charges that the
accused will be tried for within the trial court. Note that the cognizance-taking court (the
magistrate in most cases) is theoretically separate from the trial court. The former is an
intermediary. It serves as a check so that charge sheets which are frivolous are dismissed, and
ensures that the charges raised by the police are in fact the correct charges on the facts of the
case. The case is then transferred to the trial court which examines the evidence in order to
ascertain guilt of the accused.

[S. 225 onwards] Once this is completed, the trial proceeds in the respective court. The CrPC
sets out different procedures for the different courts.
[Ch. 33] Bail provisions are operative throughout the investigation and trial process and apply
wherever anyone is taken into custody.

Section 2 (d): “complaint” means any allegation made orally or in writing to a
Magistrate, with a view to his taking action under this Code, that some person, whether
known or unknown, has committed an offence, but does not include a police report.
Explanation. – A report made by a police officer in a case which discloses, after
investigation, the commission of a non-cognizable offence shall be deemed to be a
complainant, and the police officer by whom such report is made, shall be deemed to be
the complainant.

“The scheme underlying the Code of Criminal Procedure clearly reveals that anyone who wants
to give information of an offence may either approach the Magistrate or the officer in charge of
a police station.”
- A.R. Antulay vs. R.S. Nayak (1984 ) 2 SCC 500

Section 204:(1) If in the opinion of a Magistrate taking cognizance of an offence there is
sufficient ground for proceeding, and the case appears to be- (a) A summons-case, he
shall issue his summons for the attendance of the accused, or (b) A warrant-case, he may
issue a warrant, or, if he thinks fit, a summons, for causing the accused to be brought or
to appear at a certain time before such Magistrate or (if he has no jurisdiction himself)
some other Magistrate having jurisdiction.


The expression “sufficient ground” used in Section 204 of the Code means that the Magistrate
must be satisfied that a prima facie case has been made out against the person accused of
committing the offence. The Magistrate need not be satisfied that the available evidence would
lead to a conviction. The Magistrate does not have to give reasons as to why he/she is accepting
one witness’s version over the other’s in making a determination as to whether there is a prima
facie case. If there is no prima facie case, Magistrate may dismiss the complaint but it is
mandatory to record the reasons for doing so.

Section 62: (1) Every summons shall be served by a police officer, or subject to such
rules as the State Government may make in this behalf, by an officer of the court issuing
it or other public servant.
(2) The summons shall, if practicable, be served personally on the person summoned, by
delivering or tendering to him one of the duplicates of the summons.

(3) Every person on whom a summons is so served shall, if so required by the serving
officer, sign a receipt therefor on the back of the other duplicate.

Section 64: Service when persons summoned cannot be found. Where the person
summoned cannot, by the exercise of due diligence be found, the summons may be served
by leaving one of the duplicates for him with some adult male member of his family
residing with him, and the person with whom the summons is so left shall, if so required
by the serving officer, sign a receipt therefor on the back of the other duplicate.
Section 65: Procedure when service cannot be effected as before provided. If service
cannot by the exercise of due diligence be effected as provided in section 62…the serving
officer shall affix one of the duplicates of the summons to some conspicuous part of the
house or homestead in which the person summoned ordinarily resides, and thereupon the
court, after making such inquiries as it thinks fit, may either declare that the summons
has been duly served or order fresh service in such manner as it considers proper.


Section 87: A court may, in any case in which it is empowered by this Code to issue a
summons for the appearance of any person, issue, after recording its reasons in writing,
a warrant for his arrest-

(a) if either before the issue of summons, or after the issue of the same but before time
fixed for his appearance, the court sees reason to believe that he has absconded or
will not obey the summons; or

(b) if, at such time he fails to appear and the summons is proved to have been duly served
in time to admit of his appearing in accordance therewith and no reasonable excuse
is offered for such failure

Nothing in Section 204 is deemed to affect the provisions of Section 87. While in a summons
case the Magistrate concerned shall issue a summons, in a warrant case he may issue a warrant or
(if he thinks fit) a summons. The power to issue warrant is discretionary, but Magistrate must
record reasons for issuing warrant, failing which questions will be raised as to the validity of the
warrant and the arrest.

Where the order issuing the warrant did not even remotely indicate the circumstances reflected in
Section 87, the warrant is invalid and the consequential arrest is illegal.

“…a warrant ought not to be issued where a summons can serve the purpose, and…care should
be exercised by the court to satisfy itself that upon the materials before it, it was necessary to
issue a warrant.”

- 37th Report of the Law Commission of India


Arrest is the apprehension of a person by a “legal” authority resulting in deprivation of his
liberty. It is the most effective method of ensuring an accused’s presence at trial, but it is neither
desirable nor appropriate to use it in each and every case.

There are two types of arrest: arrest with warrant and arrest without warrant.

A warrant of arrest is a written order issued and signed by a magistrate and addressed to a police
officer or some other person specifically named, and commanding him to arrest the body of the
accused person named in it. It must clearly state the name and relevant particulars of the arrestee
in addition to specifying the offence with which he/she is charged. Issuing a warrant is left to the
discretion of the Magistrate. There are conflicting considerations: whether accused likely to
abscond vs. should not be subjected to arrest/detention before guilt is established.

A ‘bailable’ warrant is a warrant that includes a direction that if the person arrested under the
warrant executes a bond and gives security for his attendance in court, he shall be released. A
‘non-bailable’ warrant is any warrant other than a ‘bailable’ warrant. A ‘bailable’ warrant can be
issued both in the case of bailable and non-bailable cases;

2.4.3. SECTION 73 (1)
“Since warrant is and can be issued for appearance before the Court only and not before the
police and since authorisation for detention in police custody is neither to be given as a matter of
course nor on the mere asking of the police, but only after exercise of judicial discretion based
on materials placed before him, (Counsel for the State) was not absolutely right in his
submission that warrant of arrest under Section 73 of the Code could be issued by the Court
solely for the production of the accused before the police in aid of investigation.”
- State through CBI v.Dawood Ibrahim Kaskar 1997 SCC (Cri) 636

The accused was booked under various IPC sections including rape, unnatural sex, molestation
etc.. The Gujarat High Court (HC) quashed the non-bailable warrant (NBW) issued against Sai,

as it was ‘bad in law’ as his bail application was pending. As the NBW was quashed, Sai was
never an absconder and Section 73 (1) could not be invoked.

