Power of Police under Police Acts & CrPC with Relevant Judgments - The Red Carpet

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Wednesday, October 6, 2021

Power of Police under Police Acts & CrPC with Relevant Judgments

 



Police


Police is the first body whom we approach in case any crime or wrong is done against us. Police is the one who registers First Information Report and police officers are responsible for the maintenance of public order and peace. There are many Acts like The Police Act, 1861, The Delhi Special Police Administration Act, 1946, The Model Police Act, etc which make provisions for the administration and functions of police force.

 

Who is Police?

 

Police is the function of that branch of the administrative machinery of government which is charged with the preservation of public order and tranquility, the promotion of the public health, safety, and morals, and the prevention, detection, and punishment of crimes.

 

Police Acts

 

(1)   The Police Act, 1861

 

It is the main statute and it talks about overall administration of police state wise. According to the Section 2 of the Act, the number of officers or men employed in police shall be decided by the respective state government from time to time and will be enrolled formally. The entire working of police force in the state is in the hands of Director-General of Police whereas as per Section 4 of the Act, the administration throughout the district is in the hands of District Superintendent of Police under the directions of District Magistrate.

 

(2)   The Police Act, 1888

 

The objective of this Act according to Section 2 is “the Central Government may, by notification in the Official Gazette, create a special police district embracing parts of two or more States, and extend to every part of the said district the powers and jurisdiction of members of a police force belonging to a State specified in the notification.”

 

(3)   The Police Act 1949

 

This Act has made the provisions for administration of police force in Union Territories. According to Section 5 of the Act, superintendence of police throughout general police district is exercised by Central Government. All the provisions of The Police Act, 1861 are applicable for the administration of Police in UTs.

 

(4)   The Delhi Special Police Establishment Act, 1946

 

This Act has played a pivotal role in the functions of the police officers. It provides for a special police force in Delhi and this body can also integrate or aid the police of other states with the concurrence of respective State Governments.

 

(5)   The Model Police Act, 2006

 

This Act lays down the constitution, appointment, powers, role, responsibilities of police officers.


 

Duties and responsibilities of Police

 

(A)  Section 57 of Model Police Act, 2006, lays down role, functions and duties of the police. Following are the important provisions of the said Section. Section 57 states as follows,

 

“The role and functions of the police shall broadly be:

• to uphold and enforce the law impartially, and to protect life, liberty, property, human rights, and dignity of the members of the public;

• to promote and preserve public order;

• to protect internal security, to prevent and control terrorist activities, breaches of communal harmony, militant activities and other situations affecting Internal Security;

• to protect public properties including roads, railways, bridges, vital installations and establishments etc. against acts of vandalism, violence or any kind of attack;

• to prevent crimes, and reduce the opportunities for the commission of crimes through their own preventive action and measures as well as by aiding and cooperating with other relevant agencies in implementing due measures for prevention of crimes;

• to accurately register all complaints brought to them by a complainant or his representative, in person or received by post, e-mail or other means, and take prompt follow-up action thereon, after duly acknowledging the receipt of the complaint;

• to register and investigate all cognizable offences coming to their notice through such complaints or otherwise, duly supplying a copy of the First Information Report to the complainant, and where appropriate, to apprehend the offenders, and extend requisite assistance in the prosecution of offenders;

• to create and maintain a feeling of security in the community, and as far as possible prevent conflicts and promote amity;

• to provide, as first responders, all possible help to people in situations arising out of natural or man-made disasters, and to provide active assistance to other agencies in relief and rehabilitation measures; to aid individual, who are in danger of physical harm to their person or property , and to provide necessary help and afford relief to people in distress situations;

• to facilitate orderly movement of people and vehicles, and to control and regulate traffic on roads and highways;

• to collect intelligence relating to matters affecting public peace, and all kind of crimes including social offences, communalism, extremism, terrorism and other matters relating to national security, and disseminate the same to all concerned agencies, besides acting, as appropriate on it themselves.

• to take charge, as a police officer on duty, of all unclaimed property and take action for their safe custody and disposal in accordance with the procedure prescribed.”

 


(B)  Social Responsibilities of the police as mentioned under Section 58 of Model Police Act, 2006 are as follows.

