UNIT-II

Investigation:-

“Investigation” has been defined under S. 2 (h) of the Criminal Procedure Code. It includes all the
proceedings under “the Code of Criminal Procedure, 1973” for the collection of evidence conducted by a
Police officer or by any person (other than a Magistrate) who is authorized by a Magistrate. The officer-
in- charge of a Police Station can start investigation either on information or otherwise (section 157
Cr.P.C.). The investigation consists of the following steps starting from the registration of the case:-

(i). Registration of the case as reported by the complainant u/s 154 Cr.P.C.,

(ii). Proceeding to the spot and observing the scene of crime,

(iii). Ascertainment of all the facts and circumstances relating to the case reported, (iv). Discovery and
arrest of the suspected offender(s),

(v) Collection of evidence in the form of oral statements of witnesses (sections 161/162 Cr.PC.), in the
form of documents and seizure of material objects, articles and movable properties concerned in the
reported crime,

(vi) Conduct of searches of places and seizure of properties, etc.

(vii) Forwarding exhibits and getting reports or opinion from the scientific experts (section 293 Cr.P.C)
(viii) Formation of the opinion as to whether on the materials collected, there is a case to place the
accused before a magistrate for trial and if so, taking necessary steps for filing a charge sheet, and

(ix) Submission of a Final Report to the court (section 173 Cr.P.C.) in the form of a Charge Sheet along
with a list of documents and a Memo of Evidence against the accused person(s).

Case - In Adri Dharan Das v. State of W.B. , it has been opined that: “arrest is a part of the process of
investigation intended to secure several purposes. The accused may have to be questioned in detail
regarding various facets of motive, preparation, commission and aftermath of the crime and connection
of other persons, if any, in the crime.”

In Niranjan Singh v. State of U.P. , it has been laid down that investigation is not an inquiry or trial
before the Court and that is why the Legislature did not contemplate any irregularity in investigation as
of sufficient importance to vitiate or otherwise form any infirmity in the inquiry or trial.

In S.N.Sharma v. Bipen Kumar Tiwari , it has been observed that the power of police to investigate is
independent of any control by the Magistrate.

In State of Bihar v. J.A.C. Saldanha , it has been observed that there is a clear cut and well demarcated
sphere of activity in the field of crime detection and crime punishment and further investigation of an
offence is the field exclusively reserved for the executive in the Police Department. Manubhai Ratilal
Patel v. State of Gujarat and Others,(2013) 1 SCC 314.

The documentation for the Police investigation shall include the following papers namely :- (a). First
Information Report (section 154 Cr.P.C.),

(b) Crime details form, - (I F.2) (c). Arrest / court surrender memo,

(c). Arrest / court surrender memo,

(d). Property seizure memo

(e). Final Report Form (section 173 Cr.P.C.)

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 the Criminal Procedure Code. 1973.

Note : The courts have no control in such cases over the investigation or over the action of the Police in
holding such investigation. Where the offence takes place during night time, the investigation officer
should bring out in his investigation the existence of light at the time of the incident. For this, he should
clearly bring out the position of Electricity post / lights (public place or private place) in the rough sketch
of the scene of occurrence or the scene of crime to be drawn on the crime details form. While recording
the statements of witnesses of the occurrence or the observation mahazar witnesses, the facts relating
to the availability of light at the spot should be highlighted.

Refusal of Investigation

(1). The following principles are laid down to guide the exercise of their discretion by Station House
Officers in the matter of refusing investigation under section 157 (1) (b) of the Criminal Procedure Code.

(2). The investigation may be properly refused in the following cases:-

(a) Triviality:- Trivial offences, such as are contemplated in section 95 of the Indian Penal Code. “
Nothing is an offence by reason that it causes or that is intended to cause, or that it is known to be likely
to cause any harm, if that harm is so slight that no person or ordinary sense and temper would
complaint of such harm”.

(b) Civil Nature:- Cases clearly of civil nature or in which complainant is obviously endeavouring to set
the criminal law in motion to support a civil right.

(c) Petty thefts:- Cases of petty theft of property less than Rs. 10/- in value, provided that the accused
person is not an old offender, nor a professional criminal, and that the property does not consist of
sheep or goats.

(d) Injured person not wishing an inquiry:- Unimportant cases in which the person, injured does not
wish inquiry, unless

(i) the crime is suspected to be the work of a professional or habitual offender or

(ii) a rowdy element

(iii) the investigation appears desirable in the interests of the Public.

(e). Undetectable simple cases:- Simple cases of house-breaking or housetrespass and petty thefts
of unidentifiable property, is none of which cases is there any clue to work upon or any practical chance
of detection, provided that there is nothing to indicate that the offence has been committed by a
professional criminal.

(f) Exaggerated assaults:- Assault in cases which have been obviously exaggerated by the addition of the
other charges such as theft.

Report to be sent in case of Refusal of Investigation

When an investigation is refused, at once a First Information Report only need be submitted to the court
with copies usually sent to others, specifically indicating in the FIR format under column 13 – “ACTION
TAKEN” that “the above report reveals commission of offences under section …………………….., but falling
under the categories of triviality or civil nature or petty theft or injured person not wishing to have an
inquiry or undetectable simple case or exaggerated assault coupled with theft, was registered in crime
number ……… and investigation ‘REFUSED’. It is also stated that further report will not be submitted,
under section 157 (1) (a) (b) and (2) of the Code of Criminal Procedure. “When information as to the
commission of any such offence is given against any person by name and the case is not of a serious
nature, the officer-in-charge of a Police Station need not proceed in person or depute a subordinate
officer to make an investigation on the spot ;” “ If it appears to the officer-in-charge of a Police Station
that there is no sufficient ground for enquiring on an investigation, he shall not investigate the case;” “
The officer-in- charge of the Police Station shall state in his report his reasons for not fully complying
with the requirements, “the officer shall also forthwith notify to the informant, if any, in such manner as
may be prescribed by the State Government, that fact that he will not investigate the case or cause it to
be investigated.” Note (i). The Station House Officer, after registering a case of trivial nature under
appropriate sections of the law and the connected circumstances and refusing investigation of that case,
shall give a copy of the FIR to the informant or the complainant and obtain an acknowledgement in the
counterfoil copy of the FIR. (ii). The SHO will not send any further report of such cases including the final
report under section 173 Cr.P.C.

