Investigation and role of Magistrates in general

Criminal Practice 

Receipts of F.I.R.: – Magistrates and Judges receiving F.I.Rs., shall initial each page and put the date stamp and time of receipt. The name or number of the messenger shall also be noted. If the F.I.R., is received by post, the envelope shall also be initialled and preserved.

The same rule applies to Inquest Reports and other documents received from the Police or other Prosecuting agencies.

Magistrate to insist on production of the accused and copies of Documents: – No order under Section 167 of the Code for remand of an accused should be made unless the accused is produced before the Magistrate and he has been heard. Magistrates shall also insist on the production of copies of the entries in the Case Diary peruse and initial those documents before passing orders and also indicate in the order, that the documents are perused.

Remand to police custody: – A Magistrate shall not grant remand to police custody unless he is satisfied (Subjective) that there is good ground for doing so and shall not accept a general statement(without materiel particulars) made by the investigating or other Police Officer to the effect that the accused may be able to give further information (Objective investigation + further investigation based on it). In all cases, where the Magistrate authorises the detention of the accused in the custody of the Police, he shall record his reasons(should be different from police or mere copy of it or judicial reasoning) for so doing.

Order of remand by a Magistrate to be forwarded to Sessions Judge: – Whenever a Magistrate remands an accused person to the custody of police under Section 167 of the Code, a copy of the order of remand with the reasons recorded therefor, shall be forwarded within 24 hours to the Sessions Judge.

Computing period of remand: – In computing the period of fifteen days mentioned in sub-section (2) of Section 167, or the proviso to Section 309 of the Code, both the days on which the remand order was made and the day on which the accused is ordered to be produced before the Court shall be included. While computing the period of detention as prescribed in the proviso to sub-section (2) of Section 167 of the Code or any period of detention prescribed by any other Law, the date of actual production of the accused before the Magistrate or the Judge, as the case may be, shall be excluded.

 Remand under Section 390 of the Code: – When an accused person is brought before a Subordinate Court under Section 390 of the Code, the Court shall explain fully to him his right to the assistance of an Advocate at State cost and the procedure of hearing of appeals by the High Court. If the accused is remanded to custody, the Court shall forthwith report the action taken to the High Court and if the Warrant issued by the High Court is a Bailable Warrant, also state its reasons for remand and it shall usually forward a copy of the said Report to the Collector who will communicate with the Public Prosecutor.

Bail during investigation: – When an accused is released on bail during investigation he shall be bound over to appear in Court after the charge-sheet is filed and summons served on him. It is not necessary to bind him to appear on any earlier date or dates.

Requisitions for confessions etc.: – (1) All requisitions for recording of confession of the accused or statements of witnesses or for holding identification parades shall be made to such Magistrate as is nominated by the Sessions Judge for particular police station.
(2) On receipt of such requisition, the Magistrate shall immediately fix a date for the purpose and issue summons to the witnesses.
(3) Statement of witnesses and confession of accused shall be recorded in open Court and during Court hours except for reasons to be recorded in writing. No Police Officer should be allowed to be present in the Court Hall or in visible distance from the witnesses of the accused, while the statement or confession is being recorded.

Confessions: – (1) No confession shall be recorded unless:

(a) the Magistrate has explained to the accused that he is under no obligation at all to answer any question and that he is free to speak or refrain from speaking as he pleases; and

(b) the Magistrate has warned the accused person that it is not intended to make him an approver and that anything said by him will be taken down and thereafter be used against him.

(2) Before recording a statement, the Magistrate shall question the accused in order to ascertain the exact circumstances in which his confession is made and the extent to which the Police have had relations with the accused before the confession is made.

The Magistrate may usefully put the following questions to the accused :-

(a) When did the police first question you?

(b) How often were you questioned by the Police?

(c) Were you detained anywhere by the Police before you were taken Formally into custody, and if so, in what circumstances?

(d) Were you urged by the Police to make a confession?

(e) Have the Statements you are going to make been induced by any ill-treatment? And if so, by whom?

(f) Do you understand that the statement which you are about to make may be used against you at your trial?

