CHAPTER 4 Investigation of Crime
1. Information of Crime
66. Reports submitted under Section 157 of the Code should be carefully and promptly scrutinized by the Magistrate to whom they are submitted. Scrutiny will not only permit him to decide whether action under Section 159 of the Code is desirable but will also, if he is a Sub-Divisional Magistrate, keep him in touch with the police administration and the state of crime generally in his sub-division and thus facilitate the exercise of his general responsibilities as an assistant to the District Magistrate.
67. Sections 154 and 155 of the Code require the recording of reports of crimes. These reports, usually referred to as first information reports, are of considerable value, particularly at the trial, and magistrates should bear in mind the importance of examining them. The information is the basis of the case, and whether true or false it usually represents what the informant intended to be his case at the time. In view of the tendency to improve upon original statements of fact, to strengthen the case as it proceeds and sometimes to add others to the person originally named as the offender it is of great importance to know what was said in the first instance.
2. Case diary
68. In all cognizable offences investigated the proceedings subsequent to the recording of the information and the despatch of the intimation report are recorded in a special diary called the case-diary. A police officer investigating a non-cognizable offence under the orders of a Magistrate will not ordinarily write a case-diary unless specially ordered to do so by the District Magistrate or District Superintendent of Police.
69. Under Section 172 (2) of the Code any Criminal Court may send for the police diary of a case under enquiry or trial before it and may use it for the purpose laid down in that Section. Entries in the diary are not evidence in the case but they may be of considerable value in indicating the names of persons whose evidence may be material, and the nature of questions which should be put to witnesses for the purpose of eliciting their full knowledge and for doing real justice in the case. Bearing in mind the observation in Chapter 5, Rule 118 the Courts will realize the great importance of examining those diaries. It is often of great importance to trace the steps leading to a confession or to the recovery and identification of stolen property or of the implement with which a particular offence has been committed and to be able to elucidate such matter by suitable questions to the witnesses.
70. It must be remembered that the case-diary is a privileged document and is protected by the provisions of Section 172 of the Code. When not in actual use the case-diary should be returned to the police officer in charge of the case. Handing over the complete police diary to the counsel for the defence is contrary to law and must not occur.
71. The privilege referred to in the preceding rules does not apply to statements recorded under Section 161 of the Code. Normally these do not form part of the case-diary but are separate documents attached to the case diary. If for any reason they are included in the case-diary their mere inclusion will not deprive the accused of any rights he has under Section 162 of the Code. The Courts must carefully judge whether an entry in the case-diary is or is not in fact a statement recorded under Section 161 of the Code.
72. (1) When a statement recorded under Section 161 of the Code is used in the manner indicated in Section 162 of the Code, care should be taken to see that the statement is properly proved.(2) The method of proving such a statement is for the accused to mark in the copy of the case-diary furnished to him the passage which has been specifically put to a witness in order to contradict him and then to obtain the formal evidence of the writer of the diary that the passage marked is a true extract from the statement recorded in the original case-diary, which he will have at the time with him for purposes of comparison.
73. (1) The recording of a confession under Section 164 of the Code is a matter which requires the utmost care. In many cases a confession is the mainspring of the prosecution case. The Courts are vigilant in seeing that a confession is relevant under Section 24 of the Indian Evidence Act, and consequently any defect in the procedure of recording a confession giving rise to any suspicion as to its relevancy may be fatal to a case and may lead to considerable waste of public money and the time of officers engaged in the investigation, prosecution and trial of the case. A perusal of any standard commentary on the Indian Evidence Act or the Code will indicate both the care with which the Courts scrutinize the circumstances in which a confession was recorded and the defects in procedure such scrutiny often reveals. The wording of Section 24 of the Indian Evidence Act is wide and should be carefully studied.
It is sufficient to make a confession irrelevant if it is made because of coercion on inducement proceeding from a person in authority sufficient to give grounds which appear to the accused reasonable for supposing that he would gain an advantage. The frequency with which confessions are retracted on the ground that they were not free and voluntary renders it essential that a confession be recorded in circumstances which prevent any suggestion that the accused was under the influence of any person interested in obtaining the confession.
