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INVESTIGATION UNDER CODE OF CRIMINAL PROCEDURE,1973

INVESTIGATION UNDER CODE OF CRIMINAL PROCEDURE,1973

 

Investigation may be likened to the long month of pregnancy and solving a problem to a day of birth. To Investigate a problem is ,indeed, to solve it”…


INVESTIGATION UNDER CODE OF CRIMINAL PROCEDURE,1973

 

Introduction

The article presents study of the Meaning, Purpose and procedure of Investigation. The most vital purpose of the Code of Criminal Procedure is to find the culprit or the mastermind, as we say, behind a crime and ensure that he is brought to justice.

To perform this function, the courts require evidenceand its proof supporting the case of the prosecution and if something is found in favour of the accused, it has to be used in favour of the accused. Now, how do we find this evidence? Who finds this evidence for the court and what is the purpose or object of this process of finding evidence? To answer these questions, the present article deals with the meaning and purpose of an investigation under the Code of Criminal Procedure, 1973.

 

Sec 2(h) defines Investigation under CrPC:-

All Proceedings for collection of evidence conducted by the police officer or any person (other than magistrate) authorized by magistrate on his behalf.”

                                                                  OR 

“Investigation chiefly comprises the process of collection of Evidence”.

 

In State v. Pareshwar Ghosi- The court observed that etymologically, the term investigation means any process that involves sifting of materials or search of relevant data for the purpose of ascertainment of facts in issue in a matter in hand.

 

 

 

• MAIN OBJECT OF INVESTIGATION:-

Main object of Investigation is to uncover the truth and preserve the proof of Evidence in order to address the Allegation and identify the guilty so that he/she can be rewarded with suitable punishment according to law.

 

 

 

• DIFFERENCE BETWEEN INVESTIGATION AND INQUIRY

Investigation- Sec 2(h) defines the Investigation as “All Proceedings for collection of evidence conducted by the police officer or any person ( other than magistrate) authorized by magistrate on his behalf”.

And such Proceedings are carried out by an authority like police officer or anyone else authorized by the magistrate and it is pertinent to note that it cannot be Judicial Proceeding.

 

Inquiry-  Section 2(g) of CRPC defines Inquiry as  “Every Inquiry other than trial conducted under the CrPC by a Magistrate or Court”. It may or may not be a Judicial Process.

 

• HOW DOES AN INVESTIGATION START?

Police Officer may start its Investigation alongwith the Investigation Procedure under the code of Criminal Procedure-

The following are the sections which lead to initiation of an investigation-

1. Section 154 of CrPc- When any information is received by the Police Officer of any Cognizable case.

 

2. Section 155 of CrPc- When information as to any Non-Cognizable case is reported to the police officer and Investigation of such cases can be carried out.

 

3. Section 156 of CrPc- Any officer in charge of a police station may, without the order of a Magistrate, investigate any Cognizable case.

 

4. Section 157 of CrPc- This section states the procedure for investigation preliminary Inquiry.

 

 

• SECTION 154 of CrPC:- Information in Cognizable Offences

Sec 154 is a section that deals with FIRs. Hence FIR is not been defined anywhere in the code of criminal procedure but it is a initial step to proceed a criminal trial. If the offence has occurred, aggrieved person can go to police officer to register its FIR against the Accused and FIR is the first step prosecuting towards Accused i.e. “First Information Report”.

 

Sec154 has various aspects of filing FIR i.e. given below:-

1. The commission of the Offence may be given to the police officer in writing or the oral form. If the person has given FIR by Oral means then it is the duty of the police officer to convert it into written form and get it signed by the person who is filing FIR.

 

2. The substance of FIRs must also be recorded by entering it into register that is to be maintained as per state prescribed laws.

 

3. According to Sec  207, a copy of FIR  must be provided to the accused as soon as possible without charging any cost after the investigation has been completed and Chargesheet has been filed. According to Section 173 a copy of chargesheet is also provided if once filed in the court after investigation.

 

4. According to Amendment in 2013 in Sec 154, when the Informant is woman and offence is related to Acid Attacks, act that insults modesty of a woman etc. (Sec 326(A), 326(B), Sec 354, Sec 354 (A) (B) (C) (D), SEC 376, Sec 376(A) (B) (C) (D) (E), Sec 509, in such circumstances FIR must be recorded by woman officer.

