Information to the Police and their powers to investigate Investigation- is always to be conducted by a police officer or any person authorised by a Magistrate It includes all the proceedings under the Code for collection of evidence -sec.2(h) Investigation, inquiry and trial are different; Only investigation can be done by the Police Police have no power to investigate noncognizable offences. Such offences can be investigated only by the orders of a Magistrate having power to try such cases or commit the case for trial sec.155(2) - Police have Powers to investigate cognizable offences without the orders of a Magistrate. Power provided by section 156 Any Officer in charge of a Police station(SHO) can investigate any cognizable case which a court has jurisdiction over the local area within which the limits of such police station would have power to inquire or try -sec.156(1) Information to be given by public in respect of certain offences Every person who is aware of the commission of an offence or of the intention of any other person to commit certain offences is required to give such information forthwith to the nearest Magistrate or Police officer sec.39(1) Such information is to be provided in respect of the following offences under the IPC (i) sections 121 to 126, both inclusive, and section 130 (that is to say offences against the State specified in Chapter VI of IPC); (ii) sections 143, 144, 145, 147 and 148 (that is to say, offences against the public tranquility specified in Chapter VIII of IPC); (iii) sections 161 to 165A, both inclusive (that is to say, offences relating to illegal gratification); (iv) sections 272 to 278, both inclusive (that is to say, offences relating to adulteration of food and drugs, etc.); (v) sections 302, 303 and 304 (that is to say, offences affecting life); (va) section 364A (that is to say, offence relating to kidnapping for ransom, etc);] (vi) section 382 (that is to say., offence of theft after preparation made for causing, death, hurt or restraint in order to the committing of the theft); (vii) sections 392 to 399, both inclusive, and section 402 (that is to say, offences of robbery and dacoity); (viii) section 409 (that is to say, offence relating to criminal breach of trust by public servant, etc.); (ix) sections 431 to 439, both inclusive (that is to say, offence of mischief against property); (x) sections 449 and 450 (that is to say, offence of house-trespass); (xi) sections 456 to 460, both inclusive (that is to say, offences of lurking house trespass); and (xii) sections 489A to 489E, both inclusive (that is to say, offences relating to currency notes and bank notes). The duty to inform is not confined to specific offences committed in India This duty is extended to even in respect of acts committed outside India, provided such acts if committed in India would constitute such offences -Sec.39(2) Act intended as a precautionary measure to keep a close watch over the persons indulging in criminal activities in neighbouring countries A person would be exempted from this duty if he has a reasonable excuse for not giving such information Burden of proving the existence of such an excuse is on the person required to give such information Intentional omission to give such information as required by section 39 is punishable under sec.176 and 202 IPC Sec.176 IPC. Omission to give notice or information to public servant by person legally bound to give it.— Whoever, being legally bound to give any notice or to furnish information on any subject to any public servant, as such, intentionally omits to give such notice or to furnish such information in the manner and at the time required by law, shall be punished ….. Sec.202IPC- Intentional omission to give information of offence by person bound to inform.— Whoever, knowing or having reason to believe that an offence has been committed, intentionally omits to give any information respecting that offence which he is legally bound to give, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine, or with both. Information to be given by village officers Every officer employed in connection with the affairs of a village and every person residing in a village shall forthwith communicate to the nearest Magistrate or to the officer in charge of the nearest police station, whichever is nearer, any information which he may posses respecting :- (a) the permanent or temporary residence of any notorious receiver or vendor of stolen property in or near such village: (b) the resort to any place within, or the passage through, such village any person whom he knows, or reasonably suspects, to be a thug, robber, escaped convict or proclaimed offender; (c) the Commission of, or intention to commit, in or near such village any nonbailable offence or any offence punishable under section 143, section 144, section 145 , section 147 or section 148 of the Indian Penal Code (45 of 1860). (d) the occurrence in or near such village of any sudden or unnatural death or of any death under suspicious circumstances or the discovery in or near such village of any corpse or part of a corpse, in circumstances which lead to a reasonable suspicion that such a death has occurred or the disappearance from such village of any; person in circumstances which lead to a reasonable suspicion that a non-bailable offence has been committed in respect of such person. (e) the Commission of, or intention to commit, at any place out of India near such village