Jyotsna Roy -VS- State of West Bengal & Ors [CHC] 15/11/2019

Considering the nature of duties and in the jurisdiction exercised by the deceased and considering the death of the deceased at the age of 52 years while in service, such an event cannot be taken lightly, irrespective of whether a writ petition had been filed or not. The writ petition has only added substance to the requirement of an in-depth investigation. The Court is therefore in requirement of a verifiable independent expert opinion on the results of the investigation collected so far.

SL-3 15.11.2019
Court No.1
KB/G.S.D

Calcutta High Court
In the Circuit Bench at Jalpaiguri
WPA 201 of 2019

CAN 1 of 2019

Jyotsna Roy -VS- State of West Bengal & Ors.

Appearance: 

Mr. Arjun Chowdhury
… for the petitioner

Mr. Subir Kr. Saha
Mr. Bikramaditya Ghosh
… For the State

Mr. Samir Pal

    … For the Respondent Nos. 2 and 6

Party/Parties is/are represented in the order/orders of their name/names as printed above in the cause title.

Abundant documents are placed on behalf of both the petitioner and the Investigating Officer, i.e. the State respondents, connected to the alleged cause of death of the writ petitioner.

This Court also notices the order of the Hon’ble Single Bench dated September 11, 2019 directing, inter alia, the Investigating Agency to file a complete Report on the investigation on November 5, 2019 before the Hon’ble Bench.

Today, Mr. Chowdhury, Learned Advocate, appears for the petitioner and assails the Report of the Investigating Officer of the Siliguri (T), GRP dated September 9, 2019 as filed before Court.

However, Mr. Ghosh, Learned State Counsel, points out that the Report dated September 9, 2019 has since been superseded by filing a Final Report under the Code of Criminal Procedure dated 14th November, 2019 again by the self-same Investigating Officer, without being able to draw a conclusion with regard to the investigation. This Court has also heard Mr. Pal, Learned Counsel, appearing for the RPF.

Considering the nature of duties and in the jurisdiction exercised by the deceased and considering the death of the deceased at the age of 52 years while in service, such an event cannot be taken lightly, irrespective of whether a writ petition had been filed or not. The writ petition has only added substance to the requirement of an in-depth investigation. The Court is therefore in requirement of a verifiable independent expert opinion on the results of the investigation collected so far.

For the above reasons, the parties and, particularly the petitioner, is permitted to revert to the Court with appropriate instructions on the next date.

Let this matter appear before the next available Circuit Bench, subject to its convenience, along with the connected application.

(SUBRATA TALUKDAR  J. )

15.11.2019


Original order :

Jyotsna Roy -VS- State of West Bengal & Ors.[PDF]

Bhagwant Singh Vs Commissioner of Police and another- 25/04/1985

SUPREME COURT OF INDIA JUDGMENTS

Whether the injured person or a relative of the deceased, who is not the informant, is entitled to notice when the report comes up for consideration by the Magistrate.

SUPREME COURT OF INDIA

Bhagwant Singh Versus Commissioner of Police and another

(Before : P. N. Bhagwati, Amarendra Nath Sen And D. P. Madon, JJ.)

Contempt Petition No. 4998 of 1983 in Criminal Writ. Petition No. 6607 of 1981 , Decided on : 25-04-1985.

Criminal Procedure Code, 1973—Sections 154(1) and 157(1)

Counsel for the Parties:

Mr. Kapil Sibal, Sr. Advocate, A. C. and Ms. Madhu Singh, Advocate with him, for Petitioner

Mr. S. C. Maheswari, Mr. G. D. Gupta and Mr. R. N. Poddar, Advocates for Respondents.

Judgement

Bhagwati, J—The short question that arises for consideration in this writ petition is whether in a case where First Information Report is lodged and after completion of investigation initiated on the basis of the First Information Report, the police submits a report that no offence appears to have been committed, the Magistrate can accept the report and drop the proceeding without issuing notice to the first informant or to the injured or in case the incident has resulted in death, to the relatives of the deceased. It is not necessary to state the facts giving rise to this writ petition, because so far as this writ petition is concerned, we have already directed by our order dated 28th November, 1983 that before any final order is passed on the report of the Central Bureau of Investigation by the Chief Metropolitan Magistrate, the petitioner who is the father of the unfortunate Gurinder Kaur should be heard. Gurinder Kaur died as a result of burns received by her and allegedly she was burnt by her husband and his parents on account of failure to satisfy their demand for dowry. The circumstances in which Gurinder Kaur met with her unnatural death were investigated by the Central Bureau of Investigation and a report was filed by the Central Bureau of Investigation in the Court of the Chief Metropolitan Magistrate on 11th August, 1982 stating that in their opinion in respect of the unnatural death of Gurinder Kaur no offence appeared to have been committed. The petitioner was however not aware that such a report had been submitted by the Central Bureau of Investigation and he, therefore, brought an application for initiating proceedings for contempt against the Central Bureau of Investigation on the ground that the Central Bureau of Investigation had not completed their investigation and submitted their report within the period stipulated by the Court by its earlier order dated 6th May, 1983. It was in reply to this application for initiation of contempt proceedings that the Central Bureau of Investigation intimated that they had already filed their report in the Court of the Chief Metropolitan Magistrate on 11th August, 1982 and the report was pending consideration by the Chief Metropolitan Magistrate. When this fact was brought to our notice we immediately passed an order dated 28th November, 1983 directing that the petitioner should be heard before any final order was passed on the report. There was no objection on the part of the respondents to the making of this order, but since the question whether in cases of this kind, the first informant or any relative of the deceased or any other aggrieved person is entitled to be heard at the time of consideration of the report by the Magistrate and whether the Magistrate is bound to issue notice to any such person, is a question of general importance which is likely to arise frequently in criminal proceedings, we thought that it would be desirable to finally settle this question so as to afford guidance to the Courts of Magistrates all over the country and we accordingly proceeded to hear the arguments on both sides in regard to this question.

2. It is necessary to refer to a few provisions of the Criminal P.C., 1973 in order to arrive at a proper determination of this question. Chapter XII of the Criminal P.C., 1973 deals with information to the police and their powers to investigate. Sub-sec. (1) of S. 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 in 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 that section requires that a copy of such information shall be given forthwith, free of cost, to the informant. Section 156 subsection (1) vests in the officer-in-charge of a police station the power to investigate any cognizable case without the order of a Magistrate and sub-sec. (3) of that section authorises the Magistrate empowered under S. 190 to order an investigation as mentioned in sub-sec. (1) of that section. Section 157 subsection (1) lays down that if, from 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 S. 156 to investigate, he shall forthwith send a report of the same to a Magistrate empowered to take cognizance of such 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) enacts 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, but in such a case, sub-sec. (2) of S. 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. 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 S. 173 provides that as soon as investigation is completed, the officer in charge of a police station shall forward to the Magistrate empowered to take cognizance 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. Sub-section (2)(ii) of S. 173 states that the officer shall also communicate, in such manner as may be prescribed by the State Government, the action taken by him to the person, if any, by whom the information relating to the commission of the offence was first given. Section 190 sub-section (1) 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-sec. (2) 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 we are examining here is whether the Magistrate is bound to issue notice to the first informant or to the injured or to any relative of the deceased when he is considering the police report submitted under S. 173 sub-section (2).