 

Sec(c) of CrPC defines Cognizable Offences:- Cognizable offences are the one in which the police can arrest the Accused without warrant. In cognizable offences, the police officer can investigate on his own without permission from the Magistrate. Example – Murder, Rape, Dowry, etc.

 

 

WHETHER THE REGISTRATION OF FIR IS NECESSARY?

 

• The Court after hearing the party relied on the Judgment of Lalita Kumari v. State of U.P., (2014) 2 SCC 1

 

➢ Which mandates that registration of FIR is mandatory under Section 154 of Code of Criminal Procedure, 1973.  The Court held that the police officer cannot avoid his duty of registering the offence if the cognizable offence is disclosed and the action should be taken against erring officer who does not register the FIR.

 

➢ The court further held that in order to ascertain the information regarding the cognizable offence it was important to conduct the preliminary inquiry. 

 

➢ The court thus instructed the Police to lodge the report and conduct the preliminary inquiry within one week and further instructed the petitioner that if the action is not taken, it shall be open to him to approach the higher officials, as provided under Section 154(3) of the Code of Criminal Procedure, 1973[AvdheshBhawaniprasad Yadav v. State of Gujarat, Special Criminal Application No. 930 of 2019, Order dated 07-02-2019].

 

• Lallan Chaudhary v. State of Bihar:

It has been held by the Supreme Court in the case of Lallan Chaudhary v. State of Bihar that:-

1. The mandate of Sec 154 of CrPC is manifestly clear that if any information disclosing a cognizable offence is laid before an officer in charge of a police station, such police officer has no other option but to register the case on the basis of such information.

 

2. Genuineness or credibility of the information is not considered to be a condition precedent for registration of a case.

 

 

 

• Sec 155 of CRPC:- Information in Non Cognizable Offences
❖ Any offence which is not a cognizable offence is a Non- Cognizable offence. 

 

❖ Non-Cognizable Offence is a case in which a police officer has no authority to arrest without a Warrant and where the police needs to take order U/s 155(2)of CrPC from the Magistrate onwards to arrest the Accused.

 

❖ Once such order is received from the Magistrate the police may treat the said case and investigate it as the same way as it is a Cognizable Offence as per Sec 155(3).

 

 

❖ Where a case relates to two or more offences of which at least one is Cognizable, the case shall be deemed to be a Cognizable case, notwithstanding that the other offences are non- cognizable pursuant to Sec 155(4).

 

 

Sec2(I) defines Non-Cognizable Offences :-Non-Cognizable offences are those offences which requires a warrant for arrest. Non-cognizable offences are less serious in nature. In these offences, it is mandatory for the police to obtain permission from the Magistrate to conduct the investigation. Example-Defamation, Forgery, Assault, etc.

 

• SEC 156 OF CRPC:- POLICE OFFICER POWER’S TO INVESTIGATE COGNIZABLE OFFENCES

 

➢ The power under Section 156 (3) of the Criminal Procedure Code, 1973 (Cr.P.C.) can be exercised by the Magistrate to direct the police officer to conduct investigation, only in respect of a Cognizable Offence.
➢ In a judgment passed by the Madras High Court has reiterated that once a Magistrate has taken cognizance of a criminal offence under Section 200 of the Code of Criminal Procedure (CrPC) ,he cannot fall back on Section 156 (3), CrPC to direct the police to register an FIR.

 

➢ Section 156(3) Cr.P.C – If the police refuse on any point to register an offence, the aggrieved person can approach the Ld. Magistrate by making an application U/s 156(3) Cr.P.C in order to present its case before the Magistrate so that a direction can be given by the Magistrate to the police authorities to take cognizance of the case and register a F.I.R.  Before approaching to the Magistrate, the aggrieved person will have to comply with 154(3) i.e. to inform the S.P/DCP about the complaint and request him to take cognizance of the offence as the Police officials subordinate to him are refusing to do so.

 

➢ Applications under Section 156 (3) are to be supported by an affidavit duly sworn by the applicant who seeks the invocation of the jurisdiction of the Magistrate. This is done, so that the person making the application is conscious and also endeavors to see that no false affidavit is made. 

