Information to the Police

and their powers to

investigate

 Investigationis
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

non-cognizable 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

 (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
non-bailable 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

 No Police officer shall investigate a

Non-cognizable 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 nonconformance
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
noncompliance 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
non-cognizable
- 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

 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

 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 persons 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

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

 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 pre-cognizance 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

 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 proceedingsec.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

underSection 154of 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

 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.
Section
32(1) IEA

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 reside Persons 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

 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 reexamination of such witness, but for
the purpose only of explaining any
matter referred to in his crossexamination.
-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 reexamination 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 accuseds 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.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

 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

 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 non- compliance 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
ofSection
164Cr.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

 (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
ofSection
164Cr.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
-sec.164A (2)(5)(6)

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
Wheneverthe 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

 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.

 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)