3. It will be seen from the provisions to which we have referred in the preceding paragraph that when an informant lodges the 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. 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 of it has to be supplied to him, free of cost, under sub-section (2) of S. 154. If, notwithstanding the First Information Report, the officer in charge of a police station decides not to investigate the case on the view that there is no sufficient ground for entering on an investigation, he is required under sub-sec. (2) of S. 157 to notify to the informant the fact that he is not going to investigate the case or cause it to be investigated. Then again, the officer in charge of a police station is obligated under sub-sec. (2)(ii) of S. 173 to communicate the action taken by him to the informant and the report forwarded by him to the Magistrate under sub-sec. (2)(i) has therefore to be supplied by him to the informant. The question immediately arises as to why action taken by the officer in charge of a police station on the First Information Report is required to be communicated and the report forwarded to the Magistrate under sub-sec. (2)(i) of S. 173 required to be supplied to the informant. Obviously, the reason 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. The informant having taken the initiative in 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, is 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 him and the report forwarded by such officer to the Magistrate under sub-section (2)(i) of Section 173 should also be supplied to him.

4. Now, when the report forwarded by the officer-in-charge of a police station to the Magistrate under sub-section (2)(i) of S. 173 comes up for consideration by the Magistrate, one of two different situations may 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:(1) he may accept the report and take cognizance of the offence and issue process or (2) he may disagree with the report and drop the proceeding or (3) he may direct further investigation under subsection (3) of S. 156 and require the police to make a further report. The report may on the .other hand state that, in the opinion of the police, no offence appears to have been committed and where such a report has been made, the Magistrate again has an option to adopt one of three courses:(1) he may accept the report and drop the proceeding or (2) he may disagree with the report and taking the view that there is sufficient ground for proceeding further, take cognizance of the offence and issue process or (3) he may direct further investigation to be made by the police under sub-section (3) of Section 156. Where, in either of these two situations, the Magistrate decides to take cognizance of the offence and to issue process, the informant is not prejudicially affected nor is the injured or in case of death, any relative of the deceased aggrieved, because cognizane of the offence is taken by the Magistrate and it is decided by the Magistrate that the case shall proceed. But if the Magistrate decides that there is no sufficient ground for proceeding further and drops the proceeding or takes the view that though there is sufficient ground for proceeding against some, there is no sufficient ground for proceeding against others mentioned in the First Information Report, the informant would certainly be prejudiced because the First Information Report lodged by him would have failed of 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 recognised by the provisions contained in sub-sec. (2) of S. 154, sub-sec. (2) of S. 157 and sub-sec. (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 and issues process, because that would be culmination of the First Information Report lodged by him. There can, therefore, be no doubt that when, on a consideration of the report made by the officer in charge of a police station under sub-section (2)(i) of S. 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 and issue process. We are accordingly of the view that in a case where the Magistrate to whom a report is forwarded under subsec. (2)(i) of S. 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. It was urged before us on behalf of the respondents that if in such a case notice is required to be given to the informant, it might result in unnecessary delay on account of the difficulty of effecting service of the notice on the informant. But we do not think this can be regarded as a valid objection against the view we are taking, because in any case the action taken by the police on the First Information Report has to be communicated to the informant and a copy of the report has to be supplied to him under sub-section (2)(i) of S. 173 and if that be so, we do not see any reason why it should be difficult to serve notice of the consideration of the report on the informant. Moreover, in any event, the difficulty of service of notice on the informant cannot possibly provide any justification for depriving the informant of the opportunity of being heard at the time when the report is considered by the Magistrate.

5. The position may, however, be a little different when we consider the question whether the injured person or a relative of the deceased, who is not the informant, is entitled to notice when the report comes up for consideration by the Magistrate. We cannot spell out either from the provisions of the Criminal P.C., 1973 or from the principles of natural justice, any obligation on the Magistrate to issue notice to the injured person or to a relative of the deceased for providing such person an opportunity to be heard at the time of consideration of the report, unless such person is the informant who has lodged the First Information Report. But even if such person is not entitled to notice from the Magistrate, he can appear before the Magistrate and make his submissions when the report is considered by the Magistrate for the purpose of deciding what action he should take on the report. The injured person or any relative of the deceased, though not entitled to notice from the Magistrate, has locus to appear before the Magistrate at the time of consideration of the report, if he otherwise comes to know that the report is going to be considered by the Magistrate and if he wants to make his submissions in regard to the report, the Magistrate is bound to hear him. We may also observe that even though Magistrate is not bound to give notice of the hearing fixed for consideration of the report to the injured person or to any relative of the deceased, he may, in the exercise of his discretion, if he so thinks fit, give such notice to the injured person or to any particular relative or relatives of the deceased, but not giving of such notice will not have any invalidating effect on the order which may be made by the Magistrate on a consideration of the report.

6. This is our view in regard to the question which has arisen for consideration before us. Since the question is one of general importance, we would direct that copies of this judgment shall be sent to the High Courts in all the States so that the High Courts may in their turn circulate this judgment amongst the Magistrates within their respective jurisdictions.


AIR 1985 SC 1285 : (1985) 3 SCR 942 : (1985) 2 SCC 537 : (1985) 1 SCALE 1194 : (1985) CriLJ SC 1179

Calcutta High Court ordered for verifiable independent expert opinion on Police Investigation Report-15/11/2019

Facts: A person who was employed as an officer in the Sashatra Seema Bal ( under Ministry of Home Affairs) and was heading the intelligence wing of the department was murdered on 17.04.2018 while on duty. He was posted in Panitanki (Indo- Nepal Border) and mainly entrusted with the job of collecting intelligence reports relating to cross border trafficking, smuggling of narcotics etc. Being in the Intelligence department, he was in possession of several vital information relating to smugglers operating in that area and probably due to that reason he was murdered by the miscreants. His corpse was found near a railway track in the Panitanki area. An U/D case by GRPS was initiated. After 30 days, an FIR was registered u/s 304 stating that the death was due to a railway accident. Police never entertained the grievance of the deceased’s family members and were hell-bent from the beginning to show the death as accidental and not homicidal. The Post mortem report clearly stated that the death was due to sudden hit with sharp weapons and the death was certainly not accidental. Further, the injuries were ante-mortem in nature.

Family members prayed for the addition of Section 302 before the ACJM, Siliguri and upon order of the ACJM, 302 was added. There was no progress in the investigation till then.