(2) The instructions given below, if carefully followed, will normally provide material for a decision whether a confession was in fact free and voluntary. But the Magistrate may take such further precautions as he considers necessary to permit him conscientiously to sign the memorandum referred to in Section 164 of the Code.
In particular the special form prescribed for recording confessions (Schedule V, No. 189) reproduced at the end of this sub-rule should be used carefully and conscientiously and the Magistrate should not consider himself necessarily restricted to the questions printed therein.While however the Magistrate is bound to use the utmost care in the matter he should be careful not to discourage the making of a confession which the accused genuinely desires to make.
“Form of proceedings preliminary to recording a confession
(The Code of Criminal Procedure, 1898, Section 164)
Present Shri……………………………First class magistrate,…………………………… The Second Class, empowered under Section 164 accused person…………… son of……….. is produced at…… a.m./p.m. this……. day of….. 20……, by police officer…………….The following police papers, showing that the accused was arrested at………. a.m./p.m. on the……… day of……. at……… tahsil……… miles from…….., where the Court is sitting, are produced and read:-…………………………….To give the accused time to think over his confession away from all police influence, and to keep the police who arrested him or investigated the case away from this proceeding, I order:-
Second Class, empowered under Section 164.
The accused……. being further present at…… a.m./p.m. this……. day of……,20……, in the custody of….. the following preliminary questions are put to him to ascertain whether he is acting voluntarily in offering to make a confession:-
|Do you understand that I am a Magistrate and that what you say may be used against you?||A|
|Do you understand that you need say nothing unless you are freely wish to?||A|
|Do you wish to say anything?||A|
|Where did the police first question you? What day was it and what time?||A|
|Where did the police arrest you? What day was it and what time?||A|
|The Magistrate shall ascertain by further questioning whether the accused is acting voluntarily and whether the confession which he is about to make is the result of any|
|(B) Inducement, or|
|(C) Promise you?|
|from a police officer or other person in authority which would render it irrelevant under Section 24 of the Indian Evidence Act. The questions and replies thereto shall be recorded below:-||
Printed in red ink in the Form
This statement was made in my presence and hearing. The record contains a full and true account of the questions put to the accused and of the answers given by him. It was read over to him and admitted by him to be correct.
|Dated the…… 20….||
Magistrate ….. Class.
Being satisfied for the reasons stated below that the confession if recorded will not be/be irrelevant under the provisions of Section 24, Indian Evidence Act, I proceed to record it. I drop these proceedings and direct that the accused be disposed of as follow:-Reasons-
Second Class, empowered under Section 164.
Confession of Accused
(The Code of Criminal Procedure, 1898 Section 164)
Accused……………. son of…………….. age………. occupation………… residence…………….
[The record should be by questioning and answer.]
|Note – If the confession extends beyond this sheet the above certificate and the matter required by paragraph (4) of it must be recorded at the end.||
Printed in red ink in the Form
|Note – See Certificate overleaf.|
Certified that the accused began his confession recorded above at………… O, clock and ended it at…….. O, clock.Instruction to the Magistrate:-
|1.||The Magistrate shall read over the confession as recorded to the accused.|
|2.||The Magistrate shall obtain the signature of the accused at the foot of the confession.|
|3.||The Magistrate shall also put his own signature at the foot of the confession.|
|4.||The Magistrate shall refer to sub-section (3) of Section 164, Criminal Procedure Code, and if satisfied, make a memorandum in the terms stated in sub-section (3) at the foot of the confession.||
Printed in red ink in the Form
|5.||Any other facts which go to show that the confession was made voluntarily may be recorded by the Magistrate at foot of the confession.|
|6.||The Magistrate shall give below a brief description of the custody in which the accused was kept while recording the confession.|
Second Class, empowered under Section 164.
74. Under Section 164 of the Code a Magistrate of the first class and a Magistrate of the second class who is empowered by the Provincial Government in this behalf has power to record a statement or confession made to him in the course of an investigation or at any time afterwards before the commencement of the enquiry or trial. Therefore when an accused person alleged to be desirous of making a confession is produced before a Magistrate who is not a Magistrate of the first class or a Magistrate of the second class specially empowered by the Provincial Government in this behalf the Magistrate shall forward the accused to the nearest Magistrate who is competent to record such statement or confession. The escort required for the journey shall not include any of the police who have already taken part in the investigation.