Refusal of Local Investigation

The power to abstain from local investigation under section 157 (1) (a) of the Criminal Procedure Code is
primarily intended to be exercised in cases which are complete on the information brought to the
station, requiring no further enquiry.

Investigation to be Impartial

Investigating officers are warned against prematurely committing themselves to any view of the facts
for, or against a person. The aim of the investigating officer should be to find out the truth and to
achieve this purpose, it is necessary to preserve an open mind throughout the Inquiry.

Further Investigation

The mere undertaking of a further investigation either by the investigating officer on his own or upon
the directions of the superior police officer or pursuant to a direction by the Magistrate concerned to
whom the report is forwarded does not mean that the report submitted under Section 173 (2) is
abandoned or rejected. It is only that either the investigating agency or the court concerned is not
completely satisfied with the material collected by the investigating agency and is of the opinion that
possibly some more material is required to be collected in order to sustain the allegations of the
commission of the offence indicated in the report. Vipul Shital Prasad Agarwal v. State of Gujarat and
another, (2013) 1 SCC 197.

INQUIRY:

According to S. 2(g)"inquiry" means every inquiry, other than a trial, conducted under this Code by a
Magistrate or Court.

Case – The word Inquiry has been defined u/s 2 (g), Cr.P.C. It is evident from the Provision that every
Inquiry other than a trial conducted by the Magistrate or Court is an Inquiry. No specific mode or
manner of inquiry is provided u/s 20, of the code. In the inquiry envisaged u/s 202, Cr.P.C. examination
of the complainant only is necessary with the option of examining the witnesses present, if any. This
exercise by the Magistrate, for the purpose of deciding whether or not there is sufficient ground for
proceeding against the accused, is nothing but an Inquiry envisaged u/s 202.

An inquiry is basically a proceeding wherein the magistrate or court applies the judicial mind and the
purpose of such judicial mind is to determine whether further proceedings moving towards the trial
shall be taken or not. Inquiry as a stage of criminal process commences with the cognizance taken by
magistrate u/s 190. However the filing of complaint or the police report whereupon the magistrate
applies his mind on the point whether he shall take cognizance or not will also be deemed to be a part of
the stage of inquiry.

The inquiry proceedings moves uptill the stage of commencement of charge framing. Thereafter with
the charge of framing the trial process starts. During an inquiry some important proceedings that can be
taken place in the inquiry. For Example :

1. Taking of Cognizance

2. Complaint proceeding
3. Dismissal of complaint

4. Issue of process

5. Handing over of documents

6. Fixation of date for 1st hearing etc.

TRIAL:-

Trial has three basic stages, which normally occur in the same order. Investigation (where evidences are
to be collected), Inquiry (A judicial proceeding where judge ensures for himself before going on trial,
that there are reasonable grounds to believe the person to be guilty) and trial. The term trial has not
been defined in the CrPC, however is commonly understood to mean – a judicial proceeding where
evidences are allowed to be proved or disproved, and guilt of a person is adjudged leading to a acquittal
or a conviction.

Trials are normally divided into Warrant Trials and Summons Trials. A criminal trial starts with framing of
charges, if a person is not discharged- trial begins, by framing of charge and reading and explaining to
him. After framing of charges the judge proceeds to take the “plea of guilt” which is an opportunity to
the accused to acknowledge that he pleads guilty and does not wish to content the case. Here the
judge’s responsibility is onerous, he has to, first ensure – plea of guilt is free and voluntary. Secondly - he
has also to ensure that if there had been no plea of guilt – was the prosecution version if unrebutted-
would have led to conviction. If both the requirements are met – then judge can record and accept plea
of guilt and convict the accused after listening to him on sentence

After plea of guilt is taken, if accused pleads “not guilty” or court does not accept his plea of guilt, trial
moves on- prosecutor then explains to the court the basic outline of the case and what evidences he
proposes to lead in order to prove the same. He ask the court to summon witnesses so that court can
record their evidence. As the prosecution has to start leading evidence to bring home the offence to the
accused – it is said “The Burden of Proof lies on the Prosecution”. The basic rule is whoever asserts the
affirmative of an issue has the burden to prove facts on which the accused’s liability depends, and this
burden of proof - is not a light burden – the prosecution has to prove that the accused is guilty beyond
reasonable doubts. This is primarily for two reasons:

1. A person’s (accused’s) life and liberty is involved.

2. And the state with the investigative machinery at its disposal is sufficiently armed to get good
evidence which an individual would not have.

So since now the burden of proof is on the prosecution it has to prove facts which incriminate the
accused. When witnesses for the prosecution are called they are first examined by the prosecutor –
then cross examination by the defence advocate, and with the leave of court prosecutor can again
examine to clarify the loopholes exposes during toss.

After the prosecutor has led its evidence – court asks the accused to himself enter the witness box but in
order to explain circumstances that appeared against him – he has given an opportunity to give personal
explanations. This is a remarkable manifestation of Audi Alteram Partem where the court makes a direct
dialogue with the accused to know what his take is. This is not a chance to the court to bequile or cross
examine the accused. Any answer given by accused is not to be used as evidence against him but the
court may take into consideration to adjudge overall trustworthiness of the case. This is done u/s 311
CrPC, after the examination. If the court feels that prosecution has not successfully brought home the
guilt – it may acquit – else if it feels that they have sufficiently discharged their burden – then it asks
defence if it seeks to lead evidence, and the same cycle again. Now after evidence from both sides is
recorded. Parties then make arguments on the same, and in the end court pronounces the judgement.