A writ petition was filed praying for transfer of investigation to the CBI or any other independent agency of similar stature. On different occasions before the high court, the IO prayed for time to file a progress report. On the last occasion, Justice Moushumi Bhattacharya directed to file a completion report of investigation in 4 weeks. Yesterday,the matter was moved before justice Subrata Talukder. Meanwhile, the IO submitted a final report stating the incident as accidental and also filed that report before the High Court yesterday. Justice Talukder passed an order that an independent 3rd party opinion relating to the investigation done by police so far, is required to ascertain whether the investigation was tainted or not and directed me to give name of any independent agency to which the records can be transferred to test the authenticity/quality of investigation done by police so far. Only after the expert opinion is obtained, the court will decide whether a further investigation by any other investigating authority is required or not.

Such kind of direction seems quite unusual.


The text of the Order as below :

Considering the nature of duties and in the jurisdiction exercised by the deceased and considering the death of the deceased at the age of 52 years while in service, such an event cannot be taken lightly, irrespective of whether a writ petition had been filed or not. The writ petition has only added substance to the requirement of an in-depth investigation. The Court is therefore in requirement of a verifiable independent expert opinion on the results of the investigation collected so far.

Jyotsna Roy -VS- State of West Bengal & Ors.

 

SL-3 15.11.2019
Court No.1
KB/G.S.D

Calcutta High Court
In the Circuit Bench at Jalpaiguri
WPA 201 of 2019

CAN 1 of 2019

Jyotsna Roy -VS- State of West Bengal & Ors.

Appearance: 

Mr. Arjun Chowdhury
… for the petitioner

Mr. Subir Kr. Saha
Mr. Bikramaditya Ghosh
… For the State

Mr. Samir Pal

    … For the Respondent Nos. 2 and 6

Party/Parties is/are represented in the order/orders of their name/names as printed above in the cause title.

Abundant documents are placed on behalf of both the petitioner and the Investigating Officer, i.e. the State respondents, connected to the alleged cause of death of the writ petitioner.

This Court also notices the order of the Hon’ble Single Bench dated September 11, 2019 directing, inter alia, the Investigating Agency to file a complete Report on the investigation on November 5, 2019 before the Hon’ble Bench.

Today, Mr. Chowdhury, Learned Advocate, appears for the petitioner and assails the Report of the Investigating Officer of the Siliguri (T), GRP dated September 9, 2019 as filed before Court.

However, Mr. Ghosh, Learned State Counsel, points out that the Report dated September 9, 2019 has since been superseded by filing a Final Report under the Code of Criminal Procedure dated 14th November, 2019 again by the self-same Investigating Officer, without being able to draw a conclusion with regard to the investigation. This Court has also heard Mr. Pal, Learned Counsel, appearing for the RPF.

Considering the nature of duties and in the jurisdiction exercised by the deceased and considering the death of the deceased at the age of 52 years while in service, such an event cannot be taken lightly, irrespective of whether a writ petition had been filed or not. The writ petition has only added substance to the requirement of an in-depth investigation. The Court is therefore in requirement of a verifiable independent expert opinion on the results of the investigation collected so far.

For the above reasons, the parties and, particularly the petitioner, is permitted to revert to the Court with appropriate instructions on the next date.

Let this matter appear before the next available Circuit Bench, subject to its convenience, along with the connected application.

(SUBRATA TALUKDAR  J. )

15.11.2019


Original order :

Jyotsna Roy -VS- State of West Bengal & Ors.[PDF]

Criminal Investigation as per Bengal Police Regulation 1943

1. Recording of information in General Diary: Officer-in-charge of a police station can record any information in G.D U/S 44 Police Act 1861.

44. Police officers to keep diary – It shall be the duty of every officer in charge of a police station to keep a general diary in such form shall, from time to time, be prescribed by the State Government and to record therein all complaints and charges preferred, the names of all persons arrested, the names of the complainants, the offences charged against them, the weapons or property that shall have been taken from their possession or otherwise, and the names of the witnesses who shall have been examined.
The Magistrate of the district shall be at liberty to call for and inspect such diary.

2. Non-cognizable information: O/C of a Police station has no power to investigate a non–
Cognizable information, he can record it in G.D U/S 155 CrPC or 44 Police Act and ask the
informant to seek for an order from a competent court for investigation/enquiry of such
information (245 PRB).
3. FIR (Cognizable Information): should be recorded by O/C himself (243 PRB) and investigation should be carried out by himself or any other officer as per his direction (244 PRB).

4. Report to magistrate about cognizable offence at once: 245 PRB.

245. Cognizable offence referred by Magistrate. – (a) When a Magistrate directs the police to enquire into the complaint of a cognizable offence, of which no previous information has been laid before the police, the written information sent by the Magistrate to the police shall be treated as the first information.

(b) In every case referred to the police for enquiry a date shall be fixed by the Magistrate by which the report or an explanation of the cause of delay shall reach him.

5. Despatch of FIR to other Superior Officer: 246PRB.
6. List of property stolen/misappropriated to be obtained from the informant: 247 PRB.
7. Information of heinous crime occurring outside jurisdiction: 248 PRB.

8. Searches and seizure list u/s 100, 102,165,166 of CrPC: 280 PRB.

280. Searches. [§ 12, Act V, 1861]. – (a) The law in regard to searches is contained in Chapter VII and sections 102 and 103, 165 and 166, Code of Criminal Procedure. These sections must be scrupulously followed. The officer conducting a search should take precautions to prevent the possibility, on the one hand, of any article being introduced into the house without the knowledge of the inmates, and on the other, of any articles being taken out of the house while the search is in progress. Search should be made in the presence of the owner or some one on his behalf. The presence of search witnesses [vide clause (h) below] must not be looked upon merely as a formality, but they must actually be eye-witnesses to the whole search and must be able to see clearly where each article is found. They should then sign the search list (B.P. Form No. 44). If any search witness be illiterate, it should be read over to him and his left thumb impression should be taken on it. Where the witnesses do not know English, it should be written in the vernacular. The suspected person whose property is seized, should, if present at the search, also be asked to sign the list. Should he refuse, a note will be made to this effect and it should be certified to by the witnesses. The suspected person, or in his absence, the person in charge oi the house or place searched, should be given a copy of the search list. He will be given an opportunity of comparing it with the original and be asked to sign an acknowledgement for the copy of the original list. Should he refuse, a note to that effect should be made and should be certified to by witnesses. In cases where no property is seized the search list should be crossed vertically and signed by the search witnesses and the owner of the house.

(b) Only searches for any specific article, which is known, or reasonably suspected to be in any particular place or in the possession of any particular person, can be made without warrants. General searches without warrants are illegal and the only search which can be made without warrant is under section 165, Code of Criminal Procedure. There must be some specific thing necessary for purposes of investigation and there must be reasonable ground for believing that it is in a particular place and that delay in search is likely to interfere with the recovery of property. The police officer must record in his diary (i) the ground of his belief and (ii) the thing he is looking for, and must as soon as practicable send a copy of such record to the nearest Magistrate empowered to take cognizance of the offence [section 165 (ii), Code of Criminal Procedure]. No place should be searched without a warrant merely because the occupier is a registered bad character or absconding offender. Such a search should be made only under the circumstances given in section 165, Code of Criminal Procedure, and when the police officer has reason to believe that the thing searched for will be found in the place to be searched. Provided that reasonable suspicion exists and a definite article (or articles) is (or are) searched for, the police are entitled to search the house of an absconding offender, whether he has been proclaimed or not. Police officers should note in their diaries the reasons for search, though they are not obliged to give the name of the person upon whose information they act. The name, father’s name and residence, etc., of any person producing keys of any locked receptacles or claiming ownership of articles seized should always be noted in the case diary.

