Introduction
This article discusses the powers of the police officers in relation to cognizable and non-cognizable offences. This power of police of Information and Investigation is provided in the Code of Criminal Procedure (CrPC) under chapter XII – Information to the police and their powers to investigate. In the case of State of West Bengal vs. S. N. Basak, it was held that the power of the police to carry on investigation under this chapter before a prosecution is launched, is a statutory right and cannot be interfered with by the courts.
Their powers include investigation, preliminary inquiry, require the attendance of witnesses, the examination of witnesses, power of search and enquiry, this list is however not exhaustive but an indication of the powers of the police officer.
Cognizable and non-cognizable offences
Offences under the criminal laws are classified into Cognizable and Non-cognizable offences, section 2(c) of CrPC defines cognizable offences as those offences in which the police officer may in accordance with the First Schedule make an arrest without an arrest warrant. While section 2(l) defines a non-cognizable offence as an offence in which the police officer has no authority to make an arrest without a warrant.
Information in Cognizable cases (section 154):
Section 154 provides that information relating to the commission of a cognizable offence should be given to the police officer, this information is known as the “first information” the police officer on the basis of this information shall register a case. In Lalita Kumari vs. Govt. of UP and Ors., the Supreme Court held that Registration of FIR is mandatory under Section 154 of the Code, if the information discloses commission of a cognizable offence. An amendment was made in 2013 which introduced a proviso that when an information is given by any woman against whom an offence under section (U/s) 326A, 326B, 354, 354 A-D, 376, 376A-E or 509 of Indian Penal Code (IPC) is committed, then such information shall be recorded by a woman officer. The substance of information is to be entered in a book known as “General Diary” at every police station in such form as the State Government prescribes.
Information in non-cognizable cases (section 155):
Section 155 states that when information of a non-cognizable offence is given to the police he must enter it in the “diary” in the form as prescribed by the State Government and then refer the informant to the Magistrate. Subsection 4 of section 155 provides that when a case relates to 2 or more offences and one of them is cognizable then the case shall be deemed to be a cognizable case.
Investigation of cognizable and non-cognizable cases:
The investigation is defined u/s 2(h) of CrPC as the proceedings for the collection of evidence conducted by the police officer or any person authorized by the Magistrate.
As per section 156, an officer may without the order of a Magistrate investigate any cognizable case which the court has jurisdiction, and no proceeding of a police officer shall be called into question at any stage on the grounds that the case was such in which the officer was not empowered to investigate under this section, a Magistrate empowered u/s 190 may also order an investigation.
Section 155(2) provides for the investigation is non-cognizable cases i.e. a police officer cannot investigate an offence without the order of the Magistrate, on receiving the order he shall exercise the same powers of investigation as in cognizable cases except the power to make an arrest without a warrant as per section 155(3).
Power of Police Officer
Power to Investigate:
The procedure which needs to be followed under the code by the police officer is provided u/s 157 when an officer in charge has reason to suspect that an offence is committed which he has the power to investigate u/s 156 shall forthwith send a report of the same to the Magistrate empowered to take cognizance upon a police report and then proceed in person or through his subordinate to the spot to investigate the facts and circumstances of the case and take measures for the discovery and arrest of the offender.
Also, if it appears to the police officer that there is no sufficient ground for an investigation he shall not investigate, in which case he shall state in his report and notify the informant that he will not investigate the case. In S.N.Sharma vs. Bipen Kumar it was held that the Magistrate has the alternative to proceed with a preliminary inquiry u/s 159 if the police decide not to investigate, but he has no power to stop the investigation once it has started.
Power to require attendance of witness (section 160):
Any police officer investigating an offence, may by order in writing require the attendance of any person within the limits of his own or any adjoining station before himself who from the information appears to be acquainted with the facts and circumstances of the case. Any person who fails to comply with the order of the police may be prosecuted for disobedience u/s 174 of IPC. Also, no male under the age of 15 years or above 65 years or a woman or a mentally or physically disabled person shall be required to attend at any place other than their residence.
Power to examine the witness (section 161):
Any person can be orally examined by the police officer, which may be reduced in writing. There should not be any delay in recording statements, the statements if recorded must be recorded as made and should not be in indirect speech it should be in first person it may also be recorded in audio-video electronic means. No oath or affirmation is required for examination under this section. Such person is legally bound to answer truly the questions put to him. A person who gives a false answer can be prosecuted u/s 202, 203 of IPC.