In case of Acquittal the accused is set at liberty. In case of conviction – the punitive dilemma begins. The
court has to fix another hearing to decide on the quantum of sentence. Here the prosecution as well as
the defence can lead evidences that would have been fatal earlier, in order to aggravate or mitigate the
punishment. Here the court gives equal leverage to the “Crime” as well as the “Criminal”. Earlier the
gravity of crime used to be the sole criteria – however in recent times, there has been a definitive shifts
of focus from crime to criminal which manifests growing importance of reformation at the end of
punishment. The court at this stage would also consider whether the accused is entitled to the benefits
of probation or admonition.

Distinction between Investigation, Inquiry and Trial:-

Investigation, inquiry and trial are three different stages of a criminal case. The case is first investigated
by the police to ascertain whether an offence has actually been committed and if so, by whom and the
nature of evidence available for the prosecution.

Inquiry is the second stage which is conducted by a Magistrate for the purpose of committing the
accused to sessions or discharging him when no case has been made out. In case of complaints made to
a Magistrate, it refers to a preliminary inquiry made by him under Section 202 to ascertain the truth or
falsehood of the complaint or whether there is any matter which calls for investigation by a criminal
court.

The final stage of the case comes when the accused is put on trial before the Sessions Judge or the
Magistrate when he is empowered by law to try the cases himself.

Investigation and Inquiry :

(1) An investigation is made by a police officer or by some person authorized by a Magistrate but is
never made by a Magistrate or a court. An inquiry is a judicial proceeding made by a Magistrate or a
court.

(2) The object of an investigation is to collect evidence for the prosecution of the case, while the object
of an inquiry is to determine the truth or falsity of certain facts with a view to taking further action
thereon.

(3) Investigation is the first stage of the case and normally precedes enquiry by a Magistrate.

Inquiry and Trial :

Both inquiry and trial are judicial proceedings, but they differ in the following respects:

(1) An enquiry does not necessarily mean an inquiry into an offence for, it may, as well relate to
matters which are not offences, e.g., inquiry made in disputes as to immovable property with regard to
possession, public nuisances, or for the maintenance of wives and children. A trial on the other hand, is
always of an offence.

(2) An inquiry in respect of an offence never ends in conviction or acquittal; at the most. It may
result in discharge or commitment of the case to sessions. A trial must invariably end in acquittal or
conviction of the accused.

First Information Report:-

An information given under sub-section (1) of section 154 CrPC is commonly known as first information
report though this term is not used in the Criminal Procedure Code (in short CrPC). It is the earliest and
the first information of a cognizable offence recorded by an officer-in-charge of a police station. It sets
the criminal law in motion and marks the commencement of the investigation which ends up with the
formation of opinion under section 169 or 170 CrPC, as the case may be, and forwarding of a police
report under section 173 CrPC. It is quite possible and it happens not infrequently that more information
than one are given to a police officer-in-charge of a police station in respect of the same incident
involving one or more than one cognizable offences. In such a case he need not enter every one of them
in the station house diary and this is implied in section 154 CrPC. Apart from a vague information by a
phone call, the information first entered in the station house diary, kept for this purpose, by a police
officer-in-charge of a police station is the first information report- FIR postulated by section 154 CrPC. All
other information made orally or in writing after the commencement of the investigation into the
cognizable offence disclosed from the facts mentioned in the first information report and entered in the
station house diary by the police officer
or such other cognizable offences as may come to his notice during the investigation, will be statements
falling under section 162 CrPC. No such information/statement can properly be treated as an FIR and
entered in the station house diary again, as it would in effect be a second FIR and the same cannot be in
conformity with the scheme of CrPC.

Take a case where an FIR mentions cognizable offence under section 307 or 326 IPC and the
investigating agency learn during the investigation or receive fresh information that the victim died, no
fresh FIR under section 302 IPC need be registered which will be irregular; in such a case alteration of
the provision of law in the first FIR is the proper course to adopt.

Let us consider a different situation in which H having killed W, his wife, informs the police that she is
killed by an unknown person or knowing that W is killed by his mother or sister, H owns up the
responsibility and during investigation the truth is detected, it does not require filing of fresh FIR against
H – the real offender who can be arraigned in the report under section 173(2) or 173(8) of CrPC, as the
case may be.

Purpose and Object :

The purpose of registration of FIR is manifold that is to say

(1) to reduce the substance of information disclosing commission of a cognizable offence, if given orally,
into writing.

(2) If given in writing to have it signed by the complainant.

(3) To maintain record of receipt of information as regards commission of cognizable offences.

(4) To initiate investigation on receipt of information as regards commission of cognizable offence.

(5) To inform Magistrate forthwith of the factum of the information received.

The principal object of the FIR from the point of view of the informant is to set the criminal law in
motion and from the point of view of the investigating authorities is to obtain information about the
alleged criminal activity so as to be able to take suitable steps to trace and bring to book the guilty.

Evidentiary value of FIR :

FIR is not a piece of substantive evidence. It can be used only for limited purposes, like corroborating
under section 157 of the Evidence Act or contradicting (cross-examination under section 145 of
Evidence Act) the maker thereof, or to show that the implication of the accused was not an after-
thought. It can also be used under section 8 and section 11 of the Evidence Act. Obviously, the FIR
cannot be used for the purposes of corroborating or contradicting or discrediting any witness other than
the one lodging the FIR. It cannot be used for corroborating the statement of a third party. If the FIR is of
a confessional nature it cannot be proved against the accused-informant, because according to section
25 of the Evidence Act, no confession made to a police officer can be proved as against a person accused
of any offence. But it might become relevant under section 8 of the Evidence Act.

What you will do when police officer refuse to register FIR?

The police cannot refuse to register the case on the ground that it is either not reliable or credible (Smt.
Gurmito vs. State of Punjab And Ors 1996 CriLJ 1254 P&H). Further, refusal to record FIR on the ground
that the place of crime does not fall within the territorial jurisdiction of the police station, amount to
dereliction of duty. Information about cognizable offence would have to be recorded and forwarded to
the police station having jurisdiction (State of Andhra Pradesh vs. Punati Ramulu And Others, AIR 1993
SC 2644).