 

“Every police officer shall:

• behave with the members of the public with due courtesy and decorum, particularly so in dealing with senior citizens, women, and children;

• guide and assist members of the public, particularly senior citizens, women, children, the poor and indigent and the physically or mentally challenged individuals, who are found in helpless condition on the streets or other public places or otherwise need help and protection;

• provide all requisite assistance to victims of crime and of road accidents, and in particular ensure that they are given prompt medical aid, irrespective of medico-legal formalities, and facilitate their compensation and other legal claims;

• ensure that in all situations, especially during conflict between communities, classes, castes and political groups, the conduct of the police is always governed by the principles of impartiality and human rights norms, with special attention to protection of weaker sections including minorities;

• prevent harassment of women and children in public places and public transport, including stalking, making objectionable gestures, signs, remarks or harassment caused in any way;

• render all requisite assistance to the members of the public, particularly women, children, and the poor and indigent persons, against criminal exploitation by any person or organised group; and

• arrange for legally permissible sustenance and shelter to every person in custody and making known to all such persons provisions of legal aid schemes available from the Government and also inform the authorities concerned in this regard.”

 


 

Powers of Police

 

The Code of Criminal Procedure, 1973 confers important powers on police officers. Power to investigate, search and arrest are some of the powers.

 

Arrest without warrant

Section 41 of the Code empowers police to arrest a person without the orders of Magistrate and without a warrant.

 

Section 41 : When police may arrest without warrant.

(1)Any police officer may without an order from a Magistrate and without a warrant, arrest any person

(a) who commits, in the presence of a police officer, a cognizable offence;

(b) against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence punishable with imprisonment for a term which may be less than seven years or which may extend to seven years whether with or without fine, if the following conditions are satisfied, namely:

(i) the police officer has reason to believe on the basis of such complaint, information, or suspicion that such person has committed the said offence;

(ii) the police officer is satisfied that such arrest is necessary—

(a) to prevent such person from committing any further offence; or

(b) for proper investigation of the offence; or

(c) to prevent such person from causing the evidence of the offence to disappear or tampering with such evidence in any manner; or

(d) to prevent such person from making any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to the police officer; or

(e) as unless such person is arrested, his presence in the Court whenever required cannot be ensured,

and the police officer shall record while making such arrest, his reasons in writing:

2 Provided that a police officer shall, in all cases where the arrest of a person is not required under the provisions of this sub-section, record the reasons in writing for not making the arrest.

(ba) against whom credible information has been received that he has committed a cognizable offence punishable with imprisonment for a term which may extend to more than seven years whether with or without fine or with death sentence and the police officer has reason to believe on the basis of that information that such person has committed the said offence;

(c) who has been proclaimed as an offender either under this Code or by order of the State Government; or

(d) in whose possession anything is found which may reasonably be suspected to be stolen property and who may reasonably be suspected of having committed an offence with reference to such thing; or

(e) who obstructs a police officer while in the execution of his duty, or who has escaped, or attempts to escape, from lawful custody; or

(f) who is reasonably suspected of being a deserter from any of the Armed Forces of the Union; or

(g) who has been concerned in, or against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists, of his having been concerned in, any act committed at any place out of India which, if committed in India, would have been punishable as an offence, and for which he is, under any law relating to extradition, or otherwise, liable to be apprehended or detained in custody in India; or

(h) who, being a released convict, commits a breach of any rule made under sub-section (5) of section 356; or

(i) for whose arrest any requisition, whether written or oral, has been received from another police officer, provided that the requisition specifies the person to be arrested and the offence or other cause for which the arrest is to be made and it appears therefrom that the person might lawfully be arrested without a warrant by the officer who issued the requisition.

(2) Subject to the provisions of section 42, no person concerned in a non-cognizable offence or against whom a complaint has been made or credible information has been received or reasonable suspicion exists of his having so concerned, shall be arrested except under a warrant or order of a Magistrate.

 

*Relevant Case Laws to Section 41

 

1. State of Maharashtra v. Mohd. Rashid and Another

- It was held that direction by High Court to not arrest the first respondent in any crime, except after written notice to him could not be passed.

 

2. Arnesh Kumar v. State of Bihar and Another

- The Court held as follows :

7. As the offence with which we are concerned in the present appeal, provides for a maximum punishment of imprisonment which may extend to seven years and fine, Section 41(1)(b) CrPC which is relevant for the purpose reads as follows:

“41. When police may arrest without warrant.—(1) Any police officer may without an order from a Magistrate and without a warrant, arrest any person—

(a)***

(b) against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence punishable with imprisonment for a term which may be less than seven years or which may extend to seven years whether with or without fine, if the following conditions are satisfied, namely—

(i)***

(ii) the police officer is satisfied that such arrest is necessary—

(a) to prevent such person from committing any further offence; or

 

(b) for proper investigation of the offence; or

 

(c) to prevent such person from causing the evidence of the offence to disappear or tampering with such evidence in any manner; or

 

(d) to prevent such person from making any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or to the police officer; or

 

(e) as unless such person is arrested, his presence in the court whenever required cannot be ensured,

and the police officer shall record while making such arrest, his reasons in writing:

 

Provided that a police officer shall, in all cases where the arrest of a person is not required under the provisions of this sub-section, record the reasons in writing for not making the arrest.”

