INVESTIGATORY POWERS OF THE POLICE UNDER THE CODE OF CRIMINAL PROCEDURE

Abstract

One of the most important tasks of the police is their role in the investigation of a crime. Investigatory powers of the police are laid down in the Code of Criminal procedure, 1973. For various reasons, as I will discuss in this paper, it is the view of several learned people or otherwise that perhaps the police should not be entrusted with such wide ranging powers of investigation. This article aims to counter those arguments by providing reasons and examples for why the police must be trusted of being the receiver of all those powers as prescribed by the statue, if not more, in order to do their job properly and bring about justice to the aggrieved.

Introduction

The police is a law enforcement agency of the government and the initial point of contact in the criminal justice system, the police is responsible for maintenance of law and order in the country and provides a sense of security to its citizens.

Investigation is an important part of the criminal justice system. The preliminary actions needed to be taken after a crime has been committed and reported to the police, is also dealt with the police department. The code of criminal procedure[1] (henceforth referred to as Cr.P.C) is one of the main legislations used for administration of criminal law in India. The code places a lot of discretion in the hands of the police in the process of delivery of justice to the intended aggrieved person or entity. This requires highest level of competence in investigating the cases properly which includes things like recording the facts and evidences correctly and in a time bound manner as prescribed under the Cr.P.C and assistance from the general public with any relevant information regarding the case that they might have. In fact, investigation is so important that neither the magistrate nor the court has the power to direct the police about their investigation should be conducted. It is complete left to the discretion of the police[2]. This decisions is reflective about the amount of trust that is placed on the police for carrying out this important task. This trust must be because of the merit of police and not simply a bogus rule.

An Investigation is not about collecting evidence against the alleged accused. The purpose of an investigation is to collect evidence in an attempt to reach to a truthful conclusion[3] about the person who should actually be punished. Therefore, there is an enormous pressure on the police to conduct investigation thoroughly and in a timely manner, according to the prescribed steps by the statue. Even though so much importance if placed on investigation, the police does not get as much help as they should and therefore, the discretion that the Cr.P.C allows them to exercise in the course of an investigation is justified.

Overview of stages of investigation

Section 2 (h) of Cr.P.C defines what an investigation is as follows:

Section 2 (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 authorized by a Magistrate in this behalf.[4]

The general steps of an investigation was laid down in a case in the Supreme Court[5]. Investigation cannot begin without an information of a crime being given to the police station. Therefore the first step leading to the beginning of an investigation is information to police. If the police officer deems it to be a cognizable offence, information regarding the crime is condensed in a written format. This information must be written down as a first information report (FIR). An FIR sets in motion the subsequent criminal law proceedings. An FIR must be recorded in writing in as directed under s. 154 of Cr.P.C[6] in cases of cognizable offences and signed by the person who has given the information. An FIR is an essential piece of any criminal court proceeding as it can be often cross examined by the lawyers. A faulty FIR can become a setback in deciding a case.

S. 156 of the Cr.P.C[7] enables an investigation of a cognizable offence by the police. They cannot investigate non-cognizable offences and there are separate rules regarding such distinct offences. An investigation should be left solely to the police for investigation and cannot be intervened by the court[8] as long as they have taken diligent steps to ensure that the offense so committed is needed a cognizable offence. The police cannot under any circumstances, deny recording of an FIR when approached by any person.

After an FIR is filed, the investigation is followed up with s. 157[9] which lays down that on making the decision that a reported information about a crime is worth investigating, a police officer must proceed to the area of the crime to investigate the facts and circumstances of the case and make any necessary arrests, if needed. A copy is mandatorily sent to the Magistrate in order to give him/her the information, keep him on the loop of an ongoing investigation. This report is also submitted to the Magistrate as he has the power to order further investigation under s. 156 (3) in cases where he is not satisfied with the conclusion of the investigation or he has sufficient grounds to believe that the police have not done their job properly.