Section 78: Warrant forwarded for execution outside jurisdictions
(1) When a warrant is to be executed outside the local jurisdiction of the Court issuing it,
such court may, instead of directing the warrant to a police officer within its jurisdiction,
forward it by post or otherwise to any Executive Magistrate or District Superintendent of
Police or Commissioner of Police within the local limits of whose jurisdiction it is to be
executed; and the Executive Magistrate or District Superintendent or Commissioner shall
endorse his name thereon, and if practicable, cause it to be executed in the manner
hereinbefore provided.
(2) The Court issuing a warrant under sub-section (1) shall forward, along with the
warrant, the substance of the information against the person to be arrested together with
such documents, if any, as may be sufficient to enable the Court acting under section 81
to decide whether bail should or should not be granted to the person

Only in cases where a warrant of arrest has been issued against an accused person and there are
reasons to believe that the accused person has absconded or is concealing himself to avoid the
execution of the warrant, can the court publish a written proclamation under Section 82 requiring
such person to appear before it and attach his property under Section 83. If the accused person
fails to appear before the Court even after an order of proclamation, the attached property may be
sold by the State. It has been held by the Allahabad High Court that unless 30 days have passed
since the issuance of the proclamation under Section 82, no attachment may be ordered under
Section 83.


Previously, a police officer was vested with the power to arrest a person without a warrant or
without an order from a magistrate when a person had been, or was suspected to have
been,“concerned” in a cognizable offence.
Under Section 41 (1) (a), as substituted by Criminal Amendment Act 2008, a police officer may
arrest any person who commits a cognizable offence in his/her presence. Under Section 41 (b),
as substituted by Criminal Amendment Act 2008, the police may arrest any person against whom
a reasonable complaint has been made, or credible information has been received, or a
reasonable suspicion exists that he/she has committed a cognizable offences punishable by a
term of imprisonment of 7 years or less.

Conditions to be Satisfied under Section 41 (1) (b)
i. Arrest is necessary to prevent commission of further offences.
ii. Arrest is necessary to conduct a proper investigationTo prevent the tampering of
evidence by the arrestee.
iii. Arrest is necessary to prevent the arrestee from making any inducement
/threat/promise to any person so as to restrain him from disclosing facts/giving
information related to the case to the police and/or Magistrate;
iv. Arrest is necessary to ensure the presence of the accused in court.

Under Section 41 (1) (ba), as inserted by Act 5 of 2009, a person may be arrested without a
warrant by a police officer who has reason to believe, on the basis of credible information
received against that person, that he has committed a cognizable offence punishable with
imprisonment exceeding seven years or with death.

“Credible Information or Reasonable Suspicion”: This depends on the facts of each case. There
must be an honest belief in the mind of the police officer receiving such information that a
cognizable offence has been committed. The existence of the warrant is equivalent to credible

information, and it does not matter that the warrant was not addressed to the officer in question.
Mere registration of the FIR may not be sufficient to give rise to a‘reasonable suspicion’.
Section 42: Arrest on Refusal to give Name and Address: If name and address of offender
previously known to police officer, this section cannot be invoked.
Section 43: Arrest by a Private Person without a Warrant
Section 44: Arrest by Magistrate:
Under Section 44(1) Magistrate himself has been given power to arrest a person who has
committed an offence in his/her presence and commit that person to custody. Under Section
44(2) Magistrate can arrest a person suspected of committing an offence but cannot commit that
person to custody; person should be produced before another Magistrate for an obtaining an
order of remand to custody.

An ‘arrest’ consists of taking a person into ‘custody’ under authority empowered by law, for the
purpose of holding or detaining him to answer a criminal charge and/or preventing the
commission of a criminal offence. Actual seizure or touch of a person’s body with a view to
arresting is necessary. If the movement of a detainee is restricted within the premises of the
police station, it is an arrest.
Section 46 (4) :Arrest of Female Person: Arresting authority must make all possible
arrangements to ensure presence of woman constable. If such presence cannot be assured without
causing prejudicial delay to the investigation, arrest may be effected by male officer for lawful
reasons at any time of the night or day. Reasons for doing so must be recorded.

There can be search of arrested person under Section 51, but only if arrested person is not
released on bail. The police officer making the arrest may search such person and place in safe
custody all articles, other than necessary wearing apparel, found upon the person and submit a

receipt showing the articles taken. There can also be seizure of offensive weapons under Section
52 by any person making an arrest under the CrPC.

Medical Examination of Accused – Section 53: Medical examination of arrested person under
Section 53 when a request is made by a police officer not below the rank of sub-inspector, on
bona-fide (reasonable) grounds that such an examination of the arrested person by a medical
practitioner will afford evidence as to the commission of the offence. Merely undergoing a
medical examination does not violate the privilege against self-incrimination. The section
permits the use of force as is reasonably necessary.

Medical Examination of Rape Accused - Section 53A: Provides statutory sanction to the
medical examination of rape accused. The prosecution must order medical practitioner to
conduct an examination and compile a report furnishing details regarding age of accused,
marks/injuries on the body, a description of material taken from person of accused for DNA
profiling etc.


Under Article 22 (1) of the Constitution: “No person who is arrested shall be detained in custody
without being informed, as soon as may be, of the grounds for such arrest…”.

Under Section 50 (1): Every police officer or other person arresting any person without warrant
shall forthwith communicate to him full particulars of the offence for which he is arrested or
other grounds for such arrest.“Forthwith” under Section 50 (1) creates a stricter duty on the part
of the police officer making the arrest and would mean ‘as soon as possible’.