75. An accused person should not be examined immediately he is produced for the recording of his confession. He should be given a reasonable time, extending when possible to a few hours, for reflection in circumstances in which he will not be influenced by the police before his statement is recorded. If during this period he is detained in jail, the superintendent of the jail should be requested to keep him apart from other persons but not in solitary confinement.
76. (1) For the proper recording of a confession it is essential under sub-section (3) of Section 164 of the Code that the accused shall be questioned with a view to ascertaining whether he is making the confession voluntarily. The Magistrate should invariably ask him when and where he was first questioned by the police, when and where he was arrested, and the length of time he has been in the custody of the police. It is not sufficient to accept the date and hour of formal arrest as entered in the police papers. The questions so put and the answers thereto must be recorded before the confession is taken down.(2) Magistrates recording confessions are forbidden to send for or examine the statement, if any, made to the police by the person making the confession.
77. If any allegation of ill-treatment is made the Magistrate shall then and there examine the body of the accused, if the accused consents to such examination, to see whether there are any marks of injuries as alleged and shall record the result of his examination. If the accused refuses to permit such examination the refusal and the reason therefor shall be recorded. If the Magistrate finds that there is reason to suspect that the allegation is well founded he shall at once record the complaint, cause the accused to be examined by a medical officer, if possible, and if he has no power to take up the necessary enquiry himself, forward him to the Magistrate having jurisdiction.
78. Before recording a confession the Magistrate shall explain to the person making it that he is not bound to make a confession, and that if he does so it will be taken down and may thereafter be used as evidence against him.
79. Before recording the confession the Magistrate must determine upon the answers to the preliminary questions and upon the result of any examination of the person of the accused, whether there is a reason to believe that the confession, if recorded, will be irrelevant on any of the grounds set forth in Section 24 of the Indian Evidence Act. If he decides that the confession will be inadmissible on any of the said grounds, he should state his reasons for such decision and should refuse to record any statement offered by the accused.
80. Confessions should ordinarily be recorded in open Court and during Court hours; provided that if the Magistrate is satisfied, for reasons to be recorded by him in writing, that the recording of a confession in open Court would be detrimental to the public interest or be liable to defeat the ends of justice, the confession may be recorded elsewhere.
81. It is not desirable that any police officer should be present when a confession is being recorded except such as may be necessary to secure the safe custody of the accused person when, in the Magistrate’s opinion, the duty cannot safely be left to other attendants. In any case none of the police officers who have been concerned in his arrest or in the investigation of the case should be allowed to be present or to be within sight or hearing of the accused.
82. The Magistrate shall endeavour to record the confession in as much details as possible in order to afford material from which its genuineness can be judged, and to test whether it is freely made or is the outcome of suggestion. Anything in the nature of a cross-examination of the accused must be avoided, but it is important that without any attempt to heckle or to entrap the accused the Magistrate should record the statement with as much detail as possible. The more detailed a confession is, the greater are the chances of correctly estimating its value. Every question and every answer shall be recorded in full.
83. When a confession is recorded it shall be read over to the accused who made it and shall be signed by him and also by the recording Magistrate. The Magistrate shall then make, at the foot of the record of the confession, the memorandum required by sub-section (3) of Section 164 of the Code. The memorandum shall, whenever practicable, be in the language in which the accused is examined. To this memorandum shall be added a statement, by the Magistrate in his own hand, of the grounds on which he believes that the confession is voluntarily made. Form No. 189 of Schedule V provides a printed certificate at the end that all these necessary formalities have been observed, and the Magistrate in signing the certificate has his attention called to all that he is bound to do to make the confession effective in law.
84. After a prisoner has made a confession before a Magistrate he should ordinarily be committed to jail and the Magistrate should note on the warrant for the information of the superintendent of the jail that the prisoner has made a confession.
85. A prisoner who has been produced for the purpose of making a confession but has declined to do so, or has made a statement which from the point of view of the prosecution is unsatisfactory, should in no circumstances be detained in police custody. He should be detained in jail custody.