Note:

It is important to note that, the power to order police investigation by the Magistrate under Section 156 (3) of the Cr.P.C is different from the power to direct investigation conferred by Section 202 (1) of the Cr.P.C. If the application does not indicate that any evidence is required to be collected and preserved and the applicant/complainant is familiar with the names and addresses of the accused as well as the witnesses, then in such a case, no investigation by the police is required. The Magistrate may proceed to take cognizance and decline the request under Section 156 (3) of the Cr. P.C.

 

• SEC 157- PROCEDURE FOR INVESTIGATION PRELIMINARY INQUIRY

Under Section 157 of the Code of Criminal Procedure, the procedure of investigation for preliminary inquiry under criminal cases has been incorporated. It requires the intimation of information to the police officer on the commission of a crime in the form of complaint. Before the commencement of the investigation, the police officer has to satisfy himself about certain grounds. If the grounds are present, the investigation shall be begun with.

 

• What is the role of a magistrate in criminal investigation?

The stages have been stated under in a chronological manner about the role of magistrate in a criminal investigation for better understanding:-

❖ As Soon as the FIR is registered. When the arrest in any case is effected by the Investigating officer, then in that situation the role of magistrate commences on his production before the court and while deciding the question of the validity of arrest and need for further custody –(Judicial or Police i.e. U/s 167 CrPC).

 

❖ While deciding misc. applications for recording of statement(s) u/s 164 of the Cr.P.C, test identification parades, etc. magisterial interventions are a necessity.

 

❖ In cases where Further investigation, post-filing of police report u/s 173 of the Cr.P.C is required.

 

• IS THERE ANY PROVISION FOR RE-INVESTIGATION?

It has been observed that re-investigation has been prohibited and only further investigation is permissible. Under section 173(8) of the Code, it has been explained that further investigation is allowed and it is continuation of the earlier investigation but does not mean a fresh investigation or investigation to start from ab initio and wiping out earlier investigation completely.

The statute does not mandate taking of prior permission of the magistrate for further investigation. The police have statutory right to carry out further investigation after filling of chargesheet.

 

Conclusion

It is thus seen that the “process of investigation characterizes the nature of policing to a great extent and constitutes as one of the most important occasions”for bringing the police and ‘publics’ into contact. The process is not an indivisible whole but involves many interactional stages assuming different forms of contact appropriate to each.

 

Investigation may be likened to the long month of pregnancy and solving a problem to a day of birth. To Investigate a problem is ,indeed, to solve it”…

 

Introduction

The article presents study of the Meaning, Purpose and procedure of Investigation. The most vital purpose of the Code of Criminal Procedure is to find the culprit or the mastermind, as we say, behind a crime and ensure that he is brought to justice.

To perform this function, the courts require evidenceand its proof supporting the case of the prosecution and if something is found in favour of the accused, it has to be used in favour of the accused. Now, how do we find this evidence? Who finds this evidence for the court and what is the purpose or object of this process of finding evidence? To answer these questions, the present article deals with the meaning and purpose of an investigation under the Code of Criminal Procedure, 1973.

 

Sec 2(h) defines Investigation under CrPC:-

All Proceedings for collection of evidence conducted by the police officer or any person (other than magistrate) authorized by magistrate on his behalf.”

                                                                  OR 

“Investigation chiefly comprises the process of collection of Evidence”.

 

In State v. Pareshwar Ghosi- The court observed that etymologically, the term investigation means any process that involves sifting of materials or search of relevant data for the purpose of ascertainment of facts in issue in a matter in hand.

 

 

 

• MAIN OBJECT OF INVESTIGATION:-

Main object of Investigation is to uncover the truth and preserve the proof of Evidence in order to address the Allegation and identify the guilty so that he/she can be rewarded with suitable punishment according to law.

 

 

 

• DIFFERENCE BETWEEN INVESTIGATION AND INQUIRY

Investigation- Sec 2(h) defines the Investigation as “All Proceedings for collection of evidence conducted by the police officer or any person ( other than magistrate) authorized by magistrate on his behalf”.

And such Proceedings are carried out by an authority like police officer or anyone else authorized by the magistrate and it is pertinent to note that it cannot be Judicial Proceeding.

 

Inquiry-  Section 2(g) of CRPC defines Inquiry as  “Every Inquiry other than trial conducted under the CrPC by a Magistrate or Court”. It may or may not be a Judicial Process.