any act which, if committed in India, would be an offence punishable under any of the following sections of the Indian penal Code (45 of 1 860), namely, sections 231 to 238 (both inclusive), section 302, 304, 382, 392 to 399 (both inclusive), 402, 435, 436, 449, 457, to 460 (both inclusive), section 489A, 489B, 489C and 489D; (f) any matter likely to affect the maintenance of order of the prevention of crime or the safety of person or property respecting which the District Magistrate by general or special order made with the previous sanction of the State Government, has directed him to communicate information. Information in non-cognizable cases and investigation of such cases If any person gives information to an officer in charge of a PS of the commission of a non-cognizable offence, the officer shall enter or have cause to enter the substance of the information in a book to be kept by such an officer in the form prescribed by the State Government. The officer shall then refer the informant to the Magistrate sec.155(1) No Police officer shall investigate a Noncognizable case without the orders of a competent Magistrate (Magistrate should have power to try such cases and commit the case for trial) sec.155(2) But once such orders are issued by a Magistrate, the police officer receiving the order may exercise the same powers in respect of the investigation as an officer i.c. of a PS may exercise in a cognizable case except the power to arrest without a warrant sec.155(3) No directions or guidance provided to the Magistrates as to how this power is to be exercised Power not to be exercised arbitrararily or capriciously Probably he has to consider the totality of circumstances and consider whether it would be proper and just to order investigation by the Police If a Magistrate who is not competent to order investigation erroneously orders investigation in good faith an investigation u.s.155(2), the proceedings shall not be merely set aside merely on the ground of his being not so empowered sec.460(b) If a police officer investigates a noncognizable offence without the orders of a Magistrate, such a non-conformance to mandatory provisions laid down in sec.155(2) may be a material one vitiating the ultimate proceedings and may also be considered violative of Art.21 of the Constitution However, whether such non-compliance is material one vitiating the proceedings may depend on the facts and circumstances in each case If such a breach is brought to the notice of the court at an early stage of trial the court will have to consider the nature and extent of violation and pass appropriate orders for such reinvestigation as may be called for In general, if such a breach is not noticed at an early stage and the trial is concluded the defect or illegality of investigation would not vitiate trial unless it caused prejudice to the accused and resulted in miscarriage of justice in terms of section 465 CrPC Where a case relates to two or more offences and at least one of such offences is cognizable, the case shall be deemed to be a cognizable case even though the other offences are noncognizable sec.155(4) Information in cognizable cases and investigation of such cases Any person can give information to the police regarding the commission of a cognizable offence Information to be given to the officer in charge of a Police Station having jurisdiction for investigating the case sec.154(1) If the information is given orally to such officer the information will have to be reduced into writing by the officer or under his direction –sec.154(1) Information if given in writing, or if it is reduced into writing it shall be signed by the informant sec.154(1) Information as taken down in writing shall be read over to the informant -sec.154(1) Substance of the information is to be entered by the police officer in a book kept in the prescribed form sec.154(1) Book called Station House Diary or General diary A copy of the information as recorded shall be forthwith given to the informant sec.154(2) Statement of the informant as recorded under sec.154 is called the First Information Report(FIR); it sets the criminal law in motion; it is the basis for investigation If the information is given by a woman against whom an offence under the following sections of IPC is alleged to have been committed or attempted, then such information shall be recorded by a woman police officer or any woman officer – first proviso to sec.154(1) Voluntarily causing grievous hurt by use of acid, etc. –sec.326A Voluntarily causing grievous hurt by use of acid, etc. -Sec.326B. Assault or criminal force to woman with intent to outrage her modesty sec.354 Sexual harassment and punishment for sexual harassment. sec.354A. Assault or use of criminal force to woman with intent to disrobe sec.354B Voyeurism - sec.354C. Stalking -sec. 354D. Punishment for Rape -sec.376 Causing death or resulting in persistent vegetative state of victim -sec.376A Sexual intercourse by husband upon his wife during separation sec.376B Sexual intercourse by a person in authority –sec,376C Gang rape -sec.376D Repeat offenders -sec.376E Word, gesture or act intended to insult the modesty of a woman -sec.509 (a) Information pertaining to such offences if alleged to have been committed or attempted, on a woman who is mentally or physically disabled temporarily or permanently shall be recorded by a police officer, at the residence of the person seeking to report such offence or at a