Commencement of investigation by a police officer is subject to two conditions, firstly, the police officer should have reason to suspect the commission of a cognizable offence as required by Section 157(1) and secondly, the police officer should subjectively satisfy himself as to whether there is sufficient ground for entering on an investigation even before he starts an investigation into the facts and circumstances of the case as contemplated under Clause (b) of the proviso to Section 157(1) of the Code.
The next point for consideration is whether Section 157 of the Code gives the police officers carte blanche drawing no legal bounds in the province of investigation and whether the powers of the police officers in the field of investigation are wholly immune from judicial review ability.
The above questions have been examined by the Courts on several occasions and they have by judicial pronouncements carved out an area, limited though it be, within which the legality of the exercise of powers by police officers in the realm of investigation and yet be subjected to judicial reviewability and scrutiny and the immunity enjoyed by the police officers is only a conditional immunity. The Privy Council in Nazir Ahmad’s case (albeit) though has ruled that it is of the utmost importance that the judiciary should not interfere with the police in matters which are within their province has provided an exception to that above observation to the effect that if no cognizable offence or no case of any kind is disclosed, the police would have no authority to undertake the investigation.
This Court on several occasions has expressed its concern for personal liberty of a citizen and also has given warning about the serious consequences that would flow when there is non-observance of procedure by the police while exercising their unfettered authority. Gajendragadkar, J speaking for the Bench in R.P. Kapur Vs. The State of Punjab, states as follows:
It is of utmost importance that investigation into criminal offence must always be free from any objectionable features or infirmities which may legitimately lead to the grievance of the accused that the work of investigation is carried on unfairly and with any ulterior motive.
Krishna Iyer, J. in Nandini Satpathy Vs. P.L. Dani and Another, has expressed his view thus:
…a police officer who is not too precise, too sensitive and too constitutionally conscientious is apt to trample under foot the guaranteed right of testimonials tacitness.
Bhargava, J. speaking for the Bench in S.N. Sharma v. Bipen Kumar Tiwari and Ors. (albeit) has stated thus:
It appears to us that, though the CrPC gives to the police unfettered power to investigate all cases where they suspect that a cognizable offence has been committed, in appropriate cases an aggrieved person can always seek a remedy by invoking the power of the High Court under Article 226 of the Constitution under which, if the High Court could be convinced that the power of investigation has been exercised by a police officer mala fide, the High Court can always issue a writ of mandamus restraining the police officer from misusing his legal powers. The fact that the Code does not contain any other provision giving power to a Magistrate to stop investigation by the police cannot be a ground for holding that such a power must be read in Section 159 of the Code.
Mathew, J. in his majority judgment in Prabhu Dayal Deorah Vs. The District Magistrate, Kamrup and Others, while emphasising the preservation of personal liberty has expressed his view thus:
We say, and we think it is necessary to repeat, that the gravity of the evil to the community resulting from antisocial activities can never furnish an adequate reason for invading the personal liberty of a citizen, except in accordance with the procedure established by the Constitution and the laws. The history of personal liberty is largely the history of insistence on observance of procedure. Observance of procedure has been the bastion against wanton assaults on personal liberty over the years. Under our Constitution, the only guarantee of personal liberty for a person is that he shall not be deprived of it except in accordance with the procedure established by law.
Chandrachud, C.J. in Swapan Kumar Guha’s case while examining the power of a police officer in the field of investigation of a cognizable offence has affirmed the view expressed by Mathew, J and observed as follows:
There is no such thing like unfettered discretion in the realm of powers defined by statutes and indeed, unlimited discretion in that sphere can become a ruthless destroyer of personal freedom. The power to investigate into cognizable offences must, therefore, be exercised strictly on the condition on which it is granted by the Code.