7.1. From a plain reading of the aforesaid provision, it is evident that a person accused of an offence punishable with imprisonment for a term which may be less than seven years or which may extend to seven years with or without fine, cannot be arrested by the police officer only on his satisfaction that such person had committed the offence punishable as aforesaid. A police officer before arrest, in such cases has to be further satisfied that such arrest is necessary to prevent such person from committing any further offence; or for proper investigation of the case; or to prevent the accused from causing the evidence of the offence to disappear; or tampering with such evidence in any manner; or to prevent such person from making any inducement, threat or promise to a witness so as to dissuade him from disclosing such facts to the court or the police officer; or unless such accused person is arrested, his presence in the court whenever required cannot be ensured. These are the conclusions, which one may reach based on facts.

7.2. The law mandates the police officer to state the facts and record the reasons in writing which led him to come to a conclusion covered by any of the provisions aforesaid, while making such arrest. The law further requires the police officers to record the reasons in writing for not making the arrest.

7.3. In pith and core, the police officer before arrest must put a question to himself, why arrest? Is it really required? What purpose it will serve? What object it will achieve? It is only after these questions are addressed and one or the other conditions as enumerated above is satisfied, the power of arrest needs to be exercised. In fine, before arrest first the police officers should have reason to believe on the basis of information and material that the accused has committed the offence. Apart from this, the police officer has to be satisfied further that the arrest is necessary for one or the more purposes envisaged by sub-clauses (a) to (e) of clause (1) of Section 41 CrPC.

10. We are of the opinion that if the provisions of Section 41 CrPC which authorises the police officer to arrest an accused without an order from a Magistrate and without a warrant are scrupulously enforced, the wrong committed by the police officers intentionally or unwittingly would be reversed and the number of cases which come to the Court for grant of anticipatory bail will substantially reduce. We would like to emphasise that the practice of mechanically reproducing in the case diary all or most of the reasons contained in Section 41 CrPC for effecting arrest be discouraged and discontinued.

11. Our endeavour in this judgment is to ensure that police officers do not arrest the accused unnecessarily and Magistrate do not authorise detention casually and mechanically. In order to ensure what we have observed above, we give the following directions:

11.1. All the State Governments to instruct its police officers not to automatically arrest when a case under Section 498-A IPC is registered but to satisfy themselves about the necessity for arrest under the parameters laid down above flowing from Section 41 CrPC;

11.2. All police officers be provided with a check list containing specified sub-clauses under Section 41(1)(b)(ii);

11.3. The police officer shall forward the check list duly filled and furnish the reasons and materials which necessitated the arrest, while forwarding/producing the accused before the Magistrate for further detention;

11.4. The Magistrate while authorising detention of the accused shall peruse the report furnished by the police officer in terms aforesaid and only after recording its satisfaction, the Magistrate will authorise detention;

11.5. The decision not to arrest an accused, be forwarded to the Magistrate within two weeks from the date of the institution of the case with a copy to the Magistrate which may be extended by the Superintendent of Police of the district for the reasons to be recorded in writing;

11.6. Notice of appearance in terms of Section 41-A CrPC be served on the accused within two weeks from the date of institution of the case, which may be extended by the Superintendent of Police of the district for the reasons to be recorded in writing;

11.7. Failure to comply with the directions aforesaid shall apart from rendering the police officers concerned liable for departmental action, they shall also be liable to be punished for contempt of court to be instituted before the High Court having territorial jurisdiction.

11.8. Authorising detention without recording reasons as aforesaid by the Judicial Magistrate concerned shall be liable for departmental action by the appropriate High Court.

12. We hasten to add that the directions aforesaid shall not only apply to the cases under Section 498-A IPC or Section 4 of the Dowry Prohibition Act, the case in hand, but also such cases where offence is punishable with imprisonment for a term which may be less than seven years or which may extend to seven years, whether with or without fine.

 

3. Joginder Kumar v. State of UP and Others,

- The Court held as follows :

The quality of Nations civilisation can be largely measured by the methods it uses in the enforcement of criminal law. The horizon of human rights is expanding at the same time, the crime rate is also increasing. The court has been receiving complaints about violation of human rights because of indiscriminate arrests. A realistic approach should be made in this direction. The law of arrest is one of balancing individual rights, liberties and privileges, on the one hand, and individual duties, obligations and responsibilities on the other; Of weighing and balancing the rights, liberties and privileges of the single individual and those of individuals collectively; of simply deciding what is wanted and where to put the weight and the emphasis; of deciding which comes first — the criminal or society, the law violator or the law abider.