convenient place of such person’s choice, in the presence of an interpreter or a special educator, as the case may be; (b) Recording of such information shall be videographed (c) As soon as possible the police officer shall get the statement of such a person recorded by a Judicial Magistrate u.s. 164(5A)(a) second proviso to sec.154(1) Police have powers to investigate cognizable offences; power provided only to a SHO No proceedings of a police officer in any such case shall be questioned at any stage on the ground that the police officer was not empowered to investigate the case under sec.156 -sec.156 After recording of FIR Investigation of a cognizable offence begins Investigation of a cognizable consists of the following steps( H.N. Rishbud v State of Delhi AIR 1955 SC 196; State of MP v Mubarak Ali AIR 1959 SC 707) 1. Proceeding to the spot 2. Ascertainment of the facts and circumstances of the case 3. Discovery and arrest of the suspected offender 4. Collection of evidence relating to the commission of an offence which may consist of (a) the examination of witnesses(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; and 5.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 the necessary steps for the same by the filing of a charge-sheet under section 173 Procedure for investigation of a cognizable offence Investigation of a cognizable offence commences when a police officer in charge of a police station has reason to suspect the commission of a cognizable offence Basis for the suspicion may be the FIR u.s.154 or any other information of the police The officer must be having the power to investigate u.s.156 that is the police officer must have jurisdiction to investigate the offence sec.157(1) Where reasonable suspicion of the commission of a cognizable offence exists, the police officer must immediately send a report of the circumstances creating the suspicion, to a Magistrate who has powers to take cognizance of such offence upon a police report -sec.157(1) The State Government my direct that every such report shall be sent to the magistrate through a superior police officer appointed by the State Government for this purpose -sec.158(1) The superior officer may give such instructions to the officer in charge of the police station as he thinks fit, and shall, after recording such instructions on the report, transmit the same without delay to the Magistrate -sec.158(2) Police officer in charge of the police station shall then proceed to the spot to investigate the facts and circumstances of the case and if necessary, to take measures for discovery and arrest of the offender -sec.157(1) The police officer in charge of the police station may depute one of his subordinate officer not below such rank as prescribed by the State Govt. -sec.157(1) Under certain circumstances it is not necessary for the police officer in charge of a police station to proceed to the spot and to investigate the case. These are 1. When the case is not of a serious nature and the information as to the commission of offence has been given against any person by name -proviso (a) to sec.157(1) 2. 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 -proviso (b) to sec.157(1) Under both the circumstances the officer in charge of the police station should state in his report reasons for not fully complying with the provisions Where the officer in charge of the police station feels that there is no sufficient ground for investigation and does not take up investigation, the police officer is required to notify the informant immediately to the informant in the manner prescribed by the State Govt. that he will not investigate the case or cause it to be investigated sec.157(2) In relation to the offence of rape, statement of the victim should be obtained at the residence of the victim or in the place of her choice and as far as practicable by a woman police officer in the presence of her parents or guardian or near relatives or social worker of the locality -second Proviso to sec. 157(1) A few aspects of FIR Requirements for an FIR under section 154 of CrPC. The information must have been given to the officer in-charge of a police station. Such information must relate to commission of a cognizable offence It must have been the earliest report to the commission of a crime on the basis of which investigation would commence. It must be in writing or be reduced in writing (if oral) and must be signed by the informant. The information reduced in writing must be read out to the informant and a copy thereof should be given to the informant forthwith free of cost. The substance of the information must be entered in a book called Station House Diary or General diary Police officer refusing to register case pertaining to cognizable offence If a police officer refuses to register a case the following remedies are available Inform the Superintendent of Police of the District to take action -sec.154(4) Approach Court -sec.156(3) Any person aggrieved by a refusal on the part of an officer in charge of a police station to record the information of a cognizable offence 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. -sec.154(3) Section 156(3) empowers any Magistrate who is empowered to take cognizance of offences under section 190 may order investigation of a cognizable offence According to section 190, subject to certain restrictions, on taking cognizance in respect of certain offences, …Any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf by the CJM may take cognizance of any offence (a) upon receiving a complaint of facts which constitute such offence; (b) upon a police report of such facts; (c)upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed. “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. -sec.2(d) A Magistrate can order an investigation under section 156(3) only at the precognizance stage Before a Magistrate directs investigation under section 156(3) he has to notionally decide that investigation by police is needed and inquiry by himself may not be sufficient On complaints sent to them police make investigation of the case and send a report to the Magistrate u.s.173 A Magistrate empowered to take cognizance of an offence under section 190 instead of ordering investigation u.s.156(3) may take cognizance of the offence on a complaint and examine the complainant u.s.200 Then the Magistrate may either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit for the purpose of deciding whether or not there is sufficient ground for proceeding- sec.202(1) Conducting a preliminary enquiry before registering the FIR The issue whether a police officer can conduct a preliminary enquiry before registering the FIR as has been discussed by the SC in Lalit kumari v State of UP (2014) 2 SCC 1 SC. After discussing this subject SC has issued the following directives 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. v) 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, over 3 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. Delay in FIR Delay in every case cannot be a ground for suspicion. The reason for the delay has to be satisfactorily explained Sahebrao v State AIR 2006 SC 2002 Venkate Gowda v State (2006) 13 SCCC203 Two FIRs There cannot be two FIRs against the same accused in respect of the same case. But when there are rival versions in respect of the same episode, they would normally take the shape of two different FIRs and investigation can be carried on under both of them by the same investigating agency; second complaint as a counter case is not prohibited T.T. Antony v State of Kerala;Upkar Singh v Veda Prakash AIR 2004 SC 4320; Determinants of a FIR The determinants of a FIR are It should be neither vague or indefinite; but it should be information of facts disclosing the commission of a cognizable offence It may be given by anybody It is not necessary that the offender or the witnesses should be named -State v P.A.Madhu 1984 CrLJ 1438 What is not FIR Statements given to the police after commencement of investigation Typed copy of statement reduced to writing Vague or indefinite information Cryptic message for help not about occurrence of cognizable offence Use of FIR Cannot be used as a substantive evidence but can be used only to corroborate or contradict the informant under sections 157 and 145 of the Indian Evidence Act Former statements of witness may be proved to corroborate later testimony as to same fact.— In order to corroborate the testimony of a witness, any former statement made by such witness relating to the same fact, at or about the time when the fact took place, or before any authority legally competent to investigate the fact, may be proved. Sec.157IEA Cross-examination as to previous statements in writing.— A witness may be cross-examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him, or being proved; but, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him. Sec.145 IEA. Considering sections 157 and 148 it is quite obvious that FIR cannot be used for the purpose of corroborating or contradicting any witness other than the one lodging the FIR In certain cases it may be used u.s.32(1) of the Evidence Act as to the cause of death or under sec.8 of the Evidence Act as showing his conduct When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question. .. Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question. IEA Section 32(1) Power to require attendance of witnesses For effective investigation, information relevant to the commission of offence under investigation will have to be obtained from persons acquainted with the facts and circumstances of the case. It is therefore necessary to empower the investigating officer to call for and to secure the attendance of persons who are likely to have relevant information Such power provided by sec.160 A police officer investigating a case can by order require the attendance before himself of any person, if the following conditions are satisfied (a) Order requiring the attendance must be in writing (b) The person must be one who is acquainted with the facts and circumstances of the case (c) the person is within the limits of the police station of the investigating police officer or within the limits of any adjoining station It is the legal duty of every person to attend if so required by a police officer -sec.160(1) Intentional omission to attend liable for prosecution under sec.174IPC The following categories of persons are not required to attend at any place other than where they residePersons below fifteen years Persons above sixty five years A woman Mentally disabled persons Physically disabled persons - proviso to sec.160(1) Examination of witnesses by the police Oral examination of witnesses dealt under sections 161 and 162 Object of section 161 – to obtain evidence which may be produced at the trial later Power provided to investigating police officer to orally examine any person acquainted with the