86. In every case in which a record of confession made under Section 164 of the Code is received by the presiding officer enquiring into or trying the case, the confession shall be shown or read over to the accused, and the fact that this has been done shall be noted down by the presiding officer. The presiding officer shall enquire from the accused whether he made the confession before the Magistrate from whom the record of it was received and shall record the answer of the accused in full.
87. The attention of Courts enquiring into or trying a case in which the record of a confession made under Section 164 of the Code is defective is invited to the provisions of Section 533 of the Code.
4. Custody of Accused Pending Completion of Investigation
88. When an accused is brought before a Magistrate under Section 167 of the Code because the police investigation has not been completed the Magistrate should note down when the accused was first sent for by the Police and when he was produced in Court. If on making due allowance for the time spent in travelling he finds that the period twenty-four hours fixed by Section 61 of the Code has been exceeded he should report the matter to the District Magistrate through the Sub-Divisional Magistrate, and the District Magistrate should call the police to account.
89. A juvenile delinquent should not be remanded to the custody of the police or to jail unless no other action is practicable. The attention of the Courts is invited to the provisions of Section 24 of the Central Provinces Children Act, 1928 (C.P. X of 1928), and to the proviso to sub-section (1) of Section 497 of the Code. This rule covers remands under Section 344 of the Code as well as under Section 167 of the Code.
90. (1) The Magistrate should before authorizing the detention of the accused in any custody pending the completion of the police investigation, peruse the copy of the case-diary which must accompany the accused and ascertain why further detention is necessary. He should also hear any objection which the accused may have to offer against his further detention. If the Magistrate finds that further detention is unnecessary he may, if he has jurisdiction, try the case or commit it for trial; if he has no jurisdiction he may order the accused to be forwarded to a Magistrate having jurisdiction.(2) If the Magistrate considers the further detention of the accused is necessary he should ordinarily direct the accused to be detained in the jail or the Magistrate lock-up nearest to the Court which will try him in the event of the police finding a charge established against him.(3) It appears to the Magistrate that the police not only require time for their investigation, but that for special reasons they want the accused to be present with them in that investigation, he may order the detention of the accused in the custody of the police.
91. When a Magistrate passes an order, authorizing the detention of the accused in the custody of the police he should record in writing the ground on which he considers such detention necessary. The reasons put forward by the police why the accused should be returned to their custody are not always good and sufficient and require careful scrutiny. For example, detention for the purpose of enabling the accused to point out where the stolen property is concealed would be reasonable if the accused has voluntarily before the Magistrate offered to conduct the police to the spot; but it would be unreasonable if no such offer has been made and the object of the police is really to induce the accused to reveal the place of concealment. A general statement that the accused may be able to give further information should no circumstances be accepted as sufficient ground for such detention.
92. When an order for detention in the custody of the police is passed by a Magistrate other than the District or Sub-Divisional Magistrate he shall forward a copy of his order, with his reasons for making it, to the Magistrate to whom he is immediately subordinate. The Magistrate to whom the copy of the order is sent shall satisfy himself that the order has been made on good and sufficient grounds and that the period of detention allowed is not more than is reasonably sufficient for securing the object in view.
93. A prisoner may not, under Section 167 of the Code, be detained in the custody of the police for a longer period than fifteen days in the whole, i.e., the whole period of his detention by the police should not exceed twenty-four hours plus fifteen days; exclusive of the time occupied in the journey to the Magistrate’s Court after his arrest. When this period has expired an order of further remand should be passed under Section 344 of the Code after the case has been put up for trial before the Magistrate having jurisdiction.
94. An order of detention in police custody shall be written on the application for detention which shall be made in the form prescribed therefor. The Magistrate shall give the original order to the police and have a copy of it made in duplicate on the application to be filed with the magisterial record of the case. The copy shall first be sent to the Magistrate to whom the Magistrate making the order is immediately subordinate. The superior Magistrate shall after perusal return the copy to the Magistrate who is to enquire into or try the case to be filed with the record.
95. Whenever after a confession has been recorded a Magistrate is specially deputed to verify the confession locally with the aid of the accused, the accused shall remain in the charge of such Magistrate. The Magistrate shall make suitable arrangements for guarding the accused by peons, and the police shall not be allowed to take any part in guarding him.