In India, Third Report of the National Police Commission at p. 32 also suggested:

“An arrest during the investigation of a cognizable case may be considered justified in one or other of the following circumstances:

(i) The case involves a grave offence like murder, dacoity, robbery, rape etc., and it is necessary to arrest the accused and bring his movements under restraint to infuse confidence among the terror-stricken victims.

(ii) The accused is likely to abscond and evade the processes of law.

(iii) The accused is given to violent behaviour and is likely to commit further offences unless his movements are brought under restraint.

(iv) The accused is a habitual offender and unless kept in custody he is likely to commit similar offences again.

It would be desirable to insist through departmental instructions that a police officer making an arrest should also record in the case diary the reasons for making the arrest, thereby clarifying his conformity to the specified guidelines ….”

The above guidelines are merely the incidents of personal liberty guaranteed under the Constitution of India. No arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The police officer must be able to justify the arrest apart from his power to do so. Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self-esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a police officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reasonable satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person's complicity and even so as to the need to effect arrest. Denying a person of his liberty is a serious matter. The recommendations of the Police Commission merely reflect the constitutional concomitants of the fundamental right to personal liberty and freedom. A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reasonable justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified. Except in heinous offences, an arrest must be avoided if a police officer issues notice to person to attend the Station House and not to leave the Station without permission would do.

 

 

 

Power of preventive arrest

Section 151 of the Code empowers police to arrest a person without the orders of Magistrate if it appears to the police that the person is planning to commit any cognizable offence. In Medha Patkar v. State, the landowners of MP and some other people gathered on road and were shouting slogans and their demands. Police arrested those people along with women and children under Section 151. It was held that there was no danger that the gathering will commit a cognizable offence so arresting them was not in accordance with the provisions of Section 151 of the Code and violated their Fundamental Right enshrined under Article 21.

 

Section 151: Arrest to prevent the commission of cognizable offences.

(1) A police officer knowing of a design to commit any cognizable offence may arrest, without orders from a Magistrate and without a warrant, the person so designing, if it appears to such officer that the commission of the offence cannot be otherwise prevented.

(2) No person arrested under sub-section (1) shall be detained in custody for a period exceeding twenty-four hours from the time of his arrest unless his further detention is required or authorised under any other provisions of this Code or of any other law for the time being in force.

 

*Relevant Case Laws to Section 151

 

1. Ahmed Noormohmed Bhatti v. State of Gujarat and Others

The conditions under which a police officer may arrest a person without an order from a magistrate and without a warrant, have been laid down in section 151 CRPC. He can do so only if he has come to know of a design of the person concerned to commit any cognizable offence. A further condition for the exercise of such power which must also be fulfilled is that the rest should be made only if it appears to the police officer concerned that the commission of the offence cannot be otherwise prevented.

 

Section 151, therefore, expressly lays down the requirements for the exercise of the power under it. If these conditions are not fulfilled and the person is arrested under section 151 CRPC, the arresting authority may be Exposed to proceedings under the law. Subsection two lays down the rules that normally a person so arrested shall be detained in custody not for a period exceeding 24 hours it therefore follows that it the absence of anything else, on expiry of 24 hours, he must be released. The release, however, is not insisted upon only when his further detention is required or authorised under any other provision of the code or of any other law for the time being in force. It, therefore, follows that if before the expiry of 24 hours of detention it is found that the person concerned is required to be detained under any other provision of the code of criminal procedure, or of any other law for the time being in force, he may not Be released and his detention may be continued under such law or such provision of the code. The detention thereafter is not under section 151 but under the relevant provision of the code or any other law for the time being in force as the case maybe section 151, therefore, only provides for arrest of a person to prevent the commission of a cognizable offence by him. The provision cannot be said to be either arbitrary or unreasonable or infringing upon the fundamental rights of a citizen under article 21 and 22 of the Constitution.

 

This section 151 CRPC itself and makes provision for the circumstances in which an arrest can be made under that section and also places a limitation on the period for which a person sorry state may be detained. The guidelines are inbuilt in the provision itself. Those institute guidelines have to be read with the requirements laid down in Joginder Kumar and DK Basu cases. These requirements are in addition to the constitutional and statutory safeguards and do not detract from various directions given by the courts from time to time in connection with the safeguarding of the rights and dignity of the RST. This court has also cautioned that failure to comply with those requirements, shall apart from Rendering the official concerned liable for departmental action, also render him liable to be punished for contempt of court.