 In India, police are allowed to not go ahead with the investigation of a complaint if the police officer with good intentions feels that it is not an offence worth investigating or if the offence is too trivial to be sought after[10]. That is not to say that the police can make unjust use of such a power vested upon them. For every complaint that they decide not to investigate and collect evidence towards, they must record in writing their reasons for doing so[11]. These are some points show that there are sufficient checks in place to ensure that the police’s powers are not misused by them. Just like they are given a wide array of powers, it is also ensured within the statute itself that it places fair amount of limitations on them.

Other important tasks of the police in the course of an investigation includes the recording of witness statements under s.161[12]. Lastly, after the conclusion of an investigation, if there is sufficient evidence, the police may file a chargesheet under s. 173 of the Cr.P.C[13]. A chargesheet consists of the charges that the accused person is ought to be tried for. Such a chargesheet is then submitted to the court, where after the trail begins. S. 173[14] also gives police the discretion to condense or omit any part of the states recorded under s. 161 if according to them they seem redundant. This is a serious discretionary power given to the police. However, s. 173[15] also mentions that this does not stop a Magistrate from ordering a further investigation as under s. 156 (3), another counter argument to those who argue that the police’s powers are too wide under the Cr.P.C. Therefore, it is not that the powers that the statute gives to police is uncheck. There certainly exists limitation or ways to circumvent police action if they seem inappropriate.

Criticisms towards workings of the police

There has been no dearth criticism towards the police and especially in matters of investigations. Claims start from fabrication of evidence and addition of false evidence by the police leading to wrongful and malicious prosecution and the lack of use of state of art technology by the police in important matters like an investigation is just the beginning. There has been reports of custodial deaths and breach of Human Rights under the U.N. Some have recommended allowance of conduction of defence investigations like in USA in the light of police incompetency in investigations in India[16].

Difficulties in police investigations

The police force in India experiences lack of training, is overwhelmingly understaffed, experiences inhumane work hours, highly susceptible to political forces and because of these forces, resistant to reformative measures[17]. All these reasons combined sometimes leads to wrongful prosecution due to insufficient evidence submitted by the police. It is not the number of cases that the police cannot solve, it is the fact that even one individual is denied justice that makes it a problem. Police’s job is to make people feel secure, being the safeguards of law and order. But when they only face difficult challenges in the way of their workings, how can they be expected to do their job efficiently. Some issues affecting effective working of the police are discussed below:

  1. Time constraints

Starting with a constraint prescribed by the Cr.P.C itself, is the pressure to complete an investigation in a timely manner. There are several reasons for the incompetency of the police in not being able to conclude investigations under stipulated time as mentioned in s. 167[18] of the Cr.P.C.

 My argument of putting time constraint as a liability while examining police efficiency in matters of investigation must not be misunderstood as an excuse or a cover up for police’s inability to complete tasks within stipulated time frame. An investigation requires the highest level of accuracy in recording every possible evidence. Justice must be the aim of an investigation. In an effort to perhaps ensure speedy delivery of justice, the Cr.P.C prescribes a time bound investigation period of maximum 90 days (only in cases where the crime is punishable with death penalty, life imprisonment or a term not less than 10 years. For other crimes the time limit is shorter) under the orders of a magistrate who believes that there is sufficient evidence and reason to believe that the accusations are well founded[19]. Moreover, police force in India is heavily understaffed[20] and this leads to atrocious working hours for the ones already employed[21]. What we need to understand is that it not the time constraint itself that might be counted upon as a reason for failures in accurate investigation reports; a multitude of other factor must also be taken into account.

2. Political influence on the police

The three pillars of democracy in India: Legislature, executive and judiciary, were set up with the idea that all three of them will have separate administrative duties while keeping a system of checks and balances. Over the years unfortunately, political gameplay in India had reached unprecedented levels and the police as a state machinery has also not been able to escape its chokehold. In the recent Kathua Unnao[22]case, a Bharatiya Janata Party leader was accused. As circumstances would unfold, the victim committed suicide shortly after due to alleged refusal of the police to register an FIR, which is was a disobedience to the Lalita Kumari judgement[23]. Her father was sent to jail after a fight between him and the accused legislature’s family, where he died allegedly due to police torture. The Allahabad high court reprimanded the UP police for filing a false case against the victim’s father[24]. Cases like this show the political grip on the police’s mechanisms, invisible behind the blame of wrongful prosecution made by the police.