When a police officer-in-charge of a police station or any other police officer, acting under the directions
of the officer-in-charge of police station refuses to register information, any person aggrieved by such
refusal may send in writing and by post, the substance of such information disclosing a cognizable
offence, to the Superintendent of Police under section 154(3) or to the Magistrate concerned under
section 156(3) of the CrPC. It is the duty of the officer-in-charge of the police station to register an FIR
when investigation under section 156(3) of CrPC is directed by the Magistrate, even when the
Magistrate explicitly does not say so (Mohd. Yoysuf vs. Afaq Jahan, (2006), SCC 627).

Case Law Whether a police officer is bound to register a First Information Report (FIR) upon receiving
any information relating to commission of a cognizable offence under Section 154 of the Code of
Criminal Procedure, 1973 or the police officer has the power to conduct a 'preliminary inquiry' in order
to test the veracity of such information before registering the same?

The Supreme Court of India, in Lalita Kumari vs. Govt. of UP on 12 November, 2013 held that 'the police
must compulsorily register the FIR on receiving a complaint if the information discloses a cognizable
offence, and no preliminary inquiry is permissible in such a situation'.

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

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. A preliminary inquiry should be made time bound, and in any case it should not exceed seven
days.

Evidentiary value of Statement recorded in examination:-

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.

Provided that statement made under this sub-section may also be recorded by audio-video electronic
means.

Provided further that the statement of a woman against whom an offence under section 354, section
354A, section 354B, section 354C, section 354D, section 376, section 376A, section 376B, section 376C,
section376D, section 376E or section 509 of The Indian Penal Code is alleged to have been committed or
attempted, shall be recorded, by a woman police officer or any woman officer.

‘Civilized people are generally insensitive when a crime is committed even in their presence. They
withdraw both from the victim and the vigilante. They keep themselves away from the Court unless it is
inevitable.’ (Ref: Appabhai Vs. State of Gujrat AIR 1988 SC 696). This observation was made by the
Hon’ble Apex Court when prosecution could not produce independent witnesses in that case. In the
process of investigation, under Section 161 of Cr.P.C, any Police officer making an investigation is
accredited and empowered to examine orally any person supposed to be acquainted with the facts and
circumstances of the case and to records statement of witnesses. These statements are predominantly
called as section 161 Cr.P.C statements. This task is to gather evidence against accused. After filing
charge sheet, these statements will also be perused by the Court to take cognizance of an offence. Such
a statement can only be utilized for contradicting the witness in the manner provided by Section 145 of
the Evidence Act.

What is a contradiction ?

In case of a witness testifies before the court that a certain fact is existed without stating same before
police; it is a case of conflict between the testimony before the court and statement made before the
police. This is a contradiction. Therefore statement before the police can be used to contradict his
testimony before the court. In Appabhai .Vs. State of Gujrat AIR 1988 S.C. 694 [1988 Cri.L.J. 848], The
Hon’ble Apex Court has observed as under: “The Court while appreciating the evidence must not attach
undue importance to minor discrepancies. The discrepancies which do not shake the basic version of the
prosecution case may be discarded.

What is an Omission?

An omission is either skip or slip, it means ‘exclusion’ or ‘leaving out’. If a certain fact is testified by a
witness in his Examination-in-Chief’, such fact, which is testified in Court, had been omitted to state
before police, it is called an ‘Omission’. Now, it is to be tested by the Court whether it is a material
omission or not. If it is a material omission, it amounts material contradiction. The Hon’ble Apex Court
opines that relevant and material omissions amount to vital contradictions, which can be established by
cross- examination and confronting the witness with his previous statement. (Ref; Tahsildar Singh
..Vrs..State of U.P., 1959 SCR Supl. (2) 875; AIR 1959 1012 (1026)). However, as was held in
Ponnuswamy Chetty v. Emperor (A.I.R. 1957 All. 239), ‘ a bare omission cannot be a contradiction’.

Non production of Independent Witnesses

It is settled law of criminal jurisprudence that conviction can be based on the testimony of official
witnesses and it is not necessary that in each and every case, public persons must be joined in
investigation. In the case of “Appabhai Vs. State of Gujrat” AIR 1988 SC 696, it has been held as under,
“It is no doubt true that the prosecution has not been able to produce any independent witness to the
murder that took place at the bus stand. There must have been several of such witnesses. But the
prosecution case cannot be thrown out or doubted on that ground alone. Civilized people are generally
insensitive when a crime is committed even in their presence. They withdraw both from the victim and
the vigilante. They keep themselves away from the Court unless it is inevitable. They think that crime
like civil dispute is between two individuals or parties and they should not involve themselves. This kind
of apathy of the general public is indeed unfortunate, but it is there everywhere whether in village life,
towns or cities. One cannot ignore this handicap with which the investigating agency has to discharge its
duties. The Court, therefore, instead of doubting the prosecution case for want of independent witness
must consider the spectrum or the prosecution version and then search for the nugget of truth with due
regard to probability, if any, suggested by the accused.”

How to know whether it is a contradiction or an omission or not?

” Statement ” in its dictionary meaning is the act of stating or reciting. Prima facie a statement cannot
take in an omission. A statement cannot include that which is not stated. But very often to make a
statement sensible or self-consistent, it becomes necessary to imply words which are not actually in the
statement. Though something is not expressly stated, it is necessarily implied from what is directly or
expressly stated. To illustrate: ‘ A’ made a statement previously that he saw ‘ B ‘ stabbing ‘ C ‘ to death;
but before the Court he deposed that he saw ‘B’ and ‘D’ stabbing ‘ C’ to death: the Court can imply the
word “only ” after ‘ B ‘ in the statement before the police. Sometimes a positive statement may have a
negative aspect and a negative one a positive aspect. Take an extreme example : if a witness states that
a man is dark, it also means that he is not fair. Though the statement made describes positively the
colour of a skin, it is implicit in that statement itself that it is not of any other colour. (See Tahsildar
Singh’s case (supra)).
The statement of injured which was recorded as a dying declaration which, consequent upon his
survival, is to be treated as a statement:-

In Sunil Kumar and others Vs. State of M.P. ( AIR 1997 SC 940), in this case the Supreme Court, while
dealing with the statement of injured witness, which was then recorded as a dying declaration by the
Magistrate, observed that the statement of injured which was recorded as a dying declaration which,
consequent upon his survival, is to be treated as a statement under Section 164 of the Criminal
Procedure and can be used for “corroboration or contradiction”, unlike the statement under Section
161, which can be used only for “contradiction”.