 

The guidelines provided under section 151 read with the requirements laid down in the aforesaid two cases provide is an assurance that the power shall not be abused and in case of IPC, the authority concerned shall be adequately punished. Such a provision cannot be held to be unreasonable or arbitrary and therefore, and constitutional, merely because the authority vested with the power may abuse his authority. Since several cases of abuse of authority in matters of Forest and detention have come to notice the Supreme Court has laid down the requirements which have to be followed in all cases of arrest and detention.

 

2. D. K. Basu V/s. State of West Bengal

The Hon'ble Supreme Court in this case issued following guidelines:

 

(1) The police personnel carrying out the arrest and handling the interrogation of the arrestee should bear accurate, visible and clear identification and name tags with their designations. The particulars of all such police personnel who handle interrogation of the arrestee must be recorded in a register.

 

(2) That the police officer carrying out the arrest of the arrestee shall prepare a memo of arrest at the time of arrest and such memo shall be attested by atleast one witness, who may be either a member of the family of the arrestee or a respectable person of the locality from where the arrest is made. It shall also be counter signed by the arrestee and shall contain the time and date of arrest.

 

(3) A person who has been arrested or detained and is being held in custody in a police station or interrogation center or other lock­up, shall be entitled to have one friend or relative or other person known to him or having interest in his welfare being informed, as soon as practicable, that he has been arrested and is being detained at the particular place, unless the attesting witness of the memo of arrest is himself such a friend or a relative of the arrestee.

 

(4) The time, place of arrest and venue of custody of an arrestee must be notified by the police where the next friend or relative of the arrestee lives outside the district or town through the Legal Aid Organisation in the District and the police station of the area concerned telegraphically within a period of 8 to 12 hours after the arrest.

 

(5) The person arrested must be made aware of this right to have someone informed of his arrest or detention as soon as he is put under arrest or is detained.

 

(6) An entry must be made in the diary at the place of detention regarding the arrest of the person which shall also disclose the name of the next friend of the person who has been informed of the arrest and the names and particulars of the police officials in whose custody the arrestee is.

 

(7) The arrestee should, where he so requests, be also examined at the time of his arrest and major and minor injuries, if any present on his/her body, must be recorded at that time. The "Inspection Memo" must be signed both by the arrestee and the police officer effecting the arrest and its copy provided to the arrestee.

 

(8) The arrestee should be subjected to medical examination by a trained doctor every 48 hours during his detention in custody by a doctor on the panel of approved doctors appointed by Director, Health Services of the concerned State or Union Territory. Director, Health Services should prepare such a penal for all Tehsils and Districts as well.

 

(9) Copies of all the documents including the memo of arrest, referred to above, should be sent to the illaqa Magistrate for his record.

 

(10) The arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation.

 

(11) A police control room should be provided at all district and state headquarters, where information regarding the arrest and the place of custody of the arrestee shall be communicated by the officer causing the arrest, within 12 hours of effecting the arrest and at the police control room it should be displayed on a conspicuous notice board.

 

Failure to do so would cause necessary action against the erring officer. The guidelines of the Hon’ble Supreme Court in D.K.Basu’s case are finding place in amended Cr.P.C. under Section 41­B, 41­C and 41­ D.

 

 

3. State of Maharastra v. CCW Council of India

The Hon’ble Apex court in this case observed that “While arresting a female person, all efforts should be made to keep a lady constable present, but in circumstance, where the arresting officers is reasonably satisfied that, such presence of a lady constable is not available or possible and or the delay in arresting caused by securing the presence of a lady constable would impede the course of investigation such arresting officer for reasons to be recorded either before the arrest or immediately after the arrest be permitted to arrest a female person for lawful reasons at any time of the day or night depending on circumstances of the case even without the presence of lady constable”.

 

 

Registering FIR

Police has power to lodge FIR. Section 154 of the Code of Criminal Procedure, 1973 says that police has to record the information related to any cognizable offence.

 

Section 154 : Information in cognizable cases.

(1) 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.

(2) A copy of the information as recorded under sub- section (1) shall be given forthwith, free of cost, to the informant.

(3) Any person aggrieved by a refusal on the part of an officer in charge of a police station to record the information referred to in subsection (1) may send the substance of such information, in writing and by post, to the Superintendent of Police concerned who, if satisfied that such information discloses the commission of a cognizable offence, shall either investigate the case himself or direct an investigation to be made by any police officer subordinate to him, in the manner provided by this Code, and such officer shall have all the powers of an officer in charge of the police station in relation to that offence.

 

*Relevant Cases to Section 154

 

1. Lalita Kumari v. Govt. of UP

Constitution Bench of the Supreme Court in this case held that registration of First Information Report is mandatory under Section 154 of the Code of Criminal Procedure , if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation. If the information received does not disclose a cognizable offence but indicates the necessity for an inquiry, a preliminary inquiry may be conducted only to ascertain whether cognizable offence is disclosed or not. The Supreme Court issued the following Guidelines regarding the registration of FIR.

