CIVIL

When can a police officer investigate and when can he decline to investigate

CODE OF CRIMINAL PROCEDURE

  1. sub-section (1) of section 154 provides that every information, relating to the commission of a cognizable offence, if given orally to an Officer-in-Charge of a police station, shall be reduced to writing by him or under his direction and be read over to the informant and every such information, whether given in writing or reduced to writing, shall be signed by the person giving it and sub-section (2) of section 154 requires that a copy of such information shall be given, forthwith, free of cost, to the informant. sub-section (1) of section 156 vests, in the Officer-in-Charge of every police station, the power to investigate any cognizable case without the order of a magistrate and sub-section (3) of that section authorizes the magistrate, empowered under section 190, to order an ‘investigation’ as mentioned in sub-section (1) of that section.
  2. Before proceeding further, we may also hasten to add that we would, a little later, deal with the occasion(s), when a Magistrate cannot, in exercise of his powers under section 156 (3), direct an ‘investigation’ by the police.
  3.  Leaving, aside, momentarily, the question as to when a Magistrate cannot direct, in exercise of his powers under section 156 (3), on ‘investigation’, it is apposite to point out that sub-section (1) of section 156 makes it clear that a police officer’s power to investigate, without the order of a Magistrate, in a cognizable case, is co-extensive with the territorial jurisdiction of the court, which has the jurisdiction over the local area within the limits of such police station. Thus, sub-section (1) of section 156 shows that a police officer cannot investigate even a cognizable case beyond the territory of the court, which has the jurisdiction over the local area within which the police station falls. In other words, an 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 local limits of such a police station, would have power to inquire into or try under the provisions of Chapter XII. The fall out of these provisions is that the Officer-in-Charge of a police station, which comes within the territorial jurisdiction of a Magistrate, ‘X’, cannot investigate a cognizable case, which falls within the territorial jurisdiction of another Magistrate, say ‘Y’.
  4. Coming to the information, given to an Officer-in-Charge of a police station, about the commission of a non-cognizable offence, it is to be noted that it is the duty of such an officer to enter, or cause to be entered, the substance of the information in a book to be kept by such an officer, in such form as the State Government may prescribe in this behalf, and refer the informant to the Magistrate, but he cannot, in the light of section 155(2), investigate into such a case without the order of a Magistrate, who has the power to try such a case or commit the case for trial. When, however, a police officer receives an order from a Magistrate to investigate a non- cognizable case, his powers, according to section 155(3), to carry out ‘investigation’ will be the same as in the case of a cognizable case.
  5.  Coupled with what is indicated above, one should also bear in mind that sub-section (1) of section 157 lays down that if, from the information received or otherwise, an Officer-in-Charge of a police station has reason to suspect the commission of an offence, which he is empowered, under section 156, to investigate, he shall, forthwith, send a report of the same to a Magistrate empowered to take ‘cognizance’ of such an offence upon a police report and shall proceed to the spot to investigate the facts and circumstances of the case and, if necessary, to take measures for the discovery and arrest of the offender. But there are two provisos to this sub-section. Proviso (b) states that 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. However, in such a case, sub-section (2) of section 157 requires that the officer shall, forthwith, notify to the informant the fact that he will not investigate the case or cause it to be investigated.
  6.  Thus, in a given case, in the light of the proviso to sub-section (1) of section 157,the police officer has the option of not investigating a case if an information, as to the commission of any offence, is given against any person by name provided that the case is not of a serious nature or if it appears to the Officer-in-Charge of the police station that there is no sufficient ground for entering on an ‘investigation’ into the case. Section 158 contemplates sending to the Magistrate a report, as envisaged in section 157, through such superior police officer as the State Government may, by general or special order, appoint in that behalf, and such superior police officer has the power to give such instruction as he thinks fit and such instruction shall also be transmitted to the Magistrate along with the report.
  7. Notwithstanding, however, the fact that section 157 empowers the police not to investigate a case, the Magistrate, on receiving the report, as contemplated in section 157 read with section 158, has the power to direct ‘investigation’ or, if he thinks fit, at once, proceed or depute any Magistrate, subordinate to him, to hold preliminary inquiry or, otherwise, to dispose of the case in the manner as provided in the Code.