(c) Under section 165(2) of the Code of Criminal Procedure, the officer-in-charge of the police-station or the investigating officer, who must not be below the rank of Sub-Inspector, must, if practicable, perform the actual search in person. Only when he is incapacitated from so doing can he depute another officer to make the search and when he does so depute another officer he must first of all record his reasons for doing so and then give written orders to the officer deputed specifying what the search is for and where it is to be made. A verbal order given on the spot will not fulfil the requirements of the section.

(d) Before the commencement of the search the person of every police officer who is to conduct it, as also that of every witness and informer shall be examined before the witnesses and the owner of the house or his representative.

(e) The law does not require a search under the Code of Criminal Procedure, to be made by daylight, except those under section 14 of the Opium Act, 1878, but there are advantages in searching by daylight, and a searching officer should consider whether a house-search should proceed by night or whether daylight should be awaited. Matters must be so arranged as to cause as little inconvenience as possible to the inmates, and especially the women.

(f) When suspected property is found in a house all the property in the house is not to be seized. Property seized must be either alleged or suspected to have been stolen or found under circumstances which create a suspicion of the commission of an offence, and nothing can justify the seizure of the whole of a man’s property because he is suspected of having stolen some particular article or articles.

(g) The number of witnesses required to attend a house-search depends on the circumstances of each particular case, and no hard-and-fast rule can be laid down. The witnesses selected should be residents of the same or adjoining villages. If necessary, such residents may be served with an order in writing to attend and witness the search.

(h) Care should be taken that the witnesses are, so far as possible, unconnected with any of the parties concerned or with the police, so that they may be regarded as quite independent. Whenever possible, the presence of the Panchayat or headman of the village shall be obtained to witness a search. Under no circumstances should a spy or habitual drunkard or any one of doubtful character be called as a search witness. Reasons for rejecting any person as a witness to the search should be noted in the case diary.

(i) Whenever it becomes necessary for a search to be made for arms illegally possessed, a warrant must invariably be obtained under section 25 of the Indian Arms Act, 1878 (XI of 1878) from a Magistrate. Such searches can only be conducted by, or in the presence of, an officer of, or above, the rank of Sub-Inspector. No police officer is authorized of his own motion to make a search for arms illegally possessed (vide section 30 of the Act).

(j) In order to satisfy the Court as to the identity of articles alleged to have been discovered at a house-search and to prevent irregularities, the officer conducting a search under sections 103 and 165, Code of Criminal Procedure, shall prepare a list in triplicate in B. P. Form No. 44 of the property of which he has taken possession and shall forward it to the Court officer by the first available dak after the search together with a report regarding the search. One copy of this list will be sent to the Court officer together with copies of the records prescribed under section 165(5) of the Code. One copy of the list only shall be given to the householder or his representative and the third copy will remain with the investigating officer. On receipt in the Court office, this list shall be stamped with the date of receipt and the record put up before the Magistrate. Investigating officers are required to note carefully the instructions contained in the headings of the form and are enjoined to conduct searches under such conditions that there may be no room for suspicion on the part of the witnesses that articles have been surreptitiously introduced by them or their constables or chaukidars, or anyone whatever under their influence, with a view to their being included in the list of property actually discovered in the place under search. Witnesses should be allowed free access to the place being searched and be given every facility to see and to hear everything that transpires.

All articles or weapons found at a house-search or on the person of a prisoner shall be carefully labelled and if a charge-sheet is submitted in the case, shall be sent to the Court officer. The labels shall be signed by the officer conducting the search.

(k) If the warrant is issued in form No. 8 of Schedule V of the Code of Criminal Procedure, or if the search is made without a warrant or on a warrant issued under section 98 of the Code, the police are not authorized to take away anything except the specified thing for which the search was directed or made, but in all cases in which the Magistrate proceeds under paragraphs 3 and 4, sub-section (1) of section 96 of the Code of Criminal Procedure, and directs in his warrant that there should be a general search followed by a more careful inspection at the police-station or some other convenient place, papers and documents and other articles need not be examined and initialled piece by piece in situ. They should be collected and packed in bundles. These bundles or receptacles should be closed or locked, as the case may be, and must in all cases be sealed or marked by the search witnesses and entered in the search lists. For instance, the contents of a desk drawer should be collected, packed together and marked and initialled by the search witnesses. For example, it might be marked AA/1 Any other bundles, packages, papers or documents similarly packed up together might be sealed or marked AA/2, AA/3, etc., etc. All these packages may be packed for easy carriage in a large receptacle which should, in this case, be marked A and should contain all the AA bundles or packages. Subsequently these bulky boxes or packages should be very formally opened by the search witnesses who sealed or marked and signed them during the search, and their contents should be gone over piece by piece, examined, kept or rejected, but in every instance initialled and dated by the search witnesses and the police officer in question. Each of these pieces must bear the initial letters and the serial of its original bundle plus its own serial number in that bundle. Should any difficulty be experienced in getting a search witness to examine the documents at the police station, it will be open to any police officer to call in the assistance of the Court to compel the attendance of such search witnesses at the Court to open the bundles, boxes, etc. Should he refuse to sign the contents of the bundle, the police officer should, if possible, invoke the help of an Honorary Magistrate or such other officers as may be available.

9. Medical examination of a wounded person: 312 PRB.
10. Dying declaration: 266 PRB.

11. Sketch Map and Plan: 273 PRB.

273. Map or plan to accompany Chargesheet in certain cases. [§ 12, Act V, 1861]. – (a) A map or plan shall always accompany the chargesheet in cases of murder, dacoity, serious riot, mail robbery, highway robbery, extensive burglary or theft where Rs. 600/- or more are stolen. Ordinarily, maps will not be required in cases other than those mentioned above; but the investigating officer may, at his discretion, prepare and send up a map in any other case. The map shall be prepared at as early a stage of the investigation as possible.

(b) The map shall, if possible, be drawn to scale, but this is not essential. If not drawn to scale, the fact shall be noted clearly on the map.

(c) The draughtsman or investigating officer who prepares the map shall bear in mind that it is essential for a correct appreciation of the situation by the Court and jury that a clear distinction should be made between (i) facts actually seen by the draughtsman himself, and (ii) facts deposed to only by witnesses. Statements made by the draughtsman as to the first group are always relevant, his statements as to the second are prima facie inadmissible and cannot be used as primary evidence to go to the jury.

It is necessary to maintain a suitable distinction in the map between these two sets of facts. This distinction shall be effected as follows:-

(i) The objects actually seen by the person preparing the map including such permanent features as buildings, trees, roads, paths and tangible points connected with the case, such as blood-stains, footprints, cloth and corpse, etc., actually seen by him shall be indicated by letters of the alphabet, A, B, C, D etc., explanations of these letters being given preferably in the margin of the map, but if this cannot be conveniently done, the explanations shall be furnished on a separate sheet of paper attached to the map.