The Arrested person must be informed of bare necessary facts leading to arrest i.e. in respect of
whom, date, time and place of offence, with burden of proving compliance with Article 22 (1)
and Section 50 (1) on the prosecution.

Under Section 50 (2) arrestee to be informed of right to bail in bailable offences.

Section 41B, 50A and 54 were enacted following the case of D.K. Basu v. State of W.B. Under
Section 41B, a memorandum of arrest attested by a member of the arrestee’s family or a

respected member of the locality. There is duty on police officer to inform arrestee that he has
the right to have a relative or friend named by him to be informed of the arrest. Section 50A casts
an obligation on the police to inform the person so named by the arrestee about the place where
the arrestee is being held. Under Section 54 it is obligatory for the arresting authority to ensure
that the arrestee is examined by a medical officer even is it is against the wishes of the arrestee.

Under Section 55A there is a duty on the person having custody of the accused to take
reasonable care of the health and safety of accused.

Sections 56, 57, 76 create a right to be brought before a Magistrate within 24 hours. Under
Section 56, person arrested to be produced before Magistrate or officer in charge of police station
without delay. Under Section 57, person arrested without a warrant not to be detained for more
than twenty-four hours unless authorised by a special order of the Magistrate. Under Section 76,
person arrested under a warrant not to be detained for more than twenty-four hours unless
authorised by a special order of the Magistrate.

It should be noted that production after 24 hours does not render the custody illegal. Detention
beyond 24 hours may be ordered by the Magistrate (this is known as remand and is discussed
further ahead.)


(i) to prevent arrest and detention as a means of extracting confessions/information.
(ii) to prevent the use of police stations as prisons.
(iii) to afford an early recourse to a judicial officer independent of the police on all

questions of bail and discharge.

Right to Legal Counsel: Under Section 41D , when any person is arrested and interrogated by
the police, he shall be entitled to meet an advocate of his choice during interrogation, though not
throughout the interrogation.

Under Article 22(1) (of the Constitution, the arrestee has the ‘right to consult, and be defended
by, a legal practitioner of his choice’. Under Article 21, there is a constitutional mandate to
provide free legal aid from the time of appearance before the Magistrate right to the trial.

Unless refused, failure to provide free legal aid to an indigent accused would vitiate the trial
entailing setting aside of the conviction and sentence – Suk Das v. Union Territory of Arunachal
Pradesh (1986) 2 SCC 40

Whether police officer making the arrest was acting within or beyond his powers in effecting the
arrest will not affect the innocence or guilt of the accused. Thus, illegality or irregularity in
making an arrest would not vitiate the trial of the arrested person. Police officer may however be
prosecuted for wrongful confinement under Section 220 IPC and expose himself/herself to a civil
suit for false imprisonment.
Note: To determine whether an irregularity in the investigation or trial process will make the
trial or investigation void, students must refer to Section 460 of the CrPC. Section 460 creates a
list of those irregulairities in proceeding which will make the proceeding void, and those which
will not. In those instances where proceedings are not void, or are not listed as void, the failure to
follow proceedings is not entirely ignored. Irregularities which do not vitiate proceeding are
considered by the trial court when examining the veracity of the evidence placed by the
prosecuting authority, and will cast shadows of doubt on the claim of the prosecution.

2.6.1. SECTION 91 (1)
Whenever any Court or any officer in charge of a police station considers that the production of
any document or other thing is necessary or desirable for the purposes of any investigation,
inquiry, trial or other proceeding under this Code by or before such Court or officer, such Court
may issue a summons, or such officer a written order, to the person in whose possession or
power such document or thing is believed to be, requiring him to attend and produce it, or to
produce it, at the time and place stated in the summons or order.


A search warrant is a written authority given to a police officer or other person by a competent
Magistrate or court for the search of any place either generally or for specified things or
documents (or for persons wrongfully detained).A search being a coercive method and involving
an invasion of the sanctity and privacy of a citizen’s home, the power to issue a search warrant
should be exercised with all care and circumspection.


If the document(s) or thing(s) required for investigation are likely to be found at a place and the
Investigating Officer has reason to believe that such documents or things cannot otherwise be
obtained without undue delay, such Officer may, after recording in writing the grounds of his
belief and specifying in such writing so far as possible the document(s) or thing(s) for which
search is to be made, conduct a search of a place or dwelling u/s 165 CrPC for such document or
thing. Copies of record made are to be sent immediately to nearest Magistrate.

The search shall, if practicable, be made by the Officer himself but if he is unable to conduct the
search in person he may, after recording in writing his reasons for so doing, require any Officer
subordinate to him by an order in writing to make the search, with such order specifying the
places to be searched and as far as possible the thing or document for which search is to be made.


Use of force permitted when denied ingress/entry. The search of individual suspected of
concealing about his person any article for which search should be made. It must be conducted in
the presence of two respected and independent inhabitants of the locality. A nominee of the
occupant is permitted to witness the search.

House Searches (CBI Manual): House searches may be conducted only when essential in the
interest of the investigation of the case after obtaining permission from the Competent Authority,
who permitted registration of the case. In every case, wherein the Investigating Officer desires
to search a house or dwelling Unit, he will record in his Case Diary the reasons for doing so. A
house or dwelling Unit must not be searched unless there are definite reasons to believe that

certain specific things or documents required for the investigation of the case will be found there.
The number of places to be searched should be kept at the bare minimum.


Under Section 102 (1), any police officer may seize any property which may be alleged or
suspected to have been stolen or which may be found under circumstances which create
suspicion of the commission of any offence. Seizure under Section 102 means actually taking
possession of property at a particular moment in pursuance of a legal process.


The Supreme Court has held that even if the search is illegal, it will not affect the validity of the
seizure or the investigation or the validity of the trial. Non-Compliance with the search
procedure would render the entry unlawful. Such a person making an unlawful entry can be sued
civilly for trespass, and also be subject to such force as is legally justifiable in defence of
property and person.


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 authorised by the Magistrate
in this behalf.