facts and circumstances of the case – sec.161(1) On the requisition of the investigating officer any officer not below the rank as specified by the Govt. may also orally examine any person acquainted with the facts and circumstances of the case -sec.161(1) A person acquainted with the facts and circumstances of the case is required to answer truly all questions relating to the case put by the investigating officer; however he is not bound to answer such questions, the answers to which would have a tendency to expose him to a criminal charge or to a penalty of forfeiture - sec.161(2) A person being legally bound to answer truly all questions, relating to such case refuses to answer any question demanded of him is liable to be punished u.s. 179 IPC If a person gives a false answer which he knows or beleves to be false liable to be punished u.s.193 IPC The area covered by Art.20(3) of the constitution and sec.161(2) CrPC is substantially same -Nandini Satpaty v P.L. Dani 1978 SCC (Cri) 236 The police officer may reduce into writing any statement made to him in the course of examination of a person; and if he does so he should make a separate and true record of each such person whose statement he records sec.161(3) The statement of witnesses should be recorded as promptly as possible Unjustified and unexplained long delay in the recording of a statement by the IO may render the evidence of such witness unreliable Recording of a joint statement of several witnesses during the investigation is a clear contravention of sec.161(3) Though it would neither render the witnesses incompetent nor render their evidence inadmissible, it can affect the weight attached to their evidence Non-compliance with the provisions of section 161(3) whether would vitiate the trial depends upon the facts and circumstances and facts of each case Unless the noncompliance has resulted in causing prejudice to the accused in his defence and has resulted in a failure of justice it would not vitiate the trial A statement made under section 161(3) may also be recorded by audio-video electronic means - First proviso to sec.161(3) If an offence is alleged to have been committed or attempted to have been committed on a woman under the following sections of IPC, her statement should be recorded by a woman police officer or any woman officer Sections 354, 354- A, 354- B, 354-C, 354-D,; 376, 376-A, 376-B, 376-C, 376-C, 376D; 376-E 509 - second proviso to sec.161(3) Statement made to a police officer under section 161(3) does not require the signature of the person making the statement sec.162(1) Evidentiary value of statements made to police Sec.162 provides the rules for using of statements made by the police during investigation Sec.162 sets the limitations for the use of statements recorded by the police during investigation at any inquiry or trial. No statement made by any person to a police officer in the course of an investigation under Chapter XII shall, if reduced to writing, be signed by the person making it; Any such statement or any record thereof, whether in a police diary or otherwise, or any part of such statement or record, cannot be used for any purpose other than the purposes mentioned in sec.162 -sec.162(1) The statement made in respect of any offence under investigation at the time when such statement was made can be used at any inquiry or trial subjected to the conditions imposed When any witness is called for the prosecution in such inquiry or trial whose statement has been reduced into writing ,any part of his statement, if duly proved, may be used by the accused, and with the permission of the Court, by the prosecution, to contradict such witness in the manner provided by section 145 of the Indian Evidence Act, 1872 (1 of 1872 ….and when any part of such statement is so used, any part thereof may also be used in the re- examination of such witness, but for the purpose only of explaining any matter referred to in his cross- examination. -proviso to sec.162(1) Examination of the proviso to sec.162(1) reveals the following (1)The statement made by a witness to the police during the course of the investigation of an offence can be used in trial if the person making the statement is called a prosecution witness. (2) The statement can be used for the purpose of contradicting such witness in the manner provided by section 145 of the IEA (3) the statement can be used for the purpose of contradiction (i) by the defence (ii) by the prosecution with the permission of the court (might be desirable if a prosecution witness is won over by the other side) (4) If any part of the statement is used for contradiction any part of the statement can be used in the re-examination of the witness for the only purpose of explaining any matter referred in his crossexamination Restrictions imposed by section 162 is applicable only where such statement is sought to be used “ at any inquiry or trial in respect of any offence under investigation at the time when such statement was made.” These restrictions would not apply (a) if any such statement is used in any other proceeding other than an inquiry or trial or (b) even at an inquiry or trial but in respect of an offence other than that which was under investigation at the time when such statement was made In Khatri(IV) v State of Bihar 1981 SCC (Cri) 503 SC has observed as follows“Section 162 has been enacted for benefit of the accused and to protect him against overzealous police officers