(i) Registration of FIR is mandatory under Section 154 of the Code, if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation.

(ii) If the information received does not disclose a cognizable offence but indicates the necessity for an inquiry, a preliminary inquiry may be conducted only to ascertain whether cognizable offence is disclosed or not.

(iii) If the inquiry discloses the commission of a cognizable offence, the FIR must be registered. In cases where preliminary inquiry ends in closing the complaint, a copy of the entry of such closure must be supplied to the first informant forthwith and not later than one week. It must disclose reasons in brief for closing the complaint and not proceeding further.

(iv) The police officer cannot avoid his duty of registering offence if cognizable offence is disclosed. Action must be taken against erring officers who do not  register the FIR if information received by him discloses a cognizable offence.

(v) The scope of preliminary inquiry is not to verify the veracity or otherwise of the information received but only to ascertain whether the information reveals any cognizable offence.

(vi) As to what type and in which cases preliminary inquiry is to be conducted will depend on the facts and circumstances of each case. The category of cases in which preliminary inquiry may be made are as under:

(a) Matrimonial disputes/ family disputes (b)Commercial offences

(c) Medical negligence cases (d)Corruption cases

(e) Cases where there is abnormal delay/laches in initiating criminal prosecution, for example, over3 months delay in reporting the matter without satisfactorily explaining the reasons for delay. The aforesaid are only illustrations and not exhaustive of all conditions which may warrant preliminary inquiry.

(vii) While ensuring and protecting the rights of the accused and the complainant, a preliminary inquiry should be made time bound and in any case it should not exceed 7 days. The fact of such delay and the causes of it must be reflected in the General Diary entry.

(viii) Since the General Diary/Station Diary/Daily Diary is the record of all information received in a police station, we direct that all information relating to cognizable offences, whether resulting in registration of FIR or leading to an inquiry, must be mandatorily and meticulously reflected in the said Diary and the decision to conduct a preliminary inquiry must also be reflected, as mentioned above.

 

2. Shyam Depgharia v. State

A message sent by telephone to the police officer and recorded by him in his station dairy, which discloses an information regarding a cognizable offence amounts to FIR.

 

3. Ravishankar Manjhi v. State of Jharkhand

Mere information received on phone by a Police Officer without any details as regards the identity of the accused or the nature of injuries caused by the victims as well as the name of the culprits may not be treated as FIR.

 

 

Power to investigate and procedure of investigation

Section 156 gives the power to police officer to investigate any cognizable offence without the order of a Magistrate and the proceedings of the police cannot be called in question on the ground that this section does not empower police officer to investigate.

 

Section 156 : Police officer' s power to investigate cognizable case.

(1) Any officer in charge of a police station may, without the order of a Magistrate, investigate any cognizable 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.

(2) No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate.

(3) Any Magistrate empowered under section 190 may order such an investigation as above- mentioned.

 

*Relevant Case Laws on Section 156

 

1. Sakiri Vasu v. State of Uttar Pradesh and Others

“In this connection we would like to state that if a person has a grievance that the police station is not registering his FIR under Section 154 Cr.P.C., then he can approach the Superintendent of Police under Section 154(3) CrPC by an application in writing. Even if that does not yield any satisfactory result in the sense that either the FIR is still not registered, or that even after registering it no proper investigation is held, it is open to the aggrieved person to file an application under Section 156(3) CrPC before the learned Magistrate concerned. If such an application under Section 156(3) is filed before the Magistrate, the Magistrate can direct the FIR to be registered and also can direct a proper investigation to be made, in a case where, according to the aggrieved person, no proper investigation was made. The Magistrate can also under the same provision monitor the investigation to ensure a proper investigation.”

17. In our opinion Section 156(3) CrPC is wide enough to include all such powers in a Magistrate which are necessary for ensuring a proper investigation, and it includes the power to order registration of an FIR and of ordering a proper investigation if the Magistrate is satisfied that a proper investigation has not been done, or is not being done by the police. Section 156(3) Cr.P.C., though briefly worded, in our opinion, is very wide and it will include all such incidental powers as are necessary for ensuring a proper investigation.”

“24. In view of the abovementioned legal position, we are of the view that although Section 156(3) is very briefly worded, there is an implied power in the Magistrate under Section 156(3) CrPC to order registration of a criminal offence and/or to direct the officer in charge of the police station concerned to hold a proper investigation and take all such necessary steps that may be necessary for ensuring a proper investigation including monitoring the same. Even though these powers have not been expressly mentioned in Section 156(3) Cr.P.C., we are of the opinion that they are implied in the above provision.