The object of an investigation is to find out if the alleged offence has been committed and if so,
who has committed it.


As held by the Supreme Court in H.N. Rishbud V. State of Delhi the investigation generally
consists of the following steps:

(i) Proceeding to the spot;
(ii) Ascertainment of the facts and circumstances of the case;
(iii) Discovery and arrest of the suspected offender;
(iv) Collection of evidence relating to the commission of the offence which may consist


a. the examination of various persons (including the accused) and the, reduction of
their statements into writing, if the Officer thinks fit,

b. the search of places or seizure of things considered necessary for the
investigation and to be produced at the trial;

(v) Formation of the opinion as to whether on the material collected there is a case to
place the accused before a Magistrate for trial, and if so, taking necessary steps for
the same by filing of a charge-sheet.


Section 154 (1): Information in Cognizable Cases Every information relating to the
commission of a cognizable offence, if given orally to an officer in charge of a police
station, shall be reduced to writing by him or under his direction, and be read over to the
informant; and every such information, whether given in writing or reduced to writing as
aforesaid, shall be signed by the person giving it, and the substance thereof shall be
entered in a book to be kept by such officer in such form as the State Government may
prescribe in this behalf: …

Though not mentioned in the CrPC but it is understood to mean information given to a police
officer and recorded under Section 154(1). The FIR sets the criminal law in motion and is an
important document that may be utilised to corroborate the oral evidence of the complainant at
trial. Although it is not intended to be a catalogue of events, it is required to contain basic

The FIR does not constitute substantive evidence and can be used only to corroborate or
contradict its maker. It cannot be used against the maker if he/she becomes the accused nor can it
be used to corroborate or contradict other witnesses. The mental state of the maker (usually the
victim and/or relatives/associates of the victim) has to be taken into consideration. EFFECT OF DELAY IN LODGING FIR

Courts attach great importance to the lodging of prompt FIR as this ensures that any possibility
of the accused being falsely implicated and the witness being tutored is minimized. However, the

mere fact that FIR has been lodged early does not rule out embellishment or falsehood in every
case. Thus, no duration of time in the abstract can be fixed as reasonable for giving information
to the police. The plausibility of the explanation for delay in filing FIR is to be considered on a
case by case basis. The normal rule that the prosecution has to explain the delay and also prove
that there is no prejudice due to the delay, does not apply per se in rape cases. LALITA KUMARI CASE:

Interpretation of “Shall” in s.154:

“Therefore, the context in which the word “shall” appears in Section 154(1) of the Code, the
object for which it has been used and the consequences that will follow from the infringement of
the direction to register FIRs,all these factors clearly show that the word “shall” used in Section
154(1) needs to be given its ordinary meaning of being of “mandatory” character. The provisions
of Section 154(1) of the Code, read in the light of the statutory scheme,do not admit of
conferring any discretion on the officer in-charge of the police station for embarking upon a
preliminary inquiry prior to the registration of an FIR…In view of the above, we are satisfied
that Section 154(1) of the Code does not have any ambiguity in this regard and is in clear terms.”

Article 21 and Malicious Prosecution:

“…conducting an investigation into an offence after registration of FIR under Section 154 of the
Code is the “procedure established by law”and, thus, is in conformity with Article 21 of the
Constitution. Accordingly, the right of the accused under Article 21 of the Constitution is
protected if the FIR is registered first and then the investigation is conducted in accordance with
the provisions of law.”

“…Another, stimulating argument raised in support of preliminary inquiry is that mandatory
registration of FIRs will lead to arbitrary arrest, which will directly be in contravention of Article
21 of the Constitution.”

“The registration of FIR under Section 154 of the Code and arrest of an accused person under
Section 41 are two entirely different things. It is not correct to say that just because FIR is
registered, the accused person can be arrested immediately. It is the imaginary fear that “merely
because FIR has been registered, it would require arrest of the accused and thereby leading to

loss of his reputation”and it should not be allowed by this Court to hold that registration of FIR is
not mandatory to avoid such inconvenience to some persons. The remedy lies in strictly
enforcing the safeguards available against arbitrary arrests made by the police and not in
allowing the police to avoid mandatory registration of FIR when the information discloses
commission of a cognizable offence.”

“…the arrest of a person and registration of FIR are not directly and/or irreversibly linked and
they are entirely different concepts operating under entirely different parameters. On the other
hand, if a police officer misuses his power of arrest, he can be tried and punished under Section

The Authoritative Judgment:

“It is true that a delicate balance has to be maintained between the interest of the society and
protecting the liberty of an individual. As already discussed above, there are already sufficient
safeguards provided in the Code which duly protect the liberty of an individual in case of
registration of false FIR. At the same time, Section 154 was drafted keeping in mind the interest
of the victim and the society. Therefore, we are of the cogent view that mandatory registration of
FIRs under Section 154 of the Code will not be in contravention of Article 21 of the Constitution
as purported by various counsel.”

Recourse if FIR not filed by Station House Officer:

In case an officer in charge of a police station refuses to exercise the jurisdiction vested in him
and to register a case on the information of a cognizable offence reported and thereby violates
the statutory duty cast upon him, the person aggrieved by such refusal can send the substance of
the information in writing and by post to the Superintendent of Police concerned who if satisfied
that the information forwarded to him discloses a cognizable offence, should either investigate
the case himself or direct an investigation to be made by any police officer subordinate to him in
the manner provided by sub- section (3) of Section 154 of the Code.

Recourse may also be had s. 190 of the CrPC which allows a magistrate to direct an enquiry.
Therefore an aggrieved individual may also approach the magistrate.

It was held in Lalita Kumari that there is no preliminary inquiry under Section 154 “…for
offences under laws other than IPC, different provisions can be laid down under a special Act to
regulate the investigation, inquiry, trial etc., of those offences. Section 4(2) of the Code protects
such special provisions…special provisions contained in the DSPE Act relating to the powers of
the CBI are protected also by Section 5 of the Code.”