These questions and any others which may suggest themselves and the answers to them shall be recorded by the Magistrate before he records the accused’s statement and shall be appended to the Memorandum prescribed by Section 164(3) of the Code of Criminal Procedure. The Magistrate shall add to the Memorandum a statement in his own hand of the grounds on which he believes that the confession is voluntary and shall note the precautions which he took to remove the accused from the influence of the police and the time given to the accused for reflection.

(3) If the Magistrate has any doubt whether the accused is going to speak voluntarily, he may, if he thinks fit, remand him to a sub-jail, before recording the statement; and ordinarily the accused shall be withdrawn from the custody of the Police for 24 hours before his statement is recorded. When it is not possible or expedient to allow so long a time as 24 hours, the Magistrate shall allow the accused atleast a few hours for reflection.

(4) The statement of the accused shall not be recorded, nor shall the warning prescribed in paragraph (1) of this Rule be given nor shall the question prescribed in paragraph (2) of this Rule be asked in the presence of a co-accused or of the police officers who have arrested him or produced him before the Magistrate or who have investigated the case.

Dying declaration: – (1) While recording a Dying Declaration, the Magistrate shall keep in view the fact that the object of such declaration is to get from the declarant the cause of death or the circumstances of the transaction which resulted in death.

(2) Before taking down the declaration, the Magistrate shall disclose his identity and also ask the declarant whether he is mentally capable of making a declaration. He should also put simple questions to elicit answer from the declarant with a view to knowing his state of mind and should record the questions and answers, signs and gestures together with his own conclusion in the matter. He should also obtain whenever possible a certificate from the Medical Officer as to the mental condition of the declarant.

(3) The declaration should be taken down in the words of the declarant as far as possible. The Magistrate should try to obtain from the declarant particulars necessary for identification of the accused. Every question put to the declarant and every answer or sign or gesture made by him in reply shall be recorded.

(4) After the statement is recorded, it shall be read over to the declarant and his signature obtained thereon, if possible, and then the Magistrate shall sign the statement.

Identification parades: – In conducting identification parades of suspects, the Magistrate shall observe the following Rules.

(i) (a) The Police should sent a requisition for holding identification parade by the Magistrate as nominated by the Sessions Judge. On such requisition, the Magistrate shall conduct the identification parade as expeditiously as possible.

(b) Where bail application is pending for the release of the accused and on being informed so by the Police Officer, the Magistrate shall as far as possible fix a date earlier to the date of arguments on the bail application and hold the identification parade.]

(ii) (a) As far as possible, non-suspects selected for the parade shall be of the same age, height, general appearance and position in life as that of the accused. Where a suspect wears any conspicuous garment, the Magistrate conducting the parade shall if possible, either arrange for similar wear to other or induce the suspected person to remove such garment.

(b) The accused shall be allowed to select his own position and should be expressly asked if he has any objection to the persons present with him or the arrangements made. It is desirable to change the order. in which the suspects have been placed at the parade during the interval between the departure of one witness and the arrival of another.

(iii)(a) The witnesses who have been summoned for the parade shall be kept out of the view of the parade and shall be prevented from seeing the prisoner before he is paraded with others.

(b) Before a witness is called upon to identify the suspect, he should be asked whether he admits prior acquaintance with any suspect whom he proposes to identify. He shall also be asked to state the marks of identification by which he can identify the suspects.

(c) Each witness shall be fetched by a peon separately. The witness shall be introduced one by one and on leaving shall not be allowed to communicate with witness still waiting to see the persons paraded.

(iv) Every circumstances connected with the identification including the act if any attributed to the person who is identified shall be carefully recorded by the officer conducting it, whether the accused or any other person is identified or not. Particularly any objection by any suspect to any point in the proceeding shall be recorded.

Identification of property: – (1) Identification parades of properties shall be held in the Court of the Magistrate where the properties are lodged.

(2) Each item of property shall be put up separately for the parade. It shall be mixed up with four or five similar objects.

(3) Before calling upon the witnesses to identify the property, he shall be asked to state the identification marks of his property. Witnesses shall be called in one after the other and on leaving shall not be allowed to communicate with the witness not yet called in.