 

• HOW DOES AN INVESTIGATION START?

Police Officer may start its Investigation alongwith the Investigation Procedure under the code of Criminal Procedure-

The following are the sections which lead to initiation of an investigation-

1. Section 154 of CrPc- When any information is received by the Police Officer of any Cognizable case.

 

2. Section 155 of CrPc- When information as to any Non-Cognizable case is reported to the police officer and Investigation of such cases can be carried out.

 

3. Section 156 of CrPc- Any officer in charge of a police station may, without the order of a Magistrate, investigate any Cognizable case.

 

4. Section 157 of CrPc- This section states the procedure for investigation preliminary Inquiry.

 

 

• SECTION 154 of CrPC:- Information in Cognizable Offences

Sec 154 is a section that deals with FIRs. Hence FIR is not been defined anywhere in the code of criminal procedure but it is a initial step to proceed a criminal trial. If the offence has occurred, aggrieved person can go to police officer to register its FIR against the Accused and FIR is the first step prosecuting towards Accused i.e. “First Information Report”.

 

Sec154 has various aspects of filing FIR i.e. given below:-

1. The commission of the Offence may be given to the police officer in writing or the oral form. If the person has given FIR by Oral means then it is the duty of the police officer to convert it into written form and get it signed by the person who is filing FIR.

 

2. The substance of FIRs must also be recorded by entering it into register that is to be maintained as per state prescribed laws.

 

3. According to Sec  207, a copy of FIR  must be provided to the accused as soon as possible without charging any cost after the investigation has been completed and Chargesheet has been filed. According to Section 173 a copy of chargesheet is also provided if once filed in the court after investigation.

 

4. According to Amendment in 2013 in Sec 154, when the Informant is woman and offence is related to Acid Attacks, act that insults modesty of a woman etc. (Sec 326(A), 326(B), Sec 354, Sec 354 (A) (B) (C) (D), SEC 376, Sec 376(A) (B) (C) (D) (E), Sec 509, in such circumstances FIR must be recorded by woman officer.

 

Sec(c) of CrPC defines Cognizable Offences:- Cognizable offences are the one in which the police can arrest the Accused without warrant. In cognizable offences, the police officer can investigate on his own without permission from the Magistrate. Example – Murder, Rape, Dowry, etc.

 

 

WHETHER THE REGISTRATION OF FIR IS NECESSARY?

 

• The Court after hearing the party relied on the Judgment of Lalita Kumari v. State of U.P., (2014) 2 SCC 1

 

➢ Which mandates that registration of FIR is mandatory under Section 154 of Code of Criminal Procedure, 1973.  The Court held that the police officer cannot avoid his duty of registering the offence if the cognizable offence is disclosed and the action should be taken against erring officer who does not register the FIR.

 

➢ The court further held that in order to ascertain the information regarding the cognizable offence it was important to conduct the preliminary inquiry. 

 

➢ The court thus instructed the Police to lodge the report and conduct the preliminary inquiry within one week and further instructed the petitioner that if the action is not taken, it shall be open to him to approach the higher officials, as provided under Section 154(3) of the Code of Criminal Procedure, 1973[AvdheshBhawaniprasad Yadav v. State of Gujarat, Special Criminal Application No. 930 of 2019, Order dated 07-02-2019].

 

• Lallan Chaudhary v. State of Bihar:

It has been held by the Supreme Court in the case of Lallan Chaudhary v. State of Bihar that:-

1. The mandate of Sec 154 of CrPC is manifestly clear that if any information disclosing a cognizable offence is laid before an officer in charge of a police station, such police officer has no other option but to register the case on the basis of such information.

 

2. Genuineness or credibility of the information is not considered to be a condition precedent for registration of a case.

 

 

 

• Sec 155 of CRPC:- Information in Non Cognizable Offences
❖ Any offence which is not a cognizable offence is a Non- Cognizable offence. 

 

❖ Non-Cognizable Offence is a case in which a police officer has no authority to arrest without a Warrant and where the police needs to take order U/s 155(2)of CrPC from the Magistrate onwards to arrest the Accused.

 

❖ Once such order is received from the Magistrate the police may treat the said case and investigate it as the same way as it is a Cognizable Offence as per Sec 155(3).