Advantages in Making the Registration of FIR Mandatory:
The obligation to register FIR has inherent advantages.

i. It is the first step to ‘access to justice’ for a victim.
ii. It upholds the ‘Rule of Law’ inasmuch as the ordinary person brings forth the

commission of a cognizable crime in the knowledge of the State.
iii. It also facilitates swift investigation and sometimes even prevention of the crime. In

both cases, it only effectuates the regime of law.
iv. It leads to less manipulation in criminal cases and lessens incidents of‘ante-dates’ FIR

or deliberately delayed FIR.


The officer, after registration of information which discloses the commission of a non-
cognizable offence, shall then refer the informant to the Magistrate. The police have no further
duty to investigate the case unless and until an order of the Magistrate having the power to try
such a case or commit the case for trial compels them to do so. The magistrate must consider the
totality of the circumstances in determining whether it would be just and proper to ask the police
to investigate the non-cognizable offence. The Police exercise same powers in investigating a
non-cognizable case as an SHO investigating a cognizable case (except arrest without warrant).


“At the stage of registration of a crime or a case on the basis of the information disclosing a
cognizable offence in compliance with the mandate of Section 154(1) of the Code, the concerned
police officer cannot embark upon an inquiry as to whether the information, laid by the

informant is reliable and genuine or otherwise and refuse to register a case on the ground that
the information is not reliable or credible. On the other hand, the officer in charge of a police
station is statutorily obliged to register a case and then to proceed with the investigation if he
has reason to suspect the commission of an offence which he is empowered under Section 156 of
the Code to investigate, subject to the proviso to Section 157.”
- Bhajan Lal Case
Judiciary should not interfere in investigation unless the FIR does not prima facie disclose a
cognizable offence. It is only in cases where the police decide not to investigate a case that a
Magistrate can intervene to either direct an investigation by the SHO or himself proceed or
depute a Magistrate subordinate to him to inquire into the case.

If, from information received or otherwise, an officer in charge of a police station has
reason to suspect the commission of an offence which he is empowered under section 156
to investigate, he shall forthwith send a report of the same to a Magistrate empowered to
take cognizance of such offence upon a police report and shall proceed in person, or
shall depute one of his subordinate officers not being below such rank as the State
Government may, by general or special order, prescribe in this behalf, to proceed, to the
spot, to investigate the facts and circumstances of the case, and, if necessary, to take
measures for the discovery and arrest of the offender…
If oral information relating to the commission of the offence is given to the officer in charge of a
police station, but the same is not recorded, and the police officer then records the statements of
the witnesses at the scene of the crime, none of these statements amount to an FIR. The FIR is
the unrecorded oral information given to the SHO.

“The underpinnings of compulsory registration of FIR is not only to ensure transparency in the
criminal justice delivery system but also to ensure ‘judicial oversight’. Section 157(1) deploys
the word ‘forthwith’.Thus,any information received under Section 154(1) or otherwise has to be
duly informed in the form of a report to the Magistrate. Thus, the commission of a cognizable
offence is not only brought to the knowledge of the investigating agency but also to the
subordinate judiciary…The Code contemplates two kinds of FIRs. The duly signed FIR under
Section 154(1) is by the informant to the concerned officer at the police station. The second kind
of FIR could be which is registered by the police itself on any information received or other than
by way of an informant [Section 157(1)] and even this information has to be duly recorded and
the copy should be sent to the Magistrate forthwith.”
- Lalita Kumari Case

Commencement of investigation is subject to two conditions:

(1) the police officer should have reason to suspect the commission of a cognizable offence

(2) satisfy himself/herself , subjectively, as to the existence of sufficient grounds for
embarking on the investigation.

Therefore, the requirements of launching an investigation under Section 157 of the Code are
higher than the requirement under Section 154 of the Code.

SHO to proceed in person or depute a subordinate officer on his behalf to proceed to the spot to
investigate the facts and circumstances surrounding the case. When information as to the
commission of any such offence is given against any person by name and the case is not of a
serious nature, the officer in charge of a police station need not proceed in person or depute a

subordinate officer to make an investigation on the spot. If it appears to the officer in charge of a
police station that there is no sufficient ground for entering on an investigation, he shall not
investigate the case.


Police officer is duly empowered to issue a written order requiring the attendance before him/her
of any person acquainted with the facts and circumstances relevant to the commission of the
offence under investigation. The person to whom the order is issued must be within the limits of
the police station to which the investigating officer belongs, or within the limits of any adjoining
police station. Any person who intentionally omits to attend as required by the investigating
officer is liable to be punished under Section 174 IPC.

The police do not however have the power to use force to compel such a person from attending,
nor do they have the authority to arrest/detain such a person. Exception to police’s power to
require attendance by witnesses: Applies to men below 15 or above 65 years of age; women and
differently abled persons; evidence to be taken at residence of witness or at a place chosen by the
witness (Criminal Law [Amendment] Act, 2013).
“A bare reading of the above section makes it abundantly clear that a Police Officer is
empowered to direct any person to be present before him so as to be available for interrogation
who appears to be acquainted with the facts and circumstances of the case provided that the said
person is available within the limits of his own or any adjoining station. The case of the
petitioner has been that he was residing in Dubai since 27th October, 1988 and so it cannot be
said that he was residing within the jurisdiction of the Investigating Officer. In these
circumstances, it appears that the Investigating Officer could not avail of the benefit of this
-Washeshwar Nath Chadha v. State


Police officer given the power to orally examine any person acquainted with the facts and
circumstances of the case.



i. Does ‘any person’ in Section 161 include an accused person or only a witness ?
ii. Does tendency to expose a person to a criminal charge embrace answers which have

an inculpatory impact on other criminal cases actually or about to be investigated or
tried ?
iii. When does an answer self-incriminate or tend to expose one to a charge?