Even the Supreme Court recognised the pressure that the police were under due to political influences in power and in response to such disability caused in the way of police work, in the case of Prakash Singh v. Union of India[25] it gave directions for establishing fixed tenures for police officers at important posts so as to minimize the opportunities available to officers building ‘give and take’ relations with ministers and political leader. In the same ruling, it was held that law and order duties must be separated from investigation functions. Such directives by the court have however, not been complied with or are given little significance by state governments. Now punishment transfers of officers who work honestly and are not scared to expose politician, are common[26]. As the famous saying by Oscar Wilde goes, “life imitates art far more than art imitates life”, numerous Bollywood movies have been made to show this sick tactic used my ministers in power to avoid getting punished for their crimes. Around 28 percent of the civil police reported pressure from politicians as the biggest hindrance during crime investigation[27]

3. Budgetary constraints

Lack of funds play a major role in the equipment that the police gets to use in investigations. This lack of money endangers the ability of the police to secure evidences in a secure manner for the entire duration of the case and presentation in court. There are many instances where cases have had to be dismissed in the light of evidences collected being lost, simple because the police do not have the means and technology to collect and keep them properly. In most states the police do not have separate allocation of funds required for criminal investigation tasks like preservation of evidence and photography. Other than that, the police are also not paid enough for the amount of over work that they have to do[28].

4. Media interference

In India, media enjoys least number of legal constraints, an advocate for free speech. However media today has become a hindrance to police investigations[29]. They no longer stick to their job of reporting facts and circumstances of case but carry out their own investigations. What media must understand is that there is a reason that a government machinery with qualified and trained people like the police exists and simply not everyone can investigate or attempt to investigate a case. What happens in most media trials is that some information which might be available at the public domain is taken into account on the basis of which a conviction is pronounced, leading to incorrect conclusions most of the times. But public might get swayed by these media ‘convictions’ and demand for the prosecution of the wrong individual. Public outrage puts pressure on the police to sometimes arrest people who might be innocent.

Such aggressive reporting by news networks poses potential damage to investigations being conducted. Broadcasting incomplete or wrong facts and reports can jeopardize police’s ability to collect evidences for ongoing investigations. Witnesses might refuse to give statements in fear of getting defamed, wide spread reporting and leak of information might tip off other culprits before the police can reach them etc.

Conclusion: why the police must exercise discretionary powers

There exists a backlog of criminal cases not only in India courts, which is just one part of the problem. Another problem lies with the amount of pending investigations that take weeks if not months to complete. The police requires confidence, support and cooperation from the citizens carry out investigation. For example, witness statements are essential in any crime investigation. However, there is generally an air of public mistrust regarding the workings of the police[30] corroborated by observations written by Beatrice Jauregui in an article[31] . Charges of corruption, inefficiency, and display of police brutality does not help this cause. In fact, police prejudices and politics interfere with police a lot. Keeping all these points in mind, of course the police want to display police credibility in every chance that they get. Their motive becomes to complete an investigation at any cost. Investigation no longer becomes a method to search for the truth but as a task that must be completed within a fixed number of days so that no one blames the police. Political leaders exerting their power to exercise undue influence on the police to silence truthful officers doing their job, needs for police to make use of their discretionary powers conferred to them under the code and make arrests and detain them. So there exists a need of these powers. In fact, majority of criticisms about the working of the police and the reasons that make them do those wrongful things can be eliminated by clubbing together government imposed police reforms along with increasing police powers so that abled officers by using their judgement can ensure stability of law and order in the country and help in the delivery of justice.