and untruthful witnesses. But, this protection is unnecessary in any proceeding other than an inquiry or trial in respect of the offence under investigation and hence the bar created by the section is a limited bar. … .. It has no application in a civil proceeding or in a proceeding under Article 32 or 226 of the Constitution and a statement made before a police officer in the course of investigation can be used as evidence in such proceeding, provided it is otherwise relevant under the Indian Evidence Act” An analysis of the way the concept has developed examined by SC in Tahsildar Singh v State of U.P. AIR 1959 SC 1012 Restrictions imposed by sec.162 do not apply to any statements falling under sec.32(1) and section 27 of the IEA -sec.162(2) In Munnu Raja v State of M.P. 1976 Cri LJ 1718 and Dalip Singh v State of Punjab 1979 Cri. LJ 700 observations of SC indicate Although a dying declaration recorded by the police officer during the course of investigation is admissible u.s. 32 of the EA, …. …in view of the exemption provided by sec.162(2), it is better to leave such dying declaration out of consideration until and unless the prosecution satisfies the court as to why it was not recorded by a magistrate or by a doctor No confession made by any person whilst he is in the custody of a police officer, unless it be made in the immediate presence of a Magistrate, shall be proved as against such person. -sec.26 IEA Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved sec.27 IEA Requirements of sec.27 IEA are The fact of which evidence is to be given must be relevant to the issue. The fact must have been discovered The discovery must have been in consequence of some information received from the accused and not by accused’s own act The person giving the information must be accused of any offence He must be in the custody of a police officer The discovery of a fact in consequence of information received from an accused in custody must be deposed to Thereupon only that portion of the information which relates distinctly or strictly to the fact discovered can be proved; the rest is inadmissible Explanation to sec.162 states that an omission to state a fact or circumstance in the statement referred to in sec.162(1) amounts to contradiction Every omission however is not contradiction An omission can amount to contradiction f it appears to be significant and otherwise relevant having regard to the context in which such omission occurs Laying down any test or criteria to determine an omission is significant “ and otherwise relevant” is difficult Therefore the explanation leaves it by stating that “ whether any omission amounts to a contradiction in the particular context shall be a question of fact” Statements not to be obtained by pressure or inducement Fair investigation requires that the statement made to the police or other authorities in the course of investigation should be true and unbiased To ensure that such statements are made without any pressure, fear or inducement section 163 puts forth certain restrictions No police officer or other person in authority shall offer or make, or cause to be offered or made, any such inducement, threat or promise as is mentioned in section 24 of the Indian Evidence Act, 1872 (1 of 1872 ) – sec.163(1) A confession made by an accused person is irrelevant in a criminal proceeding, if the making of the confession appears to the Court to have been caused by any inducement, threat or promise, having reference to the charge against the accused person,…. … proceeding from a person in authority and sufficient, in the opinion of the Court, to give the accused person grounds, which would appear to him reasonable, for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him -sec.24 IEA Sec.163(2) is a corollary to the rule contained in sec.163(1) No police officer or other person shall prevent, by any caution or otherwise, any person from making in the course of any investigation under Chapter XII any statement which he may be disposed to make of his own free will Nothing in sec.162 (2) shall affect the provisions section 164(4) -proviso to sec.163(2) Recording of confessions and statements Any confession made to a police officer is not admissible in evidence as per sec.25 of IEA Statements recorded by the police during investigation can be used only for the purposes mentioned in Sec.162 of CrPC A special procedure is provided by sec.164 for recording of confessions and statements made during the course of investigation before a competent Magistrate Sec.164 deals with the recording of confessions and other statements which are not confessions A confession recorded under sec.164 can be used as substantive evidence Record of such a confession is admissible in evidence even though the magistrate recording the confession is not called as a witness (sec.80 Of IEA) A non-confessional statement recorded u.s.164 is not substantive evidence If the maker of such a statement is called as a witness in the trial, his earlier statement can be used for corroborating or contradicting him u.s 157 or sec.145 of the IEA The mode of recording a confession is not the same as in the case of recording a statement Mode of recording a confession is more elaborate so as to ensure that only free and voluntary confessions alone are recorded and recorded accurately An analysis of sec.164 reveals the following points 1. A confession or a statement can be recorded only by MM or a Judicial Magistrate -sec.164(1) 2. A police officer on whom powers of a Magistrate are conferred by any law is not competent to record confession u.s.164 -second proviso to sec.164(1) 3. Confessions or statements can be recorded u.s.164 either in the course of an investigation or at any time afterwards but before the commencement of inquiry or trial -sec.164(1) 4. Recording of confession or statement may be recorded by audio-video electronic means in the presence of the advocate of the accused person - First proviso to sec.164(1) 5. Before recording any such confession the Magistrate is required to explain to the person making the confession that (a) he is not bound to make such confession and (b) if he makes a confession it can be used against him as evidence sec.164(2) 6. In the memorandum required to be made by the Magistrate recording the confession the fact of giving the above warning should be mentioned -sec.164(4) 7.Magistrate not to record any confession unless upon questioning the person making it, he has reason to believe that it was made voluntarily sec.164(2) 8. confession will have to be recorded in the manner provided in sec.281 for recording the examination of the accused person; the person making the confession has to sign -sec.164(4) 9. Any statement other than a confession shall be recorded in the manner provided for recording of evidence 10.In case of offences punishable under section 354, 354A to 354D, 376 376 A -376 E and 509 IPC the statement of person against whom the such offence is committed has to be taken as soon as the commission of the offence is brought to the notice of police -sec.164 5A(a) 11. the Magistrate recording the confession or statement u.s.164 is required to send the record directly to the Magistrate by whom the case is to be inquired or tried Non-compliance with the provisions of sec.164 or 281 Any non-compliance with the provisions of sec.164 can be cured u.s.463 CrPC Non- compliance with provisions of section 164 or section 281 If any Court before which a confession or other statement of an accused person recorded, or purporting to be recorded under section 164 or section 281, is tendered, or has been received, in evidence finds that any of the provisions of either of such sections have not been complied with by the Magistrate recording the statement, …. …..it may, notwithstanding anything contained in section 91 of the Indian Evidence Act, 1872 (1 of 1872 ), take evidence in regard to such non- compliance, and may, if satisfied that such noncompliance has not injured the accused in his defence on the merits and that he duly made the statement recorded, admit such statement. (2)The provisions of this section apply to Courts of appeal, reference and revision. sec.463 In Rabindra Kumar Pal @ Dara Singh v Republic of India AIR 2011 SC 1436 has summarised the principles regarding sc.164 CrPC as follows (i) The provisions of Section 164 Cr.P.C. must be complied with not only in form, but in essence. (ii) Before proceeding to record the confessional statement, a searching enquiry must be made from the accused as to the custody from which he was produced and the treatment he had been receiving in such custody in order to ensure that there is no scope for doubt of any sort of extraneous influence proceeding from a source interested in the prosecution. (iii) A Magistrate should ask the accused as to why he wants to make a statement which surely shall go against his interest in the trial. (iv) The maker should be granted sufficient time for reflection. (v) He should be assured of protection from any sort of apprehended torture or pressure from the police in case he declines to make a confessional statement. (vi) A judicial confession not given voluntarily is unreliable, more so, when such a confession is retracted, the conviction cannot be based on such retracted judicial confession. (vii) Non-compliance of Section 164 Cr.P.C. goes to the root of the Magistrate's jurisdiction to record the confession and renders the confession unworthy of credence. (viii) During the time of reflection, the accused should be completely out of police influence. The judicial officer, who is entrusted with the duty of recording confession, must apply his judicial mind to ascertain and satisfy his conscience that the statement of the accused is not on account of any extraneous influence on him. (ix) At the time of recording the statement of the accused, no police or police official shall be present in the open court. (x) Confession of a co-accused is a weak type of evidence. (xi) Usually the Court requires some corroboration from the confessional statement before convicting the accused person on such a statement. Medical examination of the victim of rape. In order to ensure availability of a proper evidence in rape cases, the victim should be sent for medical examination within twenty four hours from the time of receiving the information relating to the commission or attempt to commit such offence -sec 161A The Medical practitioner has to make a detailed examination and send the report to the I.O for onward transmission to the Magistrate as a part of police report The exact time of commencement and completion of the examination should be noted in the report (2)(5)(6) -sec.164A Production of documents and things required for investigation The main processes for compelling production of documents and things are (a) Summons issued by a court (b) Written order issued by a police officer in charge of a