Right not to self-incriminate - Article 20(3): “…for invoking the constitutional rights against
testimonial compulsion guaranteed under Art. 20(3) it must appear that a formal accusation has
been made against the party pleading the guarantee and that it relates to the commission of an
offence which in the normal course may result in prosecution…the nature of the accusation and
its probable sequel or consequence are regarded as important.” “Not all relevant answers are
criminatory; not all criminatory answers are confessions. Tendency to expose to a criminal
charge is wider than actual exposure to such charge…Every fact which has a nexus to any part of
a case is relevant, but such nexus with the case does not make it noxious to the accused.” =
On ‘Any Person’:

“We hold that ‘any person supposed to be acquainted with the facts and circumstances of
the case’ includes an accused person who fills that role because the police suppose him
to have committed the crime and must, therefore,be familiar with the facts. The
supposition may later prove a fiction but that does not repel the section. Nor does the
marginal note 'examination of witnesses by police' clinch the matter. A marginal note
clears ambiguity but does not control meaning. Moreover, the suppositions accused
figures functionally as a witness. 'To be a witness', from a functional angle, is to impart
knowledge in respect of a relevant fact, and that is precisely the purpose of questioning

the accused under section 161 CrPC. The dichotomy between ‘witnesses’and 'accused'
used as terms of art,does not hold good here.”

- Mahabir Mandal v.State of Bihar

Exposure to Self-Incrimination – Nandini Satpathy : “Let us hypothesize a homicidal episode in
which A dies and B is suspected of murder; the scene of the crime being C. In such a case a
bunch of questions may be relevant and yet be innocent. Any one who describes the scene as
wellwooded or dark or near a stream may be giving relevant evidence of the landscape.
Likewise, the medical evidence of the wounds on the deceased and the police evidence of the
spots where blood pools were noticed are relevant but vis-a-vis B may have no incriminatory
force. But an answer that B was seen at or near the scene,at or about the time of the occurrence
or had blood on his clothes will be criminatory…Relevant replies which furnish a real and clear
link in the chain of evidence indeed to bind down the accused with the crime become
incriminatory and offend Art. 20(3) if elicited by pressure from the mouth of the accused. If the,
statement goes further to spell in terms that B killed A, it amounts to confession…Article 20(3)
strikes at confessions and self-incriminations but leaves untouched other relevant facts.”

Right to Silence – Nandini Satpathy: “The prohibitive sweep of Art. 20(3) goes back to the stage
of police interrogation, and not,as contended, commencing in court only. In our judgment, the
provisions of Art. 20(3) and section 161( 1 ) substantially cover the same area, so far as police
investigations are concerned. The ban on self-accusation and the right to silence, while one
investigation or trial is under way, goes beyond that case and protects the accused in regard to
other offences pending or imminent, which may deter him from voluntary disclosure of
criminatory matter. We hold further that the accused person cannot be forced to answer questions
merely because the answers thereto are not implicative when viewed in isolation and confirmed
to that particular case. He is entitled to keep his mouth shut if the answer sought has a reasonable
prospect of exposing him to guilt in some other accusation actual or imminent,even though the
investigation underway is not with reference to that…However, fanciful claims, unreasonable
apprehensions and vague possibilities cannot be the hiding ground for an accused person. He is
bound to answer where there is no clear tendency to criminate.”


The investigating officer may reduce into writing any statement made to him in the course of the
examination of a person. If they does so, he/she must make a separate and true record of the
statement of each such person whose statement he records. If he/she records just one joint
statement of several witnesses during the investigation, while not rendering the witnesses
incompetent, it will affect the weight to be attached to their evidence.

Signing the Recorded Statements: Section 162 clearly mandates that “no statement made by any
person to a police officer in the course of an investigation, shall, if reduced to writing be signed
by the person making it.

The provision is intended as a statutory safeguard against improper police practices, and a
contravention will impair the value of the evidence of the person signing it; No police officer
shall prevent, by any caution or otherwise, any person from making a statement of his own free

Delay in Recording Statements:.The SC has held that there can be no rule of universal
application that if there is any delay in the recording the statement of a particular witness, his or
her version becomes suspect. If the explanation offered for such delay is accepted by the Court
as being plausible, there is no prejudice caused to the accused. .Further, the IO has to specifically
be asked as to what the reasons were for the delay in examination and/or recording the statement.

Such a statement can be used in the trial if the person making the statement is examined as a
prosecution witness. It however cannot be used whatsoever if the person making the witness is
examined as a defence witness. It can be used for contradicting the prosecution witness (by the
defence or, with permission, by the prosecution), but is not to be used for cross-examining such a
witness. Whether any omission in the written statement amounts to a contradiction is a question
of fact that varies from case to case.


Under the provision of Section 172 every Police Officer conducting an investigation shall
maintain a record of investigation done on each day in a Case Diary in the prescribed Form.Case
Diaries are important record of investigation carried out by an Investigating Officer.
Any Court may send for the Case Diaries of a case under inquiry or trial in such Court and may
use such diaries, not as evidence in the case, but to aid it in such inquiry or trial.
There is no uniform format for case diaries. The computerization of Case Diaries of cases
registered under different police stations of Bankura District was started on a test case basis from
February, 2011, to make the Case Diaries legible, irrespective of the standard of handwriting of
the I.Os, which had been a cause of concern in the past. Courts can also rely more on legible
case diaries. Case Diaries can be easily transferred to the superior officers for their perusal

Police custody is defined as the immediate physical custody by the police of a person who
committed a crime. The person is arrested and brought to the police station for processing and is
then confined in the police station’s jail.
Judicial custody is ascribed by a judge or the court itself and is ordered by the judge, depending
on the circumstances of the case. Depending on the situation, the judge may order the suspect
back into police custody or into judicial custody. Judicial custody is often granted if the suspect’s
rights could be at risk while in police custody. There is no interrogation of the detainee in
judicial custody without the prior permission of the judge.

When an investigation cannot be completed within 24 hours despite the fact that the accusation is
well founded, the police officer is required to send the accused and a copy of the case diary
entries to the nearest Magistrate. The object of producing the accused before the Magistrate is to

determine whether remand is necessary. When the person is produced before the Magistrate, the
Magistrate can remand the person to police or judicial custody for 15 days. After the expiry of
the first period of 15 days, further remand can only be in judicial custody.