If signature of a person obtained on his statement recorded under section 161 of Cr.P.C, whether such
statement should be ignored?

Basically, signature of witness on section 161 of Cr.P.C statement is not necessary. However, it is not the
law that whenever the signature of the person is obtained in his statement recorded in the course of
investigation that statement should be ignored. The law on the point informs me that in such situation
the Court must be cautious in appreciating the evidence that the witness who gave the signed
statement may give in Court (See Tilkeshwar Vs. Bihar State (AIR 1956 SC 238), State of U.P VS. M.K
Anthoni (AIR 1985 SC 48), (1985) 1 SCC 505.and State of Rajasthan Vs. Teja Ram and Ors. (AIR 1999 SC
1776). It has been held that obtaining the signature of the witness in the statement recorded under
Sec.161 of the Code does not render it inadmissible under Sec.161 of the Code but, it may affect the
weight to be attached to the evidence of such witness. Notwithstanding that the statement is signed, it
continues to be a statement recorded under Sec.161of the Code, going by the said decisions. (See also
M. Sundaramoorthy vs State Of Kerala, (2011), Hon’ble Kerala High Court, Crl.MC.No. 464 of 2011).

Improvements in the evidence of prosecution witnesses:-

The Court disbelieves the evidence of prosecution witness, if there are improvements in the deposition
of such witness made over his statement recorded under section 161 of Cr.P.C. In the cases of Ashok
Vishnu Davare Vs. State of Maharasthra, (2004) 9 SCC 431, Radha Kumar v. State of Bihar (now
Jharkhand) [(2005) 10 SCC 216] and Sunil Kumar Sambhudaval Gupta (Dr.) and Others Vs. State of
Maharashtra, (2010) 13 SCC 657, in which the Hon’ble Supreme Court has not believed the evidence of
prosecution witnesses on account of improvements in the deposition of the witnesses made over their
statements recorded under Section 161, Cr.P.C. (See also Baldev Singh vs State Of Punjab, , criminal
appeal No. 1303 of 2005, [2013], Baldev Singh vs. State of Punjab (1990 (4) SCC 692 = AIR 1991 SC 31)).
However, in Arjun and others ..Vs.. State of Rajsthan, AIR 1994 SC 2507, The Hon’ble Court has held that
– A little bit of discrepancies or improvement do not necessarily demolish the testimony. Trivial
discrepancy, as is well known, should be ignored. Under circumstantial variety the usual character of
human testimony is substantially true. Similarly, innocuous omission is inconsequential.

Even honest and truthful witnesses may differ in some details unrelated to the main incident:-

In State of U.P. Vs. M.K. Anthony AIR 1985 SC 48, the Hon’ble Apex Court laid down certain guidelines in
this regard, which require to be followed by the courts in such cases. The Court observed as under :-
technical approach by taking sentences torn out of context here or there from the evidence, attaching
importance to some technical error committed by the investigating officer not going to the root of the
matter would not ordinarily permit rejection of the evidence as a whole. If the court before whom the
witness gives evidence had the opportunity to form the opinion about the general tenor of evidence
given by the witness, the appellate court which had not this benefit will have to attach due weight to the
appreciation of evidence by the trial court and unless there are reasons weighty and formidable it would
not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of
trivial details. Even honest and truthful witnesses may differ in some details unrelated to the main
incident because power of observation, retention and reproduction differ with individuals. Cross
examination is an unequal duel between a rustic and refined lawyer.”

Confrontation of Statement:-

Dandu Lakshmi Reddi vs. State of A.P. (AIR 1999 SC 3255), it was observed that Section 162 of the Code
of Criminal Procedure (for short the Code) interdicts the use of any statement recorded under Section
161 of the Code except for the limited purpose of contradicting the witness examined in the trial to
whom such statement is attributed. Of course, this Court has said in Raghunandan Vs. State of U.P., (AIR
1974 SC 463) that power of the court to put questions to the witness as envisaged in Section 165 of the
Evidence Act would be untrammeled by the interdict contained in Section 162 of the Code. The
following observations in the aforesaid decision, in recognition of the aforesaid power of the court,
would be useful in this context: We are inclined to accept the argument of the appellant that the
language of Section 162 Criminal Procedure Code, though wide, is not explicit or specific enough to
extend the prohibition to the use of the wide and special powers of the Court to question a witness,
expressly and explicitly given by Section 165 of the Indian Evidence Act in order to secure the ends of
justice. Therefore, we hold that Section 162 Criminal Procedure Code does not impair the special powers
of the Court under Sec. 165 Indian Evidence Act. Ultimately, in the said ruling Dandu Lakshmi Reddi
(supra), it was held that ‘ It must now be remembered that the said procedure can be followed only
when a witness is in the box. Barring the above two modes, a statement recorded under Section 161 of
the Code can only remain fastened up at all stages of the trial in respect of that offence. In other words,
if the court has not put any question to the witness with reference to his statement recorded under
Section 161 of the Code, it is impermissible for the court to use that statement later even for drawing
any adverse impression regarding the evidence of that witness. What is interdicted by the Parliament in
direct terms cannot be obviated in any indirect manner.’

A statement under Section 161 Cr. P. C is not a substantive piece of evidence:– As has been held In
Rajendra singh vs. State of U.P – (2007) 7 SCC 378, “a statement under Section 161 Cr. P. C is not a
substantive piece of evidence. In view of the provision to Section 162 (1) CrPC, the said statement can
be used only for the limited purpose of contradicting the maker thereof in the manner laid down in the
said proviso. Therefore, the High Court committed a manifest error of law in relying upon wholly
inadmissible evidence in recording a finding that Respondent 2 could not have been present at the
scene of commission of the crime.”