  8.  What the Officer-in-Charge of a police station is required to do, on completion of the ‘investigation’, is set out in section 173. sub-section (2)(i) of section 173 provides that as soon as an ‘investigation’ is completed, the Officer-in-Charge of the police station shall forward to the Magistrate, empowered to take ‘cognizable’ of the offence on a police report, a report, in the form prescribed by the State Government, setting out various particulars including whether, in the opinion of the officer, any offence appears to have been committed and, if so, by whom.
  9. What is, now, of utmost importance to note is that sub-section (2)(ii) of section 173states that the officer shall also communicate, in such manner as may be prescribed by the State Government, to the person, if any, by whom the information, relating to the commission of the offence was first given, as to what action had been taken by him. sub-section (1) of section 190, then, proceeds to enact that any Magistrate of the First Class and any Magistrate of the Second Class, specially empowered in this behalf under sub-section (2) of section 190, may take ‘cognizance’ of any offence: (a) upon receiving a ‘complaint’ of facts, which constitute such offence, or (b) upon a ‘police report’ of such facts, or (c) upon ‘information’ received from any person, other than a police officer, or upon his ‘own knowledge’, that such offence has been committed. We are concerned, in this case, only with clause (b), because the question, which we are required to examine and determine, before we proceed further, is: whether a Magistrate is bound to issue notice to the first informant or to the injured or to any relative of the deceased or de facto complainant, when the Magistrate is considering the police report submitted under section 173(2).
  10. Is a Magistrate bound to issue notice to the first informant or to the injured or to any relative of the deceased or de facto complainant. When the Magistrate is considering the police report submitted under section 173(2).
  11. While considering the above aspect of the case, it needs to be recalled that the Supreme Court in, Bhagwant Singh (supra), has pointed out that when an informant lodges first information report with the Officer-in-Charge of a police station, he does not fade away with the lodging of the first information report; rather, he is very much concerned with what action is initiated by the Officer-in-Charge of the police station on the basis of the first information report lodged by him. No sooner he lodges the first information report, a copy thereof has to be supplied to him, free of cost, under sub-section (2) of section 154. If, notwithstanding the first information report, the Officer-in-Charge of a police station decides not to investigate the case on the ground that there is no sufficient ground for entering on an ‘investigation’, he is required, under sub-section (2) of section 157, to notify to the informant the fact that he is not going to investigate the case or cause it to be investigated. This apart, the officer-in-change of a police station is obligated, under sub-section (2)(ii) of section 173, to communicate to the informant as to what the ‘investigation’, conducted by the police, has revealed. Furthermore, the Officer-in-Charge of the police station is also required to supply to the informant a copy of the report, which he has forwarded to the Magistrate under section 173(2)(i).
  12. The question, therefore, is as to why action taken by the Officer-in-Charge of a police station, on the first information report, is required to be communicated to the informant along with the report, which is forwarded to the Magistrate under sub-section (2)(i) of section 173. The reason is obvious and the reason, as pointed out in Bhagwant Singh (supra), is that the informant, who sets the machinery of ‘investigation’ into motion by filing the first information report, must know what is the result of the ‘investigation’ initiated on the basis of the first information report, which he had lodged. The informant having taken the initiative of lodging the first information report with a view to initiating ‘investigation’ by the police for the purpose of ascertaining whether any offence has been committed and, if so, by whom, he becomes vitally interested in the result of the ‘investigation’ and, hence, the law requires that the action, taken by the Officer-in-Charge of a police station, on the first information report should be communicated to the informant. More importantly, even the report, forwarded by such an officer to the Magistrate under clause (i) of sub-section (2) of section 173, is required to be supplied, under the provisions of clause (ii) of sub-section (2) of section 173, to the informant by the officer concerned [see Bhagwant Singh (supra) at page 542 of 2 SCC].