5. Closing of the investigation and the Completed Investigation Report
96. An investigation is completed when-
(a) the police report that the charge which they have investigated is not established by the evidence, and the accused (if in custody) has been released on his executing a bond with or without sureties (Section 169 of the Code);
(b) the police report that the charge is established against the accused by the evidence collected, and send the case for trial (Section 170 of the Code); or
(c) the police report that the case is a true one, but that after doing all in their power they have been unable-
(i) to trace the offence to any particular person, or
(ii) to lay hands upon the person who is believed to be the guilty party (Section 173 of the Code).
In (b) the charge sheet, called the challan, will form the final report in the case and will go to the Magistrate having jurisdiction. In cases (a) and (c) a final report shall be submitted direct to the Magistrate who shall make such order for the discharge (or otherwise) of the accused’s bond as he thinks fit.
97. If the Magistrate having jurisdiction is at the headquarters of a district the charge sheet should in the first instance be taken to the office of the District Superintendent of Police so that immediate action may be taken to obtain copies for proving such previous convictions as may have been noted in the charge sheet or for tracing out such convictions if none have been so noted. The prosecuting inspector should inspect the charge sheet and see that it is properly drawn up and is presented in the proper Court with as little delay as possible. In no case should a charge sheet be delayed in the office either for the purpose of procuring fresh evidence or for any other object without an express order from the Court.
98. Except in extraordinary cases no alteration, correction or comment should be made on the original charge sheet. When any alteration, correction or comment is made, or when it is found necessary to substitute a fresh sheet for the original, the reason for any such alteration or change should be given to the Magistrate at the time of bringing the case before him.
99. When the trial is completed, and the result slip is filled in, the slip shall be signed by the Magistrate, or in cases committed to the Court of Session by the Sessions Judge, and despatched to the office of the District Superintendent of Police.
100. When the Magistrate or Judge considers that the property produced as stolen is not in fact all stolen, he shall enter in column 7 of the result slip of value of the part he thinks to be stolen.
101. When the final report, under Sections 169 and 173 of the Code, discloses facts which afford good prima facie grounds for believing a case to be false, or to have been instituted through mistake on the part of the complainant as to the criminal liability of the accused, the District Magistrate may order the case to be expunged from the Crime Register. Similar of the accused is sent up for trial under Section 170 and is acquitted or discharged on the ground that no offence was committed, the Court (subject in the case of a Court of a Magistrate to the orders of the District Magistrate) may direct the expunging of the offence.
102. In doubtful cases an offence should not be expunged. Mere failure to elicit confirmatory evidence will not justify the expunging of a complaint once registered. Some positive evidence inducing a reasonable certainty that the offence was not committed is needed. On the other hand a Court should not refuse to make such an order merely on the ground that there is no strictly legal evidence before it on which it can declare the charge to be false or erroneous.
103. When there is any doubt as to the cause of death, or when death is said to have been suicidal, or it appears that homicide or any other offence has been committed or when for any other reason a police officer considers it expedient to do so, he should forward the dead body to the medical officer appointed to hold post mortem examinations in the particular area in which the police station concerned is situated. For very special reasons which must always be stated, the police may send a dead body to the Civil Surgeon from any area.
104. In cases in which the remains discovered consist mainly of bones or are so scanty as to require a highly skilled opinion to decide the cause of death, the identity of the remains and other similar matters, they should always be sent to the Civil Surgeon of the district for examination.
105. When a dead body is sent to headquarters from a place where a medical officer is stationed, the police may call on him to inspect the body and to describe in writing any wound or other unusual external condition that may be present.
106. When intimation is received by the officer in charge of a police station that a death has occurred by suicide, by homicide, by an accident by the attack of an animal or in suspicious circumstances, he shall give immediate information to the nearest Magistrate empowered to hold inquests and proceed to the spot where the body of the deceased person is.
107. When any person dies while in the custody of the police, the nearest Magistrate empowered to hold inquests shall hold an enquiry into the cause of death as required by Section 176 of the Code either instead of or in addition to the investigation held by a police officer. If the Magistrate considers it expedient to make an examination of the dead body of any person who has been already interred, in order to discover the cause of death, he may cause the body to be disinterred and examined.