Cognizance by court:-

Criminal law has always been most effective branch of the law which has helped in dealing with most
brutal of the crimes and has been there to protect the society from falling in the state of anarchy. It
consists of two branches known as substantive law and procedural law. While substantive law defines
the various kinds of offences and the punishment to be given to the offenders, the procedural law is
intended to provide a mechanism for the enforcement of the substantive criminal law. In the absence of
such a procedural law, the substantive law will be rendered worthless as nobody would be able to chart
out the way of prosecuting the offenders and they will be let off. So it can be concluded that both the
laws complement each other.

In the language of the Hon’ble Apex Court employed in its earliest decision (Ref: R.R.Chari v. State of U.P
[1], “taking cognizance does not involve any formal action or indeed action of any kind but occurs as
soon as a Magistrate as such applies his mind to the suspected commission of offence”.

In India, the procedure to be followed for criminal proceedings is determined by the Code of Criminal
Procedure, 1973. It has a full section dedicated to the cognizance of offences by the Magistrates and has
also dealt with the restrictions placed on his power of cognizance regarding certain offences. These
sections explain in detail the persons who are authorized to make a complaint with regard to any
offence against marriage and a Magistrate can take cognizance of the offence only if those certified
persons are the complainants. He is not empowered to take suo moto cognizance of these offences
unless there is a grave and sudden need to take action.In this project, researcher will be discussing
about various the power of Magistrate to take cognizance of various offences and then he will be
discussing about the restrictions placed on him under S. 198 & 198A of the code. Then he will be dealing
with to the viability of these restrictions and will be analyzing if these restrictions have been useful and
have served their purpose or have they been a deterrent for the police and the victims on their way to
achieve justice and prosecuting the perpetrators of various marriage related offences.
Scope of Cognizance of Offences by Magistrate:-

Any Magistrate of the first class and any magistrate of the second class may take cognizance of any
offence. Section 190- 199 of the code describe the methods by which, and the limitations subject to
which, various criminal courts are entitled to take cognizance of offences. Section 190(1) provides that,
subject to the provisions of S. 195-199, any magistrate of the first class and any magistrate of the second
class especially empowered in this behalf, may take cognizance of any offences-

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 an offence has been committed.

S. 190(2) – The Chief Judicial Magistrate may specially empower any magistrate of the second class as
mentioned to take cognizance of such offences as are within his competence to inquire into or try. The
term complaint has been defined in S. 2(d) as meaning: ‘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.’ It also explain that A report
made by a police officer in a case which disclose, after investigation, the commission of a non cognizable
offence shall be deemed to be a complaint; and the police officer by whom such report is made shall be
deemed to be the complaint. In the case of P. Kunhumuhammed v. State of Kerala it was said: the report
of a police officer following an investigation contrary to S. 155(2)[3] could be treated as complaint under
S. 2(d) and S. 190(1)(a) if at the commencement of the investigation the police officer is led to believe
that the case involved the commission of a cognizable offence or if there is a doubt about it and
investigation establishes only commission of a non- cognizable offence. If at the commencement of the
investigation it is apparent that the case involved only commission of a non-cognizable offence, the
report followed by the investigation cannot be treated as a complaint under S. 2(d) or 190(1)(a) of the
Code. The expression ‘police report’ has been defined by S. 2(r) as meaning “a report by a police officer
to a magistrate under S. 173(2)” i.e., the report forwarded by the police after the completion of
investigation.

Ajit Kumar Palit v. State of W.B.: What is taking cognizance has not been defined in the Code. The word
‘cognizance’ has no esoteric or mystic significance in Criminal Law or procedure. It merely means
‘become aware of’ and when used with reference to a court or judge. ‘to take notice judicially’.

If cognizance is to be taken on a police report under S. 190(1)(b) the report must be one as defined in S.
2(r). That is the report must be one forwarded by a police officer to a magistrate under S. 173(2) and not
any other report like preliminary report or an incomplete challan. And it is for the magistrate to decide
whether the police report is complete. His power cannot be controlled by the investigating agency. On
receiving police report the magistrate may take cognizance of the offence under S. 190(1) (b) and
straightaway issue process. This he may do irrespective of the view expressed by the police in their
report whether an offence has been made out or not. The magistrate has not to proceed mechanically in
agreeing with the opinion formed by the police, but has to apply his mind and persue the papers placed
before him. He has to apply his mind to all the details embodied in the police report and to other
documents and papers submitted along with the report. It may be noted that the magistrate takes
cognizance of the offences and not the offender. The magistrate is not bound by the conclusion drawn
by the police and it is open to him to take cognizance of an offence under S. 199(1)(b) on the basis of the
police report even though the police might have recommended in their report that there were was no
sufficient ground for proceeding further or that it was not a fit case where cognizance should be taken
by the magistrate. It has been ruled that the magistrate can take cognizance of an offence if he is
satisfied about the material.

According to S. 190(1)(c) the magistrate can take cognizance of any offence upon the information
received from any person other than a police officer or upon his knowledge. The object is to enable
magistrate to see that justice is vindicated notwithstanding that the persons individually aggrieved are
willing or unable to prosecute. Hence the proper use of the power conferred by this provision is to
proceed under it when the magistrate has reason to believe the commission of a crime but is unable to
proceed ordinary way owing to absence of any complaint or police report about it. Therefore the word
‘knowledge’ as used in the clause (c) should be interpreted rather liberally so as to subserve the real
object of the provision. It has been opined that if a magistrate takes action under S. 190(1)(c) without
having jurisdiction then such trial would be vitiated.

S. 190 provide that under the condition specified in the section certain magistrate ‘may’ take cognizance
of offences. There are varying opinions of the Courts on this point. Considering the observation of the
Supreme Court in this connection it may be fairly concluded that ‘a magistrate has certain discretion but
it must be judicial in nature, it is limited in scope’. And taking cognizance does not depend upon the
presence of the accused in the court. In fact he does not have any role at this stage. There is no question
of giving him a hearing when final report of the police is considered. Nor does refusal to take cognizance
of an offence leads to discharge of the accused. It may be noted that a magistrate can take cognizance
of any offence only within the time-limits prescribed by law. Even after the period of limitation such
offences can be taken cognizance of by the court if the delay is condoned prior to taking cognizance. The
power to take cognizance of an offence may not be confused with the power to inquire into or try a
case.