 

 

❖ Where a case relates to two or more offences of which at least one is Cognizable, the case shall be deemed to be a Cognizable case, notwithstanding that the other offences are non- cognizable pursuant to Sec 155(4).

 

 

Sec2(I) defines Non-Cognizable Offences :-Non-Cognizable offences are those offences which requires a warrant for arrest. Non-cognizable offences are less serious in nature. In these offences, it is mandatory for the police to obtain permission from the Magistrate to conduct the investigation. Example-Defamation, Forgery, Assault, etc.

 

• SEC 156 OF CRPC:- POLICE OFFICER POWER’S TO INVESTIGATE COGNIZABLE OFFENCES

 

➢ The power under Section 156 (3) of the Criminal Procedure Code, 1973 (Cr.P.C.) can be exercised by the Magistrate to direct the police officer to conduct investigation, only in respect of a Cognizable Offence.
➢ In a judgment passed by the Madras High Court has reiterated that once a Magistrate has taken cognizance of a criminal offence under Section 200 of the Code of Criminal Procedure (CrPC) ,he cannot fall back on Section 156 (3), CrPC to direct the police to register an FIR.

 

➢ Section 156(3) Cr.P.C – If the police refuse on any point to register an offence, the aggrieved person can approach the Ld. Magistrate by making an application U/s 156(3) Cr.P.C in order to present its case before the Magistrate so that a direction can be given by the Magistrate to the police authorities to take cognizance of the case and register a F.I.R.  Before approaching to the Magistrate, the aggrieved person will have to comply with 154(3) i.e. to inform the S.P/DCP about the complaint and request him to take cognizance of the offence as the Police officials subordinate to him are refusing to do so.

 

➢ Applications under Section 156 (3) are to be supported by an affidavit duly sworn by the applicant who seeks the invocation of the jurisdiction of the Magistrate. This is done, so that the person making the application is conscious and also endeavors to see that no false affidavit is made. 

Note:

It is important to note that, the power to order police investigation by the Magistrate under Section 156 (3) of the Cr.P.C is different from the power to direct investigation conferred by Section 202 (1) of the Cr.P.C. If the application does not indicate that any evidence is required to be collected and preserved and the applicant/complainant is familiar with the names and addresses of the accused as well as the witnesses, then in such a case, no investigation by the police is required. The Magistrate may proceed to take cognizance and decline the request under Section 156 (3) of the Cr. P.C.

 

• SEC 157- PROCEDURE FOR INVESTIGATION PRELIMINARY INQUIRY

Under Section 157 of the Code of Criminal Procedure, the procedure of investigation for preliminary inquiry under criminal cases has been incorporated. It requires the intimation of information to the police officer on the commission of a crime in the form of complaint. Before the commencement of the investigation, the police officer has to satisfy himself about certain grounds. If the grounds are present, the investigation shall be begun with.

 

• What is the role of a magistrate in criminal investigation?

The stages have been stated under in a chronological manner about the role of magistrate in a criminal investigation for better understanding:-

❖ As Soon as the FIR is registered. When the arrest in any case is effected by the Investigating officer, then in that situation the role of magistrate commences on his production before the court and while deciding the question of the validity of arrest and need for further custody –(Judicial or Police i.e. U/s 167 CrPC).

 

❖ While deciding misc. applications for recording of statement(s) u/s 164 of the Cr.P.C, test identification parades, etc. magisterial interventions are a necessity.

 

❖ In cases where Further investigation, post-filing of police report u/s 173 of the Cr.P.C is required.

 

• IS THERE ANY PROVISION FOR RE-INVESTIGATION?

It has been observed that re-investigation has been prohibited and only further investigation is permissible. Under section 173(8) of the Code, it has been explained that further investigation is allowed and it is continuation of the earlier investigation but does not mean a fresh investigation or investigation to start from ab initio and wiping out earlier investigation completely.

The statute does not mandate taking of prior permission of the magistrate for further investigation. The police have statutory right to carry out further investigation after filling of chargesheet.

 

Conclusion

It is thus seen that the “process of investigation characterizes the nature of policing to a great extent and constitutes as one of the most important occasions”for bringing the police and ‘publics’ into contact. The process is not an indivisible whole but involves many interactional stages assuming different forms of contact appropriate to each.

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