   25. We have elaborated on the above matter because we often find that when someone has a grievance that his FIR has not been registered at the police station and/or a proper investigation is not being done by the police, he rushes to the High Court to file a writ petition or a petition under Section 482 CrPC. We are of the opinion that the High Court should not encourage this practice and should ordinarily refuse to interfere in such matters and relegate the petitioner to his alternating remedy, first under Section 154(3) and Section 36 CrPC before the police officers concerned, and if that is of no avail, by approaching the Magistrate concerned under Section 156(3).”

 

2. CBI v. State of Gujarat

Where FIR already registered, Section 156(3) has no application.

 

3. Ahmad Ali Quraishi v. State of UP

Rejection of application under Section 156(3), in no manner precludes complainant from filing complaint under Section 200.

 

 

 

Power to require attendance of witnesses

According to Section 160(1) of the Code, police can order the witnesses (except the ones mentioned in the proviso to Section 160(1)) to present before himself or any other person provided the order is in writing, the person is acquainted with the facts of case and person is within the limits of police station.

 

Section 160 : Police officer' s power to require attendance of witnesses.

(1) Any police officer, making an investigation under this Chapter may, by order in writing, require the attendance before himself of any person being within the limits of his own or any adjoining station who, from the information given or otherwise, appears to be acquainted with the facts and circumstances of the case; and such person shall attend as so required: Provided that no male person under the age of fifteen years or woman shall be required to attend at any place other than the place in which such male person or woman resides.

(2) The State Government may, by rules made in this behalf, provide for the payment by the police officer of the reasonable expenses of every person, attending under sub- section (1) at any place other than his residence.

 

*Relevant Case Laws to Section 160

 

1. M.N. Sreedharan v State

A person who fails to comply with the written order of the police may be prosecuted for disobedience under Sec. 174, IPC. However, the investigating officer has no authority to use force for compelling attendance; nor does he have any power to arrest or detain such a person. The code also does not empower a Magistrate to issue any process compelling a person to attend before a police officer.

 

2. Pragyna Singh Thakur v. State of Maharashtra

Essentially, Section 160 CrPC deals with the procedure to be adopted by the police officer at pre-arrest stage. Once a person is arrested and is in judicial custody the prayer for bail will have to be considered on merits. Prayer for bail cannot be automatically granted on establishing that there was procedural breach irrespective of the merits of the matter. The appellant has not claimed bail on merits. Therefore, even if assuming that the procedure mentioned in Section 160 was not followed, the prayer of bail cannot be granted at this stage.

 

3. Nandini Satpathy v. P.L. Dani

The insisting on a woman to appear at the police station is a flagrant violation of the proviso to S. 160(1), CrPC. Such deviance must be visited with prompt punishment since policemen may not be a law unto themselves expecting to obey the law.

 

 

 

Examination of witness

As per Section 161 of the Code the police officer who has the power to investigate will examine the witness and reduce their statements in writing. This Section also empowers to record the statement in audio-visual electronic means. Moreover, a woman police officer is required to record the statement of the woman against whom an offence is committed.

 

Section 161 : Examination of witnesses by police

(1) Any police officer making an investigation under this Chapter, or any police officer not below such rank as the State Government may, by general or special order, prescribe in this behalf, acting on the requisition of such officer, may examine orally any person supposed to be acquainted with the facts and circumstances of the case.

(2) Such person shall be bound to answer truly all questions relating to such case put to him by such officer, other than questions the answers to which would have a tendency to expose him to a criminal charge or to a penalty or forfeiture.

(3) The police officer may reduce into writing any statement made to him in the course of an examination under this section; and if he does so, he shall make a separate and true record of the statement of each such person whose statement he records.

 

*Relevant Case Laws to Section 161

 

1. Khehar Singh v. State (Delhi Admn.)

Delay in makin statement under Section 161, May render evidence unreliable.

 

2. K. Aruna Kumari v. Govt. of Andhra Pradesh and Others

The detenu’s statement recorded under Section 161 CrPC accepting allegations against himself may not be legally recorded confession which can be used as substantive evidence against the accused in the criminal case, but it cannot be completely brushed aside on that ground for the purpose of his preventive detention.

 

3. Naresh J. Sukhawani v. Union of India

Statement made before Customs Officials is not a statement recorded by a police officer under S. 161.

 

 

 

Search by Police officer


Whenever an officer in charge of police station or a police officer making an investigation has reasonable grounds for believing that anything necessary for the purposes of an investigation into any offence which he is authorised to investigate may be found in any place within the limits of the police station of which he is in charge, or to which he is attached, and that such thing cannot in his opinion be otherwise 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 thing for which search is to be made, search, or cause search to be made, for such thing in any place within the limits of such station.