Cognizance taken by a Magistrate not empowered:

If any magistrate not empowered to take cognizance of an offence under S. 190(1)(a) and 190(1)(b),
does erroneously in good faith take cognizance of an offence, his proceeding shall not be set aside
merely on the ground of his not being empowered.

Purshottam Jethanand v. State of Kutch [9]: If a magistrate takes cognizance of an offence and proceeds
with a trial though he is not empowered in that behalf and convicts the accused, the accused cannot
avail himself of the defect and cannot demand that his conviction be set aside merely on the ground of
such irregularity, unless there is something on the record to show that the magistrate had assumed the
power, not erroneously and in good faith, but purposely having knowledge that he did not have any
such power. On the other hand if a magistrate who is not empowered to take cognizance of an offence
takes cognizance upon information received or upon his own knowledge under S. 190(1)(c) his
proceeding shall be void and of no effect. In such a case it is immaterial whether he was acting
erroneously in good faith or otherwise.

Transfer of Cases after taking Cognizance :

This includes Transfer on application of the accused under S.191, Power of the Chief Judicial Magistrate
to transfer a case under S.192 (1) and Magistrate empowered to transfer a case under S. 192(2) of Code
of Criminal Procedure.

1. Transfer on application of the accused- when a magistrate takes cognizance of an offence under
clause (c) of subsection (1) of S. 190, the accused shall, before any evidence is taken, be informed that
he is entitled to have the case inquired into or tried by another magistrate, and if the accused or any of
the accused, if there be more than one, objects to further proceedings before the magistrate taking
cognizance, the case shall be transferred to such other magistrate as may be specified by the Chief
Judicial Magistrate in this behalf.

2. Power of the Chief Judicial Magistrate to transfer a case- S. 192(1) provides that any chief judicial
magistrate may after taking cognizance of offence, make over the case for inquiry or trial to any
competent magistrate subordinate to him. The section enables the chief judicial magistrate to distribute
the work for administrative convenience. This section has conferred special power on the CJM as
normally the magistrate taking cognizance of the offence has himself to proceed further as enjoined by
the Code. But an exception has been made in the case of CJM, may be because he has some
administrative functions also to perform. The transfer can be ordered only after taking cognizance by
the transferring magistrate. The object of this section is that senior magistrate may find it convenient to
when a magistrate transfers a case under S.192, it is not an administrative order. It is judicial order in as
much as there should be application of mind by the magistrate before he passes the order look at most
of the cases in the first instance but after taking cognizance send them for disposal to their
subordinates.

3. Magistrate empowered to transfer a case- According to S. 192(2) “Any Magistrate of the first class
empowered in this behalf by the Chief Judicial Magistrate may, after taking cognizance of an offence,
make over the case for inquiry or trial to such other competent Magistrate as the Chief Judicial
Magistrate may, by general or special order, specify, and thereupon such Magistrate may hold the
inquiry or trial.” This subsection enables the CJM to clothe a first class magistrate with powers like his
own under S. 192(1). This again is useful in order to relieve the CJM of unnecessary burden.

Cognizance of Offences by Court of Session:

No court of session shall take cognizance of any offence as a court of original jurisdiction unless the case
has been committed to it by a magistrate under S. 193 of the Code. When an offence is exclusively
triable by a court of session according to S.26 read with the First Schedule the Magistrate taking
cognizance of such offence is required to commit the case for trial to the Court of Session after
completing certain preliminary formality. Sometimes the posts of CJM and ADJ are held by one
individual. In such a case the CJM was required to take cognizance and try economic offences. It was
ruled that S. 193 did not apply to that case. For proper distribution of the work in the court of session
and for administrative convenience, it has been provided that an Additional Session Judge or Assistant
Session Judge shall try such cases as the Sessions Judge of the division may, by general or special order,
make over to him for trial or as the High Court may, by special order, direct him to try under S.194 of the
Code.

Limitation on the Power to take Cognizance:

Sections 195-199 are exceptions to the general rule that any person having knowledge of the
commission of an offence, may set the law in motion by a complaint, even though he is not personally
interested or affected by the offence. The general rule is that any person having knowledge of the
commission of an offence may set the law in motion by a complaint even though he is not personally
interested in, or affected by the offence. To this general rule, Sections 195 to 199 of Cr. P.C. provide
exceptions, for they forbid cognizance being taken of the offences referred to therein except where
there is a complaint by the Court or the public servant concerned. The provisions of these sections are
mandatory and a Court has no jurisdiction to take cognizance of any of the offences mentioned therein
unless there is a complaint in writing as required by the section concerned. There is absolute bar against
the Court taking cognizance of the case under Section 182 of IPC except in the manner provided in
Section 195 of Cr.P.C. Where the complaint is not in conformity with the provisions of this section, the
Court has no power even to examine the complainant on oath because such examination could be made
only where the Court has taken cognizance of the case. The absence of complaint as required by the
section is fatal to the prosecution and it is an illegality which vitiates the trial and conviction.

The Supreme Court, in Bashir-ul-Haq v. State, held that Section 195 of Cr.P.C. requires that without a
written complaint of the public servant concerned no prosecution for an offence under Section 182, IPC
can be launched nor any cognizance of the case taken by the Court.