(ii) Particulars derived from witnesses, e.g., the place where witness X is said to have stood, where the accused is said to have been standing when seen by X, where the blow was struck, etc., shall be indicated on the map by the numbers 1, 2, 3, 4, etc. The explanations of these numbers, however, shall on no account be given on the face of the map or on the separate sheet of paper referred to above, but on another sheet of paper distinct-from either the map or the list of explanations of the actual facts indicated by letters.

(d) The number of the case and the name of the accused shall be given at the top of the map, and the signature of the person who prepared it at the foot. Use should always be made of cadastral and other maps, where they are available and are of sufficiently large scale.

(e) The draughtsman or the investigating officer who prepared the map shall be produced as a witness at the trial.


12. Post mortem examination and report: 305, 306PRB.
13. Presence of police officer at the P.M. Examination: 307 PRB.
14. Photographing of unidentified dead body: 314 PRB.
15. Fingerprint of unidentified dead body: 313 PRB.

16. Arrest without warrant: 316 PRB.

316. Arrest without warrant. [§ 12, Act V, 1861]. – (a) The powers of arrest without warrant possessed by police officers are laid down in sections 54, 55, 57(2), 128, 151 and 401(3), Code of Criminal Procedure. A telegram may be considered to furnish credible information of a person having been concerned in a cognizable offence. “Cognizable offence” is defined in section 4(f), Code of Criminal Procedure.

(b) An officer-in-charge of a police-station has no legal power to summon before him any person accused of an offence. The only manner in which he can enforce the attendance of such person before him is by arrest, and without an arrest the attendance or detention of an accused person cannot, under any circumstances, be compelled. It is, therefore, to be understood that, whenever an accused person is sent for and made to attend before an investigating officer, he is to be considered as having been arrested, and to be entered in the return accordingly. The manner in which arrest is to be made is described in sections 46 to 48 and section 53, Code of Criminal Procedure. No person who has been arrested may be discharged except on bail, or on his own recognizance, of under the special orders of a Magistrate. (See section 63 of the Code.

(c) “Police custody” includes custody on the authority of the police; every person who is kept in attendance to answer a charge in such a way that he is practically deprived of his freedom shall be considered as in custody. A police officer who, without himself arresting a person, directs some of the neighbours to take charge of him, shall be responsible in the same way as if he had made the arrest himself. Requiring a person’s attendance by letter and deputing a constable to accompany him with orders to prevent him from speaking to anyone amounts to an arrest.

(d) The attention of all officers is drawn to section 25 of the Criminal Tribes Act, 1924 (VI of 1924), which provides for the arrest without warrant of a registered member of a criminal tribe, whose movements have been restricted or who has escaped from a Settlement or School, if found in a place beyond the area prescribed for his residence, and for the removal of such member for his prosecution under section 22(11) of the said Act, to the district in which he should reside or to the Settlement or School from which he escaped.

17. Unnecessary arrest to be avoided and bail to be allowed: 317 PRB.
18. Register of person arrested: 323 A.
19. Medical examination of the arrested person: 328 PRB.
20. Illness of the person arrested: 321 PRB.
21. Accommodation and segregation of male, female and juvenile prisoners: 327 PRB.
22. Guards for lock-up: 329 PRB.
23. Use of handcuff: Prisoners shall not be subjected to more restraint than necessary to prevent their escape, in bailable offence prisoners should not be handcuff unless reason to believe that he can be violent: 330 PRB.
24. Guarding and escorting prisoner arrested: 331, 332 PRB.
25. Death of prisoner in Police custody: 302 (b) PRB.

26. Accused to be forwarded to Magistrate and application for detention in Police custody: 324 PRB.

324. Accused to be forwarded to Magistrate and application for detention in police custody. – (a) Section 61 read with section 167 of the Code of Criminal Procedure, requires that an accused shall be sent forthwith to the nearest Magistrate, together with a copy of the entries, in the case diary, if the enquiry be not completed within 24 hours of his arrest: but in no case shall the accused remain in police custody longer than under all the circumstances of the case is reasonable.

(b) The High Court has issued the following orders regarding remands:-

“The attention of all Magistrates is invited to the provisions of section 167 of the Code of Criminal Procedure and to the importance of exercising a sound judicial discretion in the matter of granting or refusing remands thereunder. Orders under this section, it is to be observed, should be made in the presence of the prisoner and after hearing any objection he may have to make to the proposed order. When further detention is considered necessary the remand should be for the shortest possible period. Application for remands to police custody should be carefully scrutinized and in general should be granted only when it is shown that the presence of the accused with the police is necessary for the identification of persons, the discovery or identification of property, or the like special reason. In particular, the Court is of opinion that applications, if ever made, for the remand to police custody of a prisoner who has failed to make an expected confession or statement should not be granted.”

(c) When the conditions justifying a remand to police custody exist the station officer shall forward the accused to the nearest Magistrate (whether or not he has jurisdiction to try the case), together with a copy of his case diary and report the matter to the Superintendent.

(d) The grounds upon which the remand is needed shall be distinctly stated in the application to the Magistrate.

(e) An application for a remand to police custody shall not be treated as a matter of routine and of little importance. It shall be made to the Sub-divisional Magistrate through the chief police officer present at the district or Sub-divisional headquarters.

(f) No order remanding an accused person to police custody shall be passed by an officer of lower status than a Magistrate of the 2nd class and applications for remands shall be made to Magistrates of the required status only.

(g) The exercise of the power to remand a prisoner to police custody shall be restricted to stipendiary Magistrate of the required status, and in their absence, to Honorary Magistrates of the 1st class with single sitting powers.

(h) When the object of the remand is the verification of the prisoner’s statement he should be remanded to the charge of a Magistrate.

(i) The period of remand shall be as short as possible.

(j) Whenever an application for the remand of an accused person to police custody is made, he should invariably be produced before the Magistrate. Such an application should be made at the earliest possible moment and subsequent applications for further remands to police custody, where necessary, should be made in continuation of the former. An under-trial prisoner cannot remain in police custody after 15 days have elapsed from the date of his first production before the Magistrate.

27. Memorandum of evidence: 274 PRB.

274. Memo of evidence. [§12, Act V of 1861]. – Simultaneously with the submission of the Chargesheet and its annexures, the investigating officers shall submit to the Court officer a memorandum of evidence in B.P. Form No. 41A to be attached to the final case diary. A copy of the memorandum should also be sent to the Superintendent of Police.The memorandum of evidence shall be kept apart and shall not form part of the case diary during the pendency of the case.