Remand to Judicial Custody: Remand in judicial custody shall not exceed ninety days in cases
where the investigation relates to an offence punishable with death, imprisonment for life or
imprisonment for a term of not less than ten years. Sixty days in cases where the investigation
relates to any other offence. he 60/90 period has to be computed from the date of detention as per
orders of the Magistrate and not from the date of arrest by the police.

Maximum Duration of Remand: There cannot be any detention in police custody after the expiry
of the 15 day period even in a case where some more offences are found to have been committed
in the same transaction at a later stage; But the person can be remanded to police custody from
judicial custody if the same arrested person is involved in a different case, arising out of a
different transaction.

It is not always necessary to physically produce the accused before the Magistrate; However,
accepting a rubber-stamped endorsement to the effect that the accused could not be produced is

The reasons behind why detention beyond 24 hours is sought must be stated;.

i. The arresting officer is legal competent to make the arrest.
ii. If there is a report disclosing a cognizable offence.
iii. If a case has been registered for investigation.
iv. The particulars of the offence for which the person is arrested or other grounds do

exist and are well founded.
v. The Provisions of the Special Act in regard to the arrest of the persons and production

of the arrestee serve the purpose of Section 167(1).


A Remand Order under Section 167 is a judicial order. It must be passed on ‘application of
mind’ to the contents of the remand report submitted by the IO The order should contain reasons
for extending remand. In the absence of any request by the police or jail authorities or in the
absence of sufficient grounds, the remand should not be extended and the Magistrate must
inform the accused that he/she can be released upon furnishing bail.

Written Reasons: Where a decision is to be taken after exercising judicial discretion, it is
generally desirable to record the reasons for the decision. In the case of an Executive Magistrate
who is authorised to remand a person for a maximum of 7 days, it is mandated that such
Magistrate can authorise detention “for reasons to be recorded in writing”. Section 167(3)
clearly provides that a Magistrate authorising detention in the custody of the police shall record
his reasons for doing so. Any Magistrate other than the CJM making an order of detention under
Section 167(2) shall forward a copy of his order, with reasons for making it, to the CJM.

Right to be Released on Bail: It is the duty of the Magistrate to inform the accused that he/she
has the right to be released on bail under the proviso to Section 167(2). Notwithstanding the
abovementioned period of 60/90 days, the accused shall be detained in custody so long as he/she
does not furnish bail. On the expiry of the 60/90 days, accused’s further detention does not ipso
facto become illegal or void, but if the (final report (chargesheet) is yet to be submitted to the
Magistrate, the accused is entitled to be released on bail if he is prepared to and furnishes bail.

Sections 167(5) and 167(6):

Section 167 (5) If in any case triable by a Magistrate as a summons-case, the
investigation is not concluded within a period of six months from the date on which the
accused was arrested, the Magistrate shall make an order stopping further investigation
into the offence unless the officer making the investigation satisfies the Magistrate that
for special reasons and in the interests of justice the continuation of the investigation
beyond the period of six months is necessary.

Section 167 (6) Where any order stopping further investigation into an offence has been
made under sub-section (5), the Sessions Judge may, if he is satisfied, on an application
made to him or otherwise, that further investigation into the offence ought to be made,
vacate the order made under sub-section (5) and direct further investigation to be made

into the offence subject to such directions with regard to bail and other matters as he may
If no reasonable ground of suspicion of evidence to justify the forwarding of the accused to a
Magistrate, such police officer shall (if such person is in custody) release him on executing a
bond, with or without sureties, as such an officer may direct, to appear, if and when so required,
before a Magistrate empowered to cognizance of the offence on a police report, and to try the
accused or commit him for trial.

If, upon an investigation under this Chapter, it appears to the officer in charge of the police
station that there is sufficient evidence or reasonable ground as aforesaid, such officer shall
forward the accused under custody to a Magistrate empowered to take cognizance of the offence
upon a police report and to try the accused or commit him for trial, or, if the offence is bailable
and the accused is able to give security, shall take security from him for his appearance before
such Magistrate on a day fixed and for his attendance from day to day before such Magistrate
until otherwise directed.

As soon as the Investigation is completed, the officer in charge of the police station shall forward
to a Magistrate empowered to take cognizance of the offence on a police report, a report in the
form prescribed by the State Government, stating:
(a) the names of the parties;
(b) the nature of the information;
(c) The names of the persons who appear to be 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 he has been forwarded in custody under section 170.
Note: If the report alleges the commission of a crime by an accused person, the report is
commonly called the “charge-sheet”
In certain cases of special or suspicious circumstances, the executive magistrate looks into the
circumstances surrounding such death.
Section 177: Ordinary Place of Inquiry and Trial: The general rule is that every offence shall
ordinarily be inquired into and tried by a court within whose local jurisdiction it was committed.
Sections 178-184 provide for alternative venues for inquiry and trial under certain circumstances
and in respect of certain types of offences. This is intended to minimise the inconvenience that
might be caused by strict adherence to the ‘general rule’ above. These rules are cumulative in
effect so as to facilitate the prosecution of offenders by providing a wider choice of venue for
initiating the inquiry or trial. All these rules are equally applicable for determining the
jurisdiction of the police by virtue of Section 156(1).
Section 178: Place of Inquiry or Trial:
(a) When it is uncertain in which of several local areas an offence was committed, or
(b) where an offence is committed, partly in one local area and partly in another, or
(c) where an offence, is a continuing one, and continues to be committed in more local areas than
one, or
(d) where it consists of several acts done in different local areas, it may be inquired into or tried
by a Court having jurisdiction over any of such local areas.

Section 179: Offence Triable Where Act is Done or Consequence Ensues: When an act is an
offence by reason of anything which has been done and of a consequence which has ensued, the
offence may be inquired into or tried by a Court within whose local jurisdiction such thing has
been done or consequence has ensued.