 

Section 165 : Search by police officer.

(1) Whenever an officer in charge of a police station or a police officer making an investigation has reasonable grounds for believing that anything necessary for the purposes of an investigation into any offence which he is authorised to investigate may be found in any place with the limits of the police station of which he is in charge, or to which he is attached, and that such thing cannot in his opinion be otherwise 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 thing for which search is to be made, search, or cause search to be made, for such thing in any place within the limits of such station.

(2) A police officer proceeding under sub- section (1), shall, if practicable, conduct the search in person.

(3) If he is unable to conduct the search in person, and there is no other person competent to make the search present at the time, he may, after recording in writing his reasons for so doing, require any officer subordinate to him to make the search, and he shall deliver to such subordinate officer an order in writing, specifying the place to be searched, and so far as possible, the thing for which search is to be made; and such subordinate officer may thereupon search for such thing in such place.

(4) The provisions of this Code as to search- warrants and the general provisions as to searches contained in section 100 shall, so far as may be, apply to a search made under this section.

(5) Copies of any record made under sub- section (1) or sub- section (3) shall forthwith be sent to the nearest Magistrate empowered to take cognizance of the offence, and the owner or occupier of the place searched shall, on application, be furnished, free of cost, with a copy of the same by the Magistrate.

 

*Relevant Case Laws to Section 165

 

1. State of Maharashtra v. Natwarlal Damodardas Soni

Even if search is illegal, that will not vitiate the seizure and the further investigation.

 

2. State of Punjab v. Balbir Singh

If a police officer, even if he happens to be “empowered” officer while effecting an arrest or search during normal investigation into offences purely under the provisions of CrPC fails to strictly comply with the provisions of Section 100 and 165 CrPC including the requirement to record reasons, such failure would only amount to an irregularity.

 

3. Manish Dixit v. State of Rajasthan 

it was held that search cannot be held to be invalid on the ground of absence of examination of independent witness. City people are quite conscious of such consequences and they would normally be wary to signify to such witnessing.

 

 

 

Power to inquire and report on suicide

Section 174 of the Code empowers police to inquire and report the cases of suicide, or when has been killed by another person, by an animal, machinery, accident or has died under circumstances raising reasonable suspicion that some other person has committed an offence.

 

Section 174 : Police to enquire and report on suicide, etc.

(1) When the officer in charge of a police station or some other police officer specially empowered by the State Government in that behalf receives information that a person has committed suicide, or has been killed by another or by an animal or by machinery or by an accident, or has died under circumstances raising a reasonable suspicion that some other person has committed an offence, he shall immediately give intimation thereof to the nearest Executive Magistrate empowered to hold inquests, and, unless otherwise directed by any rule prescribed by the State Government, or by any general or special order of the District or Sub- divisional Magistrate, shall proceed to the place where the body of such deceased person is, and there, in the presence of two' or more respectable inhabitants of the neighbourhood, shall make an investiga- tion, and draw up a report of the apparent cause of death, describing such wounds, fractures, bruises, and other marks of injury as may be found on the body, and stating in what manner, or by what weapon or instrument (if any); such marks appear to have been inflicted.

(2) The report shall be signed by such police officer and other persons, or by so many of them as concur therein, and shall be forthwith forwarded to the District Magistrate or the Sub- divisional Magistrate.

(3) When -

(i) the case involves suicide by a woman within seven years of her marriage; or

(ii) the case relates to the death of a woman within seven years of her marriage in any circumstances raising a reasonable suspicion that some other person committed an offence in relation to such woman; or

(iii) the case relates to the death of a woman within seven years of her marriage and any relative of the woman has made a request in this behalf; or

(iv) there is any doubt regarding the cause of death; or

(v) the police officer for any other reason considers it expedient so to do, he shall. subject to such rules as the State Government may prescribe in this behalf, forward the body, with a view to its being examined, to the nearest Civil Surgeon, or other qualified medical man appointed in this behalf by the State Government, if the state of the weather and the distance admit of its being so forwarded without risk of such putrefaction on the road as would render such examination useless.

(4) The following Magistrates are empowered to hold inquests, namely, any District Magistrate or Sub-divisional Magistrate and any other Executive Magistrate specially empowered in this behalf by the State Government or the District Magistrate.

 

*Relevant Case Laws to Section 174

 

1. Babu Poojari v. State of Karnataka

Inquest report is not an evidence by itself.

 

2. Shakila Khader v. Nausheer Kama

Inquest is concerned with establishing the cause of death only.

 

3. George v. State of Kerala

Inquest report could not be used to contradict the prosecution witness to whom the dying declaration was made by the deceased.



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