[1]Code of Criminal Procedure, 1973

[2] State of W.B v. S.N Basak AIR 1963 SC 447

[3] Kari Chaudhary v. Sita Devi AIR 2002 SC 441

[4] Code of Criminal Procedure, section 2 (h) (1973)

[5] H.N Rishbud v. State of Delhi AIR 1955 SC 196

[6] Code of Criminal Procedure s. 154 (1), 1973

[7] Code of Criminal Procedure s. 156 (1) & (2), 1973

[8] State of Haryana and ors v. Ch. Bhajan Lal and ors (1971) 1 SCC 34

[9] Code of Criminal Procedure s. 157 (1), 1973

[10] Code of Criminal Procedure s. 157 (1) (a) & (b) , 1973

[11] Code of Criminal Procedure s. 157 (2) , 1973

[12] Code of Criminal Procedure s. 161 (3), 1973

[13] Code of Criminal Procedure s. 173 (2), 1973

[14] Code of Criminal Procedure s. 173 (6), 1973

[15] Code of Criminal Procedure s. 173 (8), 1973

[16] R. Deb, Police Investigation: A Review, Journal of the Indian Law Institute, 260-271 (1997)  https://www.jstor.org/stable/pdf/43953271.pdf

[17] Priya Vedavalli and Tvesha Sippy, Don’t just blame India’s courts, it’s the police that can’t solve criminal cases in time, The Print, (December 20, 2019 10:02 am) https://theprint.in/opinion/dont-just-blame-indias-courts-its-the-police-that-cant-solve-criminal-cases-in-time/337951/

[18] Code of Criminal Procedure s. 167, 1973

[19] Code of Criminal Procedure s. 167 (i), 1973

[20] Sriharsha Devulpalli and Vishnu Padmanabhan, India’s police force among the world’s weakest, Livemint, (June 19, 2019 01:28 pm) https://www.livemint.com/news/india/india-s-police-force-among-the-world-s-weakest-1560925355383.html

[21] Atman Mehta, ‘it’s not like Singham’: Policemen in India work 14 hours a day and get a few weekly offs, Scroll.in, (October 26, 2019 01:30 pm) https://scroll.in/article/941656/its-not-like-singham-policemen-in-india-work-14-hours-a-day-and-get-few-weekly-offs

[22] Raghav Ohri, Six convicted, one acquitted in Kathua rape case; sentencing shortly, The Economic Times, (June 11, 2019 07:11 am) https://economictimes.indiatimes.com/news/politics-and-nation/kathua-rape-case-verdict/articleshow/69720996.cms

[23] Lalita Kumar v. Govt. of UP and ors (2008) 7 SCC 164

[24]Urmila Pullat, The political capture of the police in India, Livemint, (April 19, 2018 02:24 am) https://www.livemint.com/Opinion/GHQrTiUfvD9RnYLLUPsKyI/The-political-capture-of-the-police-in-India.html

[25] Prakash Singh v. Union of India (2019) 4 SCC 6

[26]Status of Policing in India Report 2019 police adequacy and working conditions, Common Cause India & Centre for the study of developing societies (CSDS) (2019)  https://www.commoncause.in/uploadimage/page/Status_of_Policing_in_India_Report_2019_by_Common_Cause_and_CSDS.pdf

[27] ibid

[28] The Hindu Data Team, Data: India’s policemen work over time but most don’t get paid extra, The Hindu, (September 11, 2019) https://www.thehindu.com/news/national/data-indias-policemen-work-overtime-but-most-dont-get-paid-extra/article29391098.ece

[29]Justice U L Bhat, Media Interference in investigation and trial, LiveLaw.in, (January 29, 2016 6: 53 am) https://www.livelaw.in/media-interference-in-investigation-and-trial/

[30] Public Order, Second Administrative Reforms Commission, Department of Administrative Reforms and Public Grievances, 2007, https://darpg.gov.in/sites/default/files/public_order5.pdf

[31] Beatrice Jauregui, Beatings, Beacons and Big Men: Police Disempowerment and Delegitimation in India, Law and Social Enquiry 647-649 (2013) https://www.jstor.org/stable/24545738

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