For example, if A is wounded by B in jurisdiction of Court X but dies in jurisdiction of Court Y.
The offence of culpable homicide committed by B may be inquired into and tried by Court X or

Section 180: Place of Trial Where Act is an Offence by Reason of Relation to other Offence
When an act is an offence by reason of its relation to any other act which is also an offence or
which would be an offence if the doer were capable of committing an offence, the first-
mentioned offence may be inquired into or tried by a Court within whose local jurisdiction either
act was done.

For example, if A gives B a knife to kill C within the local jurisdiction of Court X and B kills C
within the local jurisdiction of Court Y, the offence of abetment by A can be inquired into by
Court X or Court Y. However, if B does not kill C, then the offence of abetment committed by
A can only be inquired into or tried by Court X.

Section 181(1) Any offence of being a thug, or murder committed by a thug, of dacoity, of
dacoity with murder, of belonging to a gang of dacoits, or of escaping from custody, may be
inquired into or tried by a court within whose local jurisdiction the offence was committed or the
accused person is found.

Section 181(2): Any offence of kidnapping or abduction of a person may be inquired into or tried
by, a court within whose local jurisdiction the person was kidnapped or abducted or was
conveyed or concealed or detained.

Section 181(3): Any offence of theft, extortion or robbery may be inquired into or tried by a
Court within whose local jurisdiction the offence was committed or the stolen property which is
the subject of the offence was possessed by any person committing it or by any person who
received or retained such property knowing or having reason to believe it to be stolen property.

Section 181(4): Any offence of criminal misappropriation or of criminal breach of trust may he
inquired into or tried by a court within whose local jurisdiction the offence was committed or any
part of the property which is the subject of the offence was received or retained, or was required
to be returned or accounted for, by the accused person.
Section 181(5) Any offence which includes the possession of stolen property may be inquired
into or tried by, a court within whose local jurisdiction the offence was committed or the stolen
property was possessed by any person who received or retained it knowing or having reason to
believe it to be stolen property.

Section 182(1) Any offence which includes cheating deception is practice by means of letters or
telecommunication message, be inquired into or tried by any court within whose local
jurisdiction such letters or message were sent or were received; and any offence of cheating and
dishonestly including delivery, of property may be inquired into or tried by a court within whose
local jurisdiction the property was delivered by the person deceived or was received by the
accused person.
Section 182(2) Any offence punishable under section 495 or section 494 of the Indian Penal
Code (45 of 1860) may be inquired into or tried by a court within whose local jurisdiction the
offence was committed or the offender last resided with his or her spouse by the first marriage 1
[or the wife by first marriage has taken up permanent residence after the commission of offence].

Section 183 When an offence is committed, whilst the person by or against whom, or the thing in
respect of which, the offence is committed is in the course of performing a journey or voyage,
the offence may be inquired into or tried by a court through or into whose local jurisdiction that
person or thing passed in the course of that journey or voyage.

Section 184 Where-

(a) The offences committed by any person are such that he may be charged with, and tried at one
trial for, each such offence by virtue of the provisions of section 219, section 220 or section 221,

(b) The offence or offences committed by several persons are such that they may be charged
with, and tried together by virtue of the provisions of section 223, The offences may be inquired
into or tried by any court competent to inquire into or try any of the offences.

Sections 185 and 186: The State Government may direct that any cases or class of cases
committed for trial in any district may be tried in any session’s division.

This is an extraordinary power intended to be used only when some consideration of public
interest (e.g. maintenance of public order during the trial of a sensational case) justifies the
holding of a sessions trial in a different Sessions Division. Where two or more Courts have taken
cognizance of the same offence and a question arises as to which of them ought to inquire into or
try that offence, the question shall be decided by the High Court to which the Courts are
subordinate to. If the Courts are not subordinate to the same High Court, then the High Court
under whose criminal appellate jurisdiction the proceedings were first commenced shall

Section 187: When a Magistrate of the first class sees reason to believe that any person within
his local jurisdiction has committed outside such jurisdiction (whether within or outside India) an
offence which cannot, under the provisions of sections 177 to 185 (both inclusive), or any other
law for the time being in force, be inquired into or tried within such jurisdiction but is under
some law for the time being in force triable in India, such Magistrate may inquire into the
offence as if it had been committed within such local jurisdiction and compel such person in the
manner hereinbefore provided to appear before him, and send such person to the Magistrate
having jurisdiction to inquire into or try such offence.

Section 188:

In one case under this section, The appellant's wife argued that part of the offence relating to
dowry was committed in Indian soil and part of the offence was committed abroad. Hence the
offence could be tried in Indian courts. However, the appellant argued that he could not be tried
without the previous sanction from the Central government. Writing the judgment Justice Kabir
pointed out that it was clear that the case relating to the alleged dowry offences were committed
outside India. But since part of the offence was committed in India, the court here could try the
appellant and the High Court was correct in rejecting his plea to quash the proceedings. The

Bench while asking the trial court to take up the case said, the trial would not proceed without
the sanction of the Central government as envisaged in Section 188 CrPC.
Although the investigative proceedings conducted by a police officer shall not be called into
question merely on the grounds of jurisdiction, the same does not apply to the Courts. If a court
which is not empowered to try a particular offence does try that offence, the entire trial shall be
void. This is because the power to try offences is conferred by the Legislature on the Courts
keeping in mind the experience, capability and responsibility of the Court. The higher the Court
is in the hierarchy, the larger the jurisdiction over various offences.
Section 462: A ‘Failure of Justice’: No finding, sentence or order of any Criminal Court shall be
set aside merely on the ground that the inquiry, trial or other proceedings in the course of which
it was arrived at or passed, took place in a wrong sessions division, district, sub-division or other
local area, unless it appears that such error has in fact occasioned a failure of justice.
That being said, where the objection to the territorial jurisdiction has been taken up before or at
the time of commencement of the trial, no shelter can be taken behind Section 462. Therefore the
complainant is not at liberty to go “forum shopping” on the ground that no prejudice is caused to
the opposite party.

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