  13. Now, when the report, forwarded, under clause (i) of sub-section (2) of section 173, by the Officer-in-Charge of a police station to the Magistrate, comes up for consideration by the Magistrate, one of two different situations may, as pointed out in Bhagwant Singh (supra), arise. The report may conclude that an offence appears to have been committed by a particular person or persons and, in such a case, the Magistrate may do one of three things: (i) he may accept the report and take ‘cognizance’ of the offence or offences, as the case may be, and issue process or (ii) he may disagree with the report and drop the proceeding or (iii) he may direct ‘further investigation’ under sub-section (3) of section 156 and require the police to submit a further report. The report, submitted under section 173(2)(i), may, on the other hand, state that, in the opinion of the police, no offence appears to have been committed and when such a report is made, the Magistrate, according to the Supreme Court, in Bhagwant Singh (supra), has, once again, the option to adopt one of three courses: (i) he may accept the report and drop the proceeding, or (ii) he may disagree with the report and, taking the view that there is sufficient ground for proceeding further, take ‘cognizance’ of the offence or offences, as the case may be, and issue process, or (iii) he may direct ‘further investigation’ to be made by the police under sub-section (3) of section 156.
  14. Where, in either of the two situations, as described above, the Magistrate decides to take ‘cognizance’ of offence(s) and to issue process(es), the informant is not, ordinarily, prejudicially affected nor can the injured or, in case of death, any relative of the deceased, may really feel aggrieved, because cognizance of the offence is taken by the Magistrate and it is decided by the Magistrate that the case shall proceed. If, however, the Magistrate decides that there is no sufficient ground for proceeding further and drops the proceeding or takes the view that though is sufficient ground for proceeding against some, but there is no sufficient ground for proceeding against others named and mentioned in the first information report, the informant, as noted in Bhagwant Singh (supra), would certainly be prejudiced, because the first information report, lodged by him, would have failed in its purpose, wholly or in part. Moreover, when the interest of the informant, in prompt and effective action being taken on the first information report lodged by him, is clearly recognized by the provisions contained in sub-section (2) of section 154sub-section (2) of section 157 and sub-section (2)(ii) of section 173,it must be presumed that the informant would equally be interested in seeing that the Magistrate takes ‘cognizance’ of the offence(s) and issues process(es) against all those, who may have been named by him in the first information report, because that would be culmination of the first information report lodged by him. The case of Rosendra Chandra Das (supra), which Mr. Bhowmik has relied upon, throws some light on this aspect of law inasmuch as it was a case, wherein the informant had named, in the FIR, as many as four persons as accused involved in the commission of offences under sections 120(b)/304(b)/436/34, ipc and when the police, upon investigation, submitted report (that is, charge sheet), under section 173(2)(i), against one of the persons named as accused in the FIR, the High Court held that the learned Sub-Divisional Judicial Magistrate ought not to have accepted such a charge sheet without giving the informant a notice to have his say as to why the report, so submitted by police, be not accepted.
  15. There can, therefore, be no doubt, as held in Bhagwant Singh (supra), that when, on a consideration of the report made by the Officer-in-Charge of a police station under sub-section (2)(i) of section 173, the Magistrate is not inclined to take ‘cognizance’ of the offence and issue process, the informant must be given an opportunity of being heard so that he can make his submissions to persuade the Magistrate to take ‘cognizance’ of the offence or the offences, as the case may be, and issue process or processes.
  16. It has been further clarified and authoritatively held, in Bhagwant Singh (supra), that in a case, where the Magistrate, to whom a report is forwarded under sub-section (2)(i) of section 173, decides not to take ‘cognizance’ of the offence and to drop the proceeding or takes the view that there is no sufficient ground for proceeding against some of the persons mentioned in the first information report, the Magistrate must give notice to the informant and provide him an opportunity to be heard at the time of consideration of the report as to why the Magistrate shall take cognizance of offence and proceed against only some of the persons, but not against all those, who may have been named as offenders in the first information report.
  17. What logically follows from the above discussion is that if there is a first information report, which does not disclose the name of the offender, even then the informant must be informed by the police of the result of the ‘investigation’ and it is the duty of the Magistrate to ensure that a copy of the report, which a police officer submits to the Magistrate, on completion of ‘investigation’, is given to the informant so that he may have his say in the matter.