Introduction to Investigational Process

April 6, 2019 Ajay Garg THE RIGHTS OF ACCUSED & PRISONERS

RIGHTS OF PRISONERS
  • Categorisation of offences for the purpose of investigation: Art. 21 of the Constitution of India provides that no person shall be deprived of his life or personal liberty except according to the procedure established by law. The Code of Criminal Procedure, 1973 (hereinafter referred to as the Code) is the procedure prescribed by law for detection, investigation and trial of offences. It confers vast powers on the police officers to enable them to effectively investigate offences including powers of arrest, search and seizure and ultimate prosecution of offenders. It is, therefore, necessary to have a bird’s eye view of the scheme of the Code regarding investigation by police, categorisation of offences and powers of police to investigate various types of offences.Investigation has been defined to include all the 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 a Magistrate in this behalf. The collection of evidence is necessitated whenever an offence is committed. Offence has been defined in the Code to mean any act or omission made punishable by any law for the time being in force. Offences have been categorised into two categories: –
    • cognizable offences which means an offence for which a police officer may, in accordance with the First Schedule of the Code or under any other law for the time being in force, arrest without warrants ; and
    • a non-cognizable offence which has been defined to mean an offence for which a police officer has no authority to arrest a person without warrants from the Magistrate. Schedule I of the Code make a detailed reference to cognizable and non-cognizable offences punishable under the Indian Penal Code and Schedule II of the Code makes classification of offences against other laws. According to this schedule any offence if punishable with death, imprisonment for life or imprisonment for more than seven years or with imprisonment for three years and upwards but not more than seven years, has been categorised as cognizable offence, but if the offence is punishable with imprisonment for less than three years or with fine only, it has been categorised as non-cognizable offence.4aAn officer incharge of a police station has been empowered, without the orders of a Magistrate, to investigate any cognizable offence or case which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII of the Code.5 But no police officer is competent to investigate a non-cognizable offence/case without the order of a Magistrate having power to try such case.6Police officer on receiving an order from the Magistrate to investigate a non-cognizable offence has same powers in respect of the investigation as an officer incharge of a police station may exercise in a cognizable case except the powers to arrest without a warrant from the Magistrate.7In regarding non-cognizable offences the Punjab and Haryana High Court8 took the view that once the Police has registered a cognizable offence, it cannot be faulted on the ground that the offence that was registered was in fact not made out from the facts disclosed in the FIR as at this stage it is a question of view that a police officer recording the FIR takes. However, Delhi High Court9 took a contrary view that a police officer has no power to investigate a non-cognizable offence unless he has received the information about the commission of such an offence and has obtained an order from the Magistrate in terms of S. 155 (2) of the Code and non-compliance of these provisions is a ground for quashing of the proceedings. The Bombay High Court10 also took the same view and held the offence under S. 124 of Bombay Police Act being non-cognizable, the police officer had no power to arrest a person under S. 155(2) of the Code. In Subodh Singh Vs. State11 the Court observed that non-conformance to the mandatory provisions laid down in S. 155 (2) of the Code is a non-conformance to the procedure established by law and the impact thereof is that it vitiates the proceedings. The Calcutta High Court12took the view that the provisions of S. 155 (2) of the Code cannot be rendered nugatory by treating the report of police after investigation as valid under S. 190 (1) (b) thereof.
  • How the investigation begins? Criminal law is put in motion by making a report of facts constituting an offence. Such report is made to the officer in charge of a police station. On receipt of such information relating to the commission of a cognizable offence, if given orally to an officer in charge of a police station, is required to be reduced into writing by him or under his direction, read over to the informant and every such information if given in writing or reduced to writing is required to be signed by the person giving it. Secondly, a copy of such recorded information is required to be given forthwith to the informant free of cost.Thirdly, the officer in charge is required to enter the substance of such information into a book kept by him in such form as may be prescribed by the State Government.13 If the officer in charge of a police station refuses to record such information, the aggrieved person can send such information to the Superintendent of Police by post and on receipt of such information he is empowered either to investigate to the case himself or direct an investigation to be made by any police officer subordinate to him.14 If the information given to an officer in charge in charge of a police station relates to the commission of a non-cognizable offence within the limits of his police station, he is required to enter the substance of such information in a book in such form as may be prescribed by the States Government and refer the informant to the Magistrate.15Second course open to aggrieved person on refusal by the officer in charge of a police station to record FIR is that the complainant can bring the fact to the notice of the Magistrate who is empowered to direct the police to investigate the case.16
  • Territorial jurisdiction of the police to investigate congnizable offences:
    The officer in charge of a police station has jurisdiction to investigate any cognizable offence without the orders of a Magistrate which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII of the Code.18 In order to ascertain whether the officer in charge of a police has or has no jurisdiction over the local area of such police station has jurisdiction to take cognizance under the provisions of Chapter XIII (Ss. 177-189 of the Code). In other words, if the Magistrate is competent to take cognizance of such offence in accordance with the provisions of Chapter XIII of the Code, the officer in charge will be competent to investigate the case.

 

  • S. 2 ([1]h).
  • S. 2 (h)[1].
  • S. 2 ( c ).
  • S. 2 ( 1 ).
  • a Schedule II.
  • S. 156 (1).
  • S. 155 (2).
  • S. 155 (3).
  • Chattar Singh V State of Haryana, 1980 Cr. L. J. 315 (PH).
  • Jugal Kishore Vs. State, 1972 Cr. L. J. 371 (Del.).
  • Avinash Vs. State of Maharashtra, 1983 Cr. L. J. 1833 (Bom.)
  • 1974 Cr. L. J. 185.

Abdul Halim Vs. State of West Bengal, AIR 1961 Cal. 257. See also State Vs. Dilla Ram

  • S. 154 of the Code.
  • S. 154.
  • S. 156 (1).
  • S. 156 (3).
  • S. 156 (1).