police station (c) Search and seizure with or without a warrant These processes may be used for The investigation, inquiry or trial in respect of any offence; or For any other proceeding generally taken as a preventive or precautionary measure Summons to produce document or other thing Whenever the production of any document or other thing is necessary or desirable for the purposes of any investigation, inquiry, trial or other proceeding(i) A Court may issue a summons, or (ii) Any officer in charge of a police station may issue a written order, to any person having such a document or thing to produce the same as required by such summons or written order sec.91(1) This rule would not be applicable in respect of the following (a) any unpublished official record relating to any affairs of State, or certain official communications sec.91(3) r.w.sec.123IEA;sec.91(3) r.w. sec.124 IEA (b) any letter, postcard, telegram or other document or any parcel or thing in the custody of the postal or telegraph authority. (c) an accused person- since it would be otherwise violative of Art.20(3) of the Constitution which prohibits selfincrimination If any document, parcel or thing In the custody of a postal or telegraph authority is required for the purpose of any investigation, inquiry, trial or other proceeding, DM, CJM, court of session or HC may require such authority to deliver the document, or thing to a person specified -sec.92(1) In case of urgency, any Magistrate, or Commissioner of Police or District Superintendent of Police, may require the postal or telegraph authority, as the case may be, to cause search to be made for and to detail such document, parcel or thing pending the order of a District Magistrate, Chief Judicial Magistrate etc. -92(2) When is search warrant issued Under the following circumstances a search warrant is issued (a) Where any Court has reason to believe that a person to whom a summons or order under section 91 or a requisition under section 92(1) has been, or might be, addressed, will not or would not produce the document or thing as required by such summons or requisition, or (b) where such document or thing is not known to the Court to be the possession of any person, or (c) where the Court considers that the purposes of any inquiry, trial or other proceeding under this Code will be served by a general search or inspection -sec.93(1)(a)-(c) A general search means a search not in respect of any specific documents or things but a roving inquiry for the purpose of discovering the documents or things which might involve persons with criminal liability Inspection refers to a locality or place and not of documents Search warrant u.s.93 is issued in Form 10 If a DM,SDM or JMFC has reason to believe that any place is used for the deposit or sale of stolen property, or for the deposit or sale or production of any objectionable articles like counterfeit coins, stamps, currency notes, false seals and instruments or materials used in making them and obscene objects as per sec.292 IPC,……. …he may authorise any police officer above the rank of constable to enter and search the place and size the articles -sec.94 Search warrant u.s 94 is issued in Form 11 Where any newspaper, or book, or any document contains any matter the publication of which is punishable under any of the sections 124A, 153A, 153B, 292, 293 295A IPC, the State Government may, by notification, stating the grounds for such action, declare every copy of such newspaper or book etc. to be forfeited to Government Upon such declaration any Magistrate by warrant authorise any police officer not below the rank of sub-inspector to enter upon and search for such copies in any premises where these may reasonably suspected to be sec.95 Any person aggrieved by notification can approach the High Court for redressal – sec 96 If a DM, SDM or JMFC has reason to believe that any person is wrongfully confined, he may issue a search- warrant for the search of such person If a person is found in the course of a search he should be forthwith taken before a Magistrate who shall pass appropriate orders - sec.97 Following provisions of CrPC are applicable to all search warrants (issued under sections 93, 94,95 and 97) -sec.99 Private citizens are empowered to assist a person other than a police officer in the execution of a warrant directed to that person -sec.38 Every warrant issued by a Court shall be in writing, signed by the presiding officer of such Court and shall bear the seal of the Court. -sec.70(1) Every warrant shall remain in force until it is cancelled by the Court which issued it, or until it is executed. sec.70(2) A warrant directed to any police officer may also be executed by any other police officer whose name is endorsed upon, the warrant by the officer to whom it is directed or endorsed -sec.74 A warrant may be executed at any place in India sec.77 A warrant may be executed outside the local jurisdiction of the court the issuing court may forward it to any executive Magistrate or district SP or CP within the local limits of whose jurisdiction it is to be executed -sec.78 A police officer who is directed to execute a warrant beyond the local jurisdiction of the court issuing it has to get it endorsed locally by the Executive Magistrate or SHO where the warrant is to be executed and then execute the warrant -sec.79(1) If there is likelihood of delay in getting the endorsement it may be executed without such endorsement -sec.79(2)