Power to search (section 165):
A police officer is empowered u/s 165 of the code to search for any place which he has reasons to believe that anything necessary for the purpose of an investigation may be found after recording his reason in writing the reasonable grounds of his belief and also specify if possible what is being searched, may search that place. The police officer is not authorized to conduct a search in any place which is outside his limit, with an exception u/s 166(3) where a police officer can search within the limits of another police station in certain cases.
Procedure for investigation
When investigation not completed in twenty-four hours (section 167):
When any investigation cannot be completed within 24 hours and the accusation is well-founded, the police officer is required to send a copy of entries in diary and the accused to the Magistrate u/s 167(1), the purpose behind this is to enable the Magistrate to see that remand is necessary. The Magistrate can remand him to police custody or judicial custody for 15 days, after the expiry of 15 days, there can be no detention in police custody but can be extended to judicial custody.
Section 167 (2)(a) provides that a Magistrate may authorize detention beyond the period of 15 days but not exceeding a total period of –
i) 90 days, where the investigation relates to an offence punishable with death, life imprisonment or imprisonment for a term not less than 10 years;
ii) 60 days, where investigation relates to any other offence, and on the expiry of this period the accused person shall be released on bail i.e. statutory bail or default bail,
The SC in Abdul Basit @ Raju vs. Mohd. Abdul Kadir and Anr., said that an order of bail under this section is not an order on merits but an order on the default of the prosecuting agency, if the investigation reveals that the accused has committed a serious offence and the charge-sheet is filed then the bail could be canceled on an application of the prosecuting agency. A 3 judge bench of the SC in S Kasi vs. State through the Inspector of Police., pointed out that –
“the right of the prosecution to file a charge sheet beyond the period of 90/60 days is not barred….but without filling the charge sheet they cannot detain an accused beyond a said period when the accused prays to set him on liberty due to non-filing of the charge-sheet within the prescribed period.”
Delay of Investigation in Summons case:
Section 167(5) provides that when in a summons case an investigation is not completed within 6 months from the date of arrest of the accused, the Magistrate may make an order stopping investigation unless the officer investigating the offence satisfies beyond doubt that the delay beyond 6 months and continuation of investigation are necessary for special reasons and in the interest of justice.
Procedure when evidence is deficient
Section 169 enables the police officer to release the accused on the execution of a bond if there is not sufficient evidence, he may be directed to appear before the Magistrate when required.
Procedure when evidence is sufficient
Section 170 is the counterpart of section 169, it requires the officer in charge to send a case to the Magistrate if there is sufficient evidence or there are reasonable grounds for so.
Diary of proceedings in the investigation (section 172):
Every police officer making an investigation shall under this section, enter day-to-day proceedings done in the investigation in a diary including the time of starting and ending of investigation, places visited by him and a statement of circumstances ascertained through his investigation and the statements of witness recorded u/s 161. The police diary cannot be used as evidence against the accused.
Charge-sheet (section 173):
Every investigation shall be completed without any unnecessary delay. As per section 173(2), as soon as the investigation is completed the police officer shall forward a report to the Magistrate in the form as prescribed by the State government, stating:-
- Name of the parties
- Nature of information
- Name of persons acquainted with the circumstances of the case
- Whether an offence appears to be committed and if so, by whom
- Whether the accused has been arrested
- Whether he has been released on his bond, if so whether with or without sureties.
- Whether he has been forwarded in custody u/s 170
- Report of medical examination of woman
This report is known as the ‘Charge-sheet’, after a charge-sheet is sent the preliminary investigation and preparation are over and the Magistrate can take cognizance.
The officer shall also communicate the action taken by him. However, section 173(8) provides that nothing in this section shall be deemed to preclude Further Investigation after a report under subsection 2 has been forwarded to the Magistrate. Upon such further Investigation if the officer obtains further evidence, he shall forward the same to the Magistrate. The question whether the Magistrate can order further Investigation after police report has been forwarded to him u/s 173(8) was answered finally by the Apex court in the case of Vinu Haribhai Malaviya vs. State of Gujarat the court held that –
“Whether further investigation should or should not be ordered is within the discretion of the learned Magistrate who will exercise such discretion on the facts of each case and in accordance with law.”
Conclusion
The procedure provided for investigation under the CrPC should be mandatorily followed by the police officer investigating the case, he should handle the case with utmost sincerity and without using the color of his office. A police investigation plays a bridge between the public and justice; hence the police machinery should not get involved into unlawful practices during the investigation and perform their duty in accordance with law.
REFERENCES:
Ratanlal and Dhirajlal, The Code of Criminal Procedure, 22nd Edition, Lexis Nexis
This article is authored by Priyanshi Gupta, 1st LLM student at Nirma University.
Also Read – Can An Arrest Be Made Without An Arrest Warrant?