28. Charge sheet: 272 PRB.

272. Chargesheets. [§ 12, Act V, 1861]. – (a) When an officer-in-charge of a police-station on completion of an investigation under Chapter XIV, Code of Criminal Procedure, finds the charge proved and proposes to proceed against any person, he shall, notwithstanding that he has failed to arrest all or any of the persons against whom the charge is proved, at once submit a charge-sheet in B.P. Form No. 39, which is the report prescribed under section 173, Code of Criminal Procedure. Thus a chargesheet shall be submitted when the accused is absconding or is sent up for trial in custody or on bond (section 170, Code of Criminal Procedure). In cases where an accused is absconding, the investigating officer shall submit with the chargesheet a list of the absconder’s property so that the Court may issue attachment orders.

(b) The following instructions shall be observed :-

(i) The charge-sheet shall be sent by the quickest means to the Court officer for submission to the Magistrate. When a prima facie case is made out in a case in which articles have, been sent for chemical analysis, the charge-sheet shall not be delayed till receipt of the Chemical Examiner’s report. If a case in the first instance is reported in final report form, but subsequently by the Magistrate’s order or otherwise, the accused person is placed on his trial, the final report form shall be cancelled and a charge-sheet submitted. If, on transit from a police-station to the Court, an accused person absconds, the charge-sheet form shall stand. The case shall be kept pending till the absconder is arrested, or till his arrest is considered hopeless.

(ii) When submitting a charge-sheet, the officer-in-charge of a police-station shall communicate in B. P. Form No. 40 or 40A, the action taken by him to the person, if any, by whom information relating to the commission of the offence was first given.

(iii) Lists of property stolen, lists of property found on parties arrested, reports on previous convictions, the bail and recognisance bonds executed under section 170, Code of Criminal Procedure (Forms XXV and XXVI of Schedule V, of the Code), and a map in cases in which the rules require a map, shall be attached to the chargesheet form. Only the precise particulars as required by the column headings shall be noted in the chargesheet. The chargesheet shall be given an annual serial number and counterfoil shall be kept at the police station. Superior officers of police may not return or detain a chargesheet once submitted by the investigating officer. They may, however, direct a further enquiry pending the instructions of the District Magistrate. If the correct name or address of the accused has not been ascertained the investigating officer shall ask that a remand be applied for.

(iv) A police officer sending up an accused person for trial shall certify on the back of the chargesheet that he has carefully examined the register of persons convicted (Village Crime Note-Book, Part II), and that he has in all other respects made full enquiry whether such accused person has been previously convicted. A similar certificate shall be given regarding absconders against whom a charge is proved. Should previous convictions be ascertained, a short report of all particulars concerning them, including the names of any person who can prove each previous conviction, will be sent with the chargesheet to enable the Court officer to prove them under section 511, Code of Criminal Procedure. In addition to the certificate referred to, the investigating officer, when the accused is charged with an offence for which enhanced punishment can be given on re-conviction, shall note on the back of the chargesheet as to whether the accused has resided in his jurisdiction for a period of more or less than 10 years.

(v) When the entry regarding the previous conviction of the person sent for trial would, under existing rules, be in the register of another station, the investigating officer will note this fact on the chargesheet and inform the officer-in-charge of that station that such a person is being sent for trial, in order that the latter may search his station register and supply direct to the Court officer the required particulars about his previous conviction. On receipt of this report, the Court officer shall attach it to the chargesheet. The receipt, however, of such information in no way relieves a sadar Court officer from the performance of the duty of searching the index to the register of convictions and ascertaining whether any conviction other than those noted by the station-police are entered therein against an accused person. Enquiries should not be made in Nepal as the antecedents of person professing to reside-in that State.

(vi) On the duplicate of the chargesheet shall be entered in red ink the number of the volume and page of the conviction (Village Crime Note-Book, Part II) and surveillance registers in which the convict’s name has been registered, and in all cases declared true, whether convicted or not, the number of the entry in the property register, if any, shall also he noted.

(vii) The antecedents of each accused person shall be noted on the back of the chargesheet under one or other of the following heads :-

(1) Known thief, dacoit, robber.

(2) Vagrant with no fixed residence.

(3) Suspicious character.

(4) Habitual drunkard.

(5) Prostitute.

(6) Good character.

(7) Antecedents unknown.

273. Map or plan to accompany chargesheet in certain cases. [§ 12, Act V, 1861]. – (a) A map or plan shall always accompany the chargesheet in cases of murder, dacoity, serious riot, mail robbery, highway robbery, extensive burglary or theft where Rs. 600/- or more are stolen. Ordinarily, maps will not be required in cases other than those mentioned above; but the investigating officer may, at his discretion, prepare and send up a map in any other case. The map shall be prepared at as early a stage of the investigation as possible.

(b) The map shall, if possible, be drawn to scale, but this is not essential. If not drawn to scale, the fact shall be noted clearly on the map.

(c) The draughtsman or investigating officer who prepares the map shall bear in mind that it is essential for a correct appreciation of the situation by the Court and jury that a clear distinction should be made between (i) facts actually seen by the draughtsman himself, and (ii) facts deposed to only by witnesses. Statements made by the draughtsman as to the first group are always relevant, his statements as to the second are prima facie inadmissible and cannot be used as primary evidence to go to the jury.

It is necessary to maintain a suitable distinction in the map between these two sets of facts. This distinction shall be effected as follows :-

(i) The objects actually seen by the person preparing the map including such permanent features as buildings, trees, roads, paths and tangible points connected with the case, such as blood-stains, footprints, cloth and corpse, etc., actually seen by him shall be indicated by letters of the alphabet, A, B, C, D etc., explanations of these letters being given preferably in the margin of the map, but if this cannot be conveniently done, the explanations shall be furnished on a separate sheet of paper attached to the map.

(ii) Particulars derived from witnesses, e.g., the place where witness X is said to have stood, where the accused is said to have been standing when seen by X, where the blow was struck, etc., shall be indicated on the map by the numbers 1, 2, 3, 4, etc. The explanations of these numbers, however, shall on no account be given on the face of the map or on the separate sheet of paper referred to above, but on another sheet of paper distinct-from either the map or the list of explanations of the actual facts indicated by letters.

(d) The number of the case and the name of the accused shall be given at the top of the map, and the signature of the person who prepared it at the foot. Use should always be made of cadastral and other maps, where they are available and are of sufficiently large scale.

(e) The draughtsman or the investigating officer who prepared the map shall be produced as a witness at the trial.

29. Final report and discharge of accused person from the case: 275 PRB.

275. Final report forms. [§ 12, Act V, 1861]. – (a) A final report in B.P. Form No. 42 shall be drawn up by the investigating officer in every investigated case which does not result in chargesheet. In column 9 a clear statement of the case and of the evidence shall be given together with the reasons for not sending up any person for trial. The investigating officer shall also suggest in the same column with reasons how the case may be entered by the Magistrate in the General register for statistical purposes whether as “true”, “intentionally false”, “mistake of fact”, “mistake of law”, or “non-cognizable”.

(b) The form shall be written in triplicate every final report being given an annual serial number. One copy will be kept at the police-station and filed with the case diaries on receipt of the final memorandum and the other two copies will be sent to the Circle Inspector, the actual date and hour of despatch being entered on all the three copies. The Circle Inspector will attach one copy to his copy of the case diaries and forward the other to the Magistrate with his remarks and recommendations. [See regulation 196],

(c) The final report shall contain a specific application for the release of an arrested person from custody or his discharge from bond. Bail and recognisance bonds shall be attached to the final report.