Since Section 195 and the succeeding four sections i.e., Sections 196, 197, 198 & 199 impose restrictions
on the power of Magistrate to take cognizance of offence under Section 190, therefore, at the stage of
taking cognizance of an offence, the Magistrate should make sure whether his power of taking
cognizance of the offence has or has not been taken away by any of the clauses of Sections 195-199 of
the Code. Any person may set the criminal law in motion by filing a complaint even if he is not
personally affected by the offence committed. However, certain restrictions or limitations have been
imposed on the wider powers of the magistrate’s power to take cognizance under S. 190 of the code
and these restrictions have been placed under S. 195-199 of CrPC. Sub-section 1(a) of Section 195
provides that no Court shall take cognizance of any offence punishable under Sections 172 to 188, IPC or
of abetment or attempt or criminal conspiracy to commit such offence. Sections 172-188, IPC relate to
offence of contempt of lawful authority of public servants, for example absconding to avoid service of
summons, preventing service of summons, not producing a document when so required by a public
servant, knowingly furnishing false information, refusing to take oath etc.

The provision of Section 195(1)(a) being mandatory, any private prosecution in respect of the said
offences is totally barred. Only the concerned public servants can make a complaint and initiate
proceedings in respect of these offences. The power to make the complaint can be exercised only by the
public servant who is for the time being holding the office or is a successor-in-office of the public servant
whose order is disobeyed or lawful authority disregarded and thus an offence under Sections 172 to
188, IPC has been committed. The bar or limitation imposed by sub-section 1(a) of Section 195 equally
extends to both cognizable as well as non-cognizable offences. It may be noted that all the offences
covered by Sections 172 to 188 of IPC except the one under Section 188, are non-cognizable offences. It
may be noted that Section 195 being mandatory taking cognizance of any offence referred to therein
without a proper complaint by the concerned public servant would be an illegality which cannot be
cured by Section 465 of Cr.P.C. Clause (b) of Section 195(1) relates to prosecution for offences against
public justice. No Court shall take cognizance of any such offence or of attempt or abetment or of any
criminal conspiracy to commit any such offence, when such offence is alleged to have been committed
in, or relation to, any proceeding in any Court, except on a complaint in writing of that Court or of some
other Court to which that Court is subordinate.

The Supreme Court, in Santosh Singh v. Izhar Hussain, observed that every incorrect or false statement
does not make it incumbent upon the Court to order prosecution. The Court should exercise judicial
discretion taking into consideration all the relevant facts and circumstances. It should order prosecution
in the larger interest of justice and not gratify the feelings of personal revenge or vindictiveness or serve
the ends of a private party.

The Supreme Court in Sachidanand Singh v. State of Bihar, has clarified that a prosecution for the
offence of forgery would be possible under Section 195 (1) (b) (ii) only where the forgery was committed
while the document was in custody of Court, i.e., custodia legis, but mere production of the document
would not attract the bar of this section and in that case prosecution may be launched by any person.

Section 195 (4) deals with the subordination of Courts. It is different from the subordination of Courts
generally for the purpose of Cr.P.C. which is dealt with in Sections 15 and 23 of the Code. Under this
section, the Court to which appeal ordinarily lies from the appealable decrees or sentences of the Court,
is the Court to which such Court is subordinate and in case of Civil Court from whose decrees no appeal
lies, it is subordinate to the principal Court having ordinarily original Civil jurisdiction, within whose local
jurisdiction such Civil Court is situate. It has been held that the Court of single Judge of the High Court is
subordinate to the Division Bench of the High Court which hears appeals from such Court in certain
cases.

The two provisos to sub-section (4) deal with (1) subordination of Court whose appeal to more than one
Court lies; and (2) subordination when there is dual jurisdiction i.e. where appeals from a Court may in
certain cases go to a Civil Court and in other cases to revenue Court. In such cases the subordination
must be decided according to the nature of the case in connection with which the offence is alleged to
have been committed.

These restrictions have been placed on sound policy considerations and have been considered
important for faster disposal of cases. S. 198 lays down an exception to the general rule that a complaint
can be filed by anybody even if not connected to the victim and modifies this by saying that only
aggrieved person or person specified under the section can file a complaint relating to offences relating
to marriage. The object of this section is to prevent a Magistrate of his own motion inquiring into cases
of marriage, unless the husband or other authorized person complains so, but once a case has been
placed before him, a Magistrate is free to proceed against any person implicated. It must be understood
that this section neither confer any power of cognizance on the court nor a right to complain on the
aggrieved person.

Bail:-

Bail : The bail under CrPC is divided according to the types of offence alleged against the accused.

The basic rules for grant or denial of bail may simply be summarized as:

1. There are only two kinds of offences under the criminal law, bailable offence and non-bailable
offence.

2. In case of bailable offences, as per section 436 CrPC (criminal procedure code 1973) bail has to be
granted to the accused as it is a matter of right for the accused to demand and be granted bail.

3. In case of non-bailable offences, as per section 437 CrPC and Section 439 CrPC, the grant or refusal of
the bail is a matter of discretion of the court which means bail can be granted by the court. Only
condition is that it cannot be demanded as a right by the accused.
4. The section 437 CrPC ( Code of Criminal Procedure 1973) lays out certain basic criteria for the court
while exercising its judicial discretion for grant or refusal of the bail in case of non-bailable offences,
some of the criteria are the nature of offence, past criminal record, the probability of guilt, etc. and
carves out exceptions for minors , women etc.

5. Section 438 CrPC also lays down the concept of Anticipatory Bail where the accused may seek bail if
they apprehend arrest, so as to prevent even the otherwise brief incarceration. It must be noted that
the grant or refusal of anticipatory bail is also a matter of discretion for the court.

The Hon'ble Supreme Court of India has mentioned several other criteria as factors to be taken into
consideration when granting bail in non-bailable offences, these factors includes but not limited to
probability of recommission of the offence, possibility of frightening witnesses, probability of evidences
being tampered, the seniority of the accused and his consequent circles of influence in affecting the
investigation if released.

Landmark cases on the factors to be taken into consideration while hearing bail application are State
through CBI v. Amarmani Tripathi AIR 2005 SC 3490, Gurcharan Singh v. State of Delhi, AIR 1978 SC

179. there are catena of judgement which specifically states that "bail is a rule and jail is the exception".
That means apart from the above noted factors ‘bail not jail’ should be the thumb rule, implying that as
far as possible the Courts must try and grant bail and only in exceptional circumstances can bail be
refused.