Statutory right on the part of the police to investigate the circumstances of an alleged cognizable crime | Stages of criminal investigation | Power of the Investigating Officer | Discretion of the Magistrate 

Case referred: Abhinandan Jha & Ors vs Dinesh Mishra 1968 AIR 117


A Background

Just as it is essential that every one accused of a crime should have free access to a court of justice so that he may be duly acquitted if found not guilty of the offence with which he is charged, so it is, of the utmost importance that the judiciary should not interfere with the police in matters which are within their province and into which the law imposes on them the duty of inquiry. In India, as has been shown, there is a statutory right on the part of the police to investigate the circumstances of an alleged cognizable crime without requiring any authority from the judicial authorities, and it would be an unfortunate result if it should be held possible to interfere with those statutory rights by an exercise of the inherent jurisdiction of the court. The functions of the judiciary and the police are complementary, not overlapping, and the combination of individual liberty with a due observance of law and order is only to be obtained by leaving each to exercise its own function, always, of course, subject to the right of the court to intervene in an appropriate case when moved under Sec 491 of the Criminal Procedure Code to give directions in the nature of habeas corpus. In such a case, however, the court’s functions begin when a charge is preferred before it, and not until then.

What does Investigation mean? When does it start? 

Investigation usually starts on information relating to the commission of an offence given to an officer in-charge of a police station and recorded under section 154 of the Code. If from information so received or otherwise, the officer in charge of the police station has reason to suspect the commission of an offence, he or some other subordinate officer deputed by him, has to 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. Thus investigation primarily consists in the ascertainment of the facts and circumstances of the case. By definition, it includes ‘all the proceedings under the Code for the collection of evidence conducted by a police officer’.

Stages of Investigation

Under the Code (Cr.P.C. 1973) 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 of seizure of things considered necessary for the investigation and to be produced at the trial.

(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 filing of a charge-sheet under Section 173.

It is also clear that the final step in the investigation viz., the formation of the opinion as to whether or no’ there is a case to place the accused on trial is to be that of the officer-in-charge of the police station.


Power/Discretion of the Magistrate | Power of the investigating officer

Section 190, which is the first section in the group of sections headed ‘Conditions requisite for Initiation of Proceedings.’ Subsection (1) of this section covers report sent under s. 173. The use of the words ‘may take cognizance of any offence’, in Section 190(1) imports the exercise of a ‘judicial discretion’, and the Magistrate, who receives the report, under Section 173, will have to consider the said report and judicially take a decision, whether or not to take cognizance of the offence. From this it follows that it is not as if that the Magistrate is bound to accept the opinion of the police that there is a case for placing the accused, on trial. It is open to the Magistrate to take the view that the facts disclosed in the report do not make out an offence for taking cognizance or he may take the view that there is no sufficient evidence to justify an accused being put on trial. On either of these grounds, the Magistrate will be perfectly justified in declining to take cognizance of an offence, irrespective of the opinion of the police. On the other hand, if the Magistrate agrees with the report, which is a charge-sheet submitted by the police, no difficulty whatsoever is caused, because he will have full jurisdiction to take cognizance of the offence, under Sec. 190(1)(b) Cr.P.C. This will be the position, when the report under Sec 173 Cr.P.C., is a charge-sheet.

Then the question is, what is the position, when the Magistrate is dealing with a report submitted by the police, under Sec. 173 Cr.P.C.,, that no case is made out for sending up an accused for trial, which report, is called, in the area in question, as a ‘final report’? Even in those cases, if the Magistrate agrees with the said report, he may accept the final report and close the proceedings. But there may be instances when the Magistrate may take the view, on a consideration of the final report, that the opinion formed by the police is not based on a full and complete investigation, in which case the Magistrate will have ample jurisdiction to give directions to the police, under Sec. 156(3) Cr.P.C., to make a further investigation. That is, if the Magistrate feels, after considering the final report, that the investigation is unsatisfactory, or incomplete, or that there is scope for further investigation, it will be open to the Magistrate to decline to accept the final report and direct the police to make further investigation, under Sec. 156(3) Cr.P.C.

The police, after such further investigation, may submit a charge-sheet, or,, again submit a final report, depending upon the further investigation made by them. If, ultimately, the Magistrate forms the opinion that the facts, set out in the final report, constitute an offence, he, can take cognizance of the offence under Sec 190(1)(c) Cr.P.C., notwithstanding the contrary opinion of the police, expressed in the final report.

In this connection, the provisions of S. 169 of the Code, are relevant. They specifically provide that even though, on investigation, a police officer, or other investigating officer, is of the opinion that there is no case for proceeding against the accused, he is bound, While releasing the accused, to take a bond from him to appear, ‘If and. when required, before a Magistrate. This provision is obviously to meet a contingency of the Magistrate when he considers the report of the investigating officer, and judicially takes a view different from the police.

The formation of the opinion as to whether or not there is a case to place the accused on trial before a Magistrate, is ‘left to the officer-in-charge of the police station. There is no express power which gives jurisdiction to pass an order of the nature under attack; nor can any such powers be implied. There is certainly no obligation, on the Magistrate, to accept the report, if he does not agree with the opinion formed by the police. Under those circumstances, if he still suspects that an offence has been committed, he is entitled, notwithstanding the opinion of tile police, to take cognizance, under Sec. 190(1)(c) Cr.P.C.  That provision is obviously intended to secure that offences may not go unpunished and justice may be invoked even where persons individually aggrieved are unwilling or unable to prosecute, or the police, either wantonly or through bona fide error, fail to submit a report, setting out the facts constituting the offence.

Therefore, a very wide power is conferred on the Magistrate to take cognizance of an offence, not only when he receives information about the commission of an offence from a third person, but also where he has knowledge or even suspicion that the offence has been committed. It is open to the Magistrate to take cognizance of the offence, under Sec 190(1) (c) Cr.P.C., on the ground that, after having due regard to the final report and the police records placed before him, he has reason to suspect that an offence has been committed. Therefore, these circumstances will also clearly negative the power of a Magistrate to call for a charge-sheet from the police, when they have submitted a final report.

There is no power, expressly or impliedly conferred, under the Code, on a Magistrate to call upon the police to submit a charge-sheet, when they have sent a report under Sec. 169of the Code, that there is no case made out for sending tip an accused for trial.


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