PRB: Bengal Police Regulation 1943

Procedure in Respect of Preliminary Inquiry and Investigation by Lokpal

The Lokpal and Lokayuktas Act, 2013

Procedure in Respect of Preliminary Inquiry and Investigation

20. Provisions relating to complaints and preliminary inquiry and investigation. – (1) The Lokpal on receipt of a complaint, if it decides to proceed further, may order –
(a) preliminary inquiry against any public servant by its Inquiry Wing or any agency (including the Delhi Special Police Establishment) to ascertain whether there exists a prima facie case for proceeding in the matter; or

(b) investigation by any agency (including the Delhi Special Police Establishment) when there exists a prima facie case :

Provided that the Lokpal shall if it has decided to proceed with the preliminary inquiry, by a general or special order, refer the complaints or a category of complaints or a complaint received by it in respect of public servants belonging to Group A or Group B or Group C or Group D to the Central Vigilance Commission constituted under sub-section (1) of section 3 of the Central Vigilance Commission Act, 2003 (45 of 2003) :
Provided further that the Central Vigilance Commission in respect of complaints referred to it under the first proviso, after making preliminary inquiry in respect of public servants belonging to Group A and Group B, shall submit its report to the Lokpal in accordance with the provisions contained in sub-sections (2) and (4) and in case of public servants belonging to Group C and Group D, the Commission shall proceed in accordance with the provisions of the Central Vigilance Commission Act, 2003 (45 of 2003) :

Provided also that before ordering an investigation under clause (b), the Lokpal shall call for the explanation of the public servant so as to determine whether there exists a prima facie case for investigation :

Provided also that the seeking of explanation from the public servant before an investigation shall not interfere with the search and seizure, if any, required to be undertaken by any agency (including the Delhi Special Police Establishment) under this Act.

(2) During the preliminary inquiry referred to in sub-section (1), the Inquiry Wing or any agency (including the Delhi Special Police Establishment) shall conduct a preliminary inquiry and on the basis of material, information and documents collected seek the comments on the allegations made in the complaint from the public servant and the competent authority and after obtaining the comments of the concerned public servant and the competent authority, submit, within sixty days from the date of receipt of the reference, a report to the Lokpal.

(3) A bench consisting of not less than three Members of the Lokpal shall consider every report received under sub-section (2) from the Inquiry Wing or any agency (including the Delhi Special Police Establishment), and after giving an opportunity of being heard to the public servant, decide whether there exists a prima facie case, and proceed with one or more of the following actions, namely:-

(a) investigation by any agency or the Delhi Special Police Establishment, as the case may be;

(b) initiation of the departmental proceedings or any other appropriate action against the concerned public servants by the competent authority;

(c) closure of the proceedings against the public servant and to proceed against the complainant under section 46.

(4) Every preliminary inquiry referred to in sub-section (1) shall ordinarily be completed within a period of ninety days and for reasons to be recorded in writing, within a further period of ninety days from the date of receipt of the complaint.

(5) In case the Lokpal decides to proceed to investigate into the complaint, it shall direct any agency (including the Delhi Special Police Establishment) to carry out the investigation as expeditiously as possible and complete the investigation within a period of six months from the date of its order :

Provided that the Lokpal may extend the said period by a further period not exceeding of six months at a time for the reasons to be recorded in writing.

(6) Notwithstanding anything contained in section 173 of the Code of Criminal Procedure, 1973 (2 of 1974), any agency (including the Delhi Special Police Establishment) shall, in respect of cases referred to it by the Lokpal, submit the investigation report under that section to the court having jurisdiction and forward a copy thereof to the Lokpal.

(7) A bench consisting of not less than three Members of the Lokpal shall consider every report received by it under sub-section (6) from any agency (including the Delhi Special Police Establishment) and after obtaining the comments of the competent authority and the public servant may –

(a) grant sanction to its Prosecution Wing or investigating agency to file charge-sheet or direct the closure of report before the Special Court against the public servant;

(b) direct the competent authority to initiate the departmental proceedings or any other appropriate action against the concerned public servant.

(8) The Lokpal may, after taking a decision under sub-section (7) on the filing of the charge-sheet, direct its Prosecution Wing or any investigating agency (including the Delhi Special Police Establishment) to initiate prosecution in the Special Court in respect of the cases investigated by the agency.

(9) The Lokpal may, during the preliminary inquiry or the investigation, as the case may be, pass appropriate orders for the safe custody of the documents relevant to the preliminary inquiry or, as the case may be, investigation as it deems fit.

(10) The website of the Lokpal shall, from time to time and in such manner as may be specified by regulations, display to the public, the status of number of complaints pending before it or disposed of by it.

(11) The Lokpal may retain the original records and evidences which are likely to be required in the process of preliminary inquiry or investigation or conduct of a case by it or by the Special Court.

(12) Save as otherwise provided, the manner and procedure of conducting a preliminary inquiry or investigation (including such material and documents to be made available to the public servant) under this Act, shall be such as may be specified by regulations.

21. Persons likely to be prejudicially affected to be heard. – If, at any stage of the proceeding, the Lokpal –

(a) considers it necessary to inquire into the conduct of any person other than the accused; or

(b) is of opinion that the reputation of any person other than an accused is likely to be prejudicially affected by the preliminary inquiry,

the Lokpal shall give to that person a reasonable opportunity of being heard in the preliminary inquiry and to produce evidence in his defense, consistent with the principles of natural justice.

22. Lokpal may require any public servant or any other person to furnish information, etc. – Subject to the provisions of this Act, for the purpose of any preliminary inquiry or investigation, the Lokpal or the investigating agency, as the case may be, may require any public servant or any other person who, in its opinion, is able to furnish information or produce documents relevant to such preliminary inquiry or investigation, to furnish any such information or produce any such document.

23. Power of Lokpal to grant sanction for initiating prosecution. – (1) Notwithstanding anything contained in section 197 of the Code of Criminal Procedure, 1973 (2 of 1974) or section 6A of the Delhi Special Police Establishment Act, 1946 (25 of 1946) or section 19 of the Prevention of Corruption Act, 1988 (49 of 1988), the Lokpal shall have the power to grant sanction for prosecution under clause (a) of sub-section (7) of section 20.

(2) No prosecution under sub-section (1) shall be initiated against any public servant accused of any offense alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, and no court shall take cognizance of such offense except with the previous sanction of the Lokpal.

(3) Nothing contained in sub-sections (1) and (2) shall apply in respect of the persons holding office in pursuance of the provisions of the Constitution and in respect of which a procedure for removal of such person has been specified therein.
(4) The provisions contained in sub-sections (1), (2) and (3) shall be without prejudice to the generality of the provisions contained in article 311 and sub-clause (c) of clause (3) of article 320 of the Constitution.

24. Action on investigation against public servant being Prime Minister, Ministers or Members of Parliament. – Where, after the conclusion of the investigation, the findings of the Lokpal disclose the commission of an offence under the Prevention of Corruption Act, 1988 (49 of 1988) by a public servant referred to in clause (a) or clause (b) or clause (c) of sub-section (1) of section 14, the Lokpal may file a case in the Special Court and shall send a copy of the report together with its findings to the competent authority.

Commencement of investigation by a police officer

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.

Reason to suspect or suspicion

The expression “reason to suspect” as occurring in Section 157(1) is not qualified as in Section 41(a) and (g) of the Code, wherein the expression, “reasonable suspicion” is used. therefore, it has become imperative to find out the meaning of the words “reason to suspect” which words are apparently clear, plain and unambiguous. Considering the context and the object of the procedural provision in question, we are of the view that only the plain meaning rule is to be adopted so as to avoid any hardship or absurdity resulting therefrom and the words are used and also to be understood only in common parlance. We may, in this behalf, refer to a decision of the Privy Council in AIR 1939 47 (Privy Council) wherein Lord Atkin said as follows:Continue Reading

Investigation under Money-Laundering Act and Final Report

The term ‘investigation’ has not been defined in the Money-Laundering Act but it has been defined in the Code. With reference to the said definition of the term ‘investigation’ appearing in the Code, it was contended on behalf of the Enforcement Directorate that the investigation as defined in the Code, only includes the proceedings for the purpose of collection of evidence conducted by the police officer and does not include submission of final report, which is provided u/s 173 of the Code.

13. It is true that the term ‘investigation’ has not been defined in the Money-Laundering Act, but the said term has been defined under the Code, as quoted below:

(h) “investigation” includes all the proceedings under this Code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorised by a Magistrate in this behalf;

14. The question as to whether the term ‘investigation’ shall include submission of Final Form or not, has been set at rest by the Supreme Court in the case of H.N. Rishbud and Inder Singh Vs. The State of Delhi, . The relevant finding of the Supreme Court in paragraph 5 of the judgment is quoted below:

Thus under the Code investigation consists generally of the following steps: (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 the offence which may consist of (a) the examination of various persons (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 chargesheet u/s 173.

15. Similar view has also been expressed by the learned Single Judge of Orissa High Court in the case of Smt. Sabita Praharaj Vs. Smt. Gitarani Praharaj and Others, .

16. Section 173 of the Code makes it obligatory on the part of the’ Officer in charge to submit the report of completion of investigation before the concerned Court. Section 173(2) of the Code provides that as soon as the investigation is completed, the Officer in charge of the police station, shall file a report in the form prescribed by the State Government giving certain information as indicated in the said provision including nature of the information and as to whether any offence appears to have been committed and if so, by whom. It will also include filing of the final report, if no material is found during investigation for submission of a charge-sheet. It will not be out of place to say that when an investigation is conducted in respect of scheduled offences and no material is found to support the allegations during the investigation, Final Form is also submitted u/s 173 of the Code. Therefore, there is no reason why the term ‘investigation’ shall not include submission of final report when in course of investigation no material is found against the accused for submission of the charge-sheet.

17. Apart from above, it can never be the intention of the Legislature while legislating the Money-Laundering Act to empower the Directorate of Enforcement to sit over the records when after investigation no material is found in respect of the offence alleged under the said Act against an accused keeping the public, the complainant and most importantly the Court in dark regarding nature and extent of investigation and outcome thereof. Lack of judicial scrutiny, coupled with lack of transparency would confer too excessive a power/discretion upon the Director of Enforcement. Judicial scrutiny under Article 226 would also not be of any help when the petitioner has no access to the nature, manner and extent of investigation by the Directorate. We cannot overlook the fact that generally persons engaged in money laundering are likely to be rich and powerful. This should not be seen as doubting the personnel presently serving in the directorate, but then there would be others who would occupy these positions in future.

18. For avoiding undesirable consequences it is open in statutory interpretation to read it down or read it wide. However, we are of the view that Section 65 of the Money-Laundering Act takes care of such a situation and the Enforcement Directorate is duty bound to submit final report or charge-sheet, as the case may be, before the Court which is designated as Special Court by the Central Government in consultation with the Chief Justice of the High Court u/s 43 of the Money-Laundering Act. In the present case, admittedly after completing investigation the Enforcement Directorate has not filed the final report on the ground that there is no provision for submission of the final report under the Money-Laundering Act. Since we hold that the term ‘investigation’ shall also include submission of final report as defined in the Code, we direct that if the process is issued by the Magistrate or upon a further investigation a charge-sheet is submitted in respect of any scheduled offence, the Enforcement Directorate will submit the Final Form before the designated Court so that the designated Court shall be in a position to examine the efforts made by way of investigation, the evidence collected during the investigation and find out as to whether the final report was justified or not. The complainant shall also get an opportunity to look into the report and submit a protest petition, if he desires. We therefore, dispose of this writ petition directing the Enforcement Directorate, in case of contingencies given above, to submit Final Form before the designated Court within 2 months from the date of knowledge of the same.


Source :

(2013) 6 ADJ 672 : (2013) 3 UPLBEC 2239

ALLAHABAD HIGH COURT

( Before : Sushil Harkauli, J; N.A. Moonis, J; L.K. Mohapatra, J )

SHIV KANT TRIPATHI  Vs. STATE OF U.P. AND OTHERS 

Criminal Misc. Writ Petition No. 4909 of 2010

Decided on : 01-08-2013

Magistrates are the normal custodians of general administration of criminal justice

We can only repeat in this connection the observations of the Privy Council in – ‘AIR 1936 PC 253 (2) ’, in regard to the Magistrates placing themselves in positions where they would have to step into the witness box and depose as ordinary citizens-

“In their Lordships’ view it would be particularly unfortunate if Magistrates were asked at all generally to act rather as police Officers under Section 162 of the Code; and to be at the same time freed, notwithstanding their position as Magistrates, from any obligation to make records under Section 164. In the result they would indeed be relegated to the position of ordinary citizens as witnesses and then would be required to depose to matters transacted by them in their official capacity unregulated by any statutory rules of procedure or conduct whatever……..”Continue Reading

If no action is taken by police on information given to them, the informant’s remedy lies under Sections 190, 200, Cr. P.C., not a Writ Petition

In Gangadhar Janardan Mhatre vs. State of Maharashtra and Ors. (2004) 7 SCC 768.held :

“When the information is laid with the police, but no action in that behalf is taken, the complainant is given power under Section 190 read with Section 200 of the Code to lay the complaint before the Magistrate having jurisdiction to take cognizance of the offence and the Magistrate is required to enquire into the complaint as provided in Chapter XV of the Code. In case the Magistrate after recording evidence finds a prima facie case, instead of issuing process to the accused, he is empowered to direct the police concerned to investigate into offence under Chapter XII of the Code and to submit a report. If he finds that the complaint does not disclose any offence to take further action, he is empowered to dismiss the complaint under Section 203 of the Code.Continue Reading