Dr.

Absarul Hasan Kidwai

Dept. of Law
AMU
Study Material
CRIMINAL PROCEDURE CODE
B.A.LL.B. (HONS) VIII SEMESTER
Unit 2
INVESTINGATION AND INQUIRY PROCEEDINGS
A. (a) First Information Report (FIR) (SS. 154-157)
Section 154, Information in Cognizable Cases: 1) 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 to 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 as aforesaid, shall
be signed by the person giving it, and the substance thereof shall be entered in a book to be
kept by such officer in such form as the State Government may prescribe in this behalf.

(2) A copy of the information as recorded under sub-section (1) shall be given forthwith, free
of cost, to the informant.
(3) Any person aggrieved by a refusal on the part of an officer in charge of a police station to
record the information referred to in sub- section (1) may send the substance of such
information, in writing and by post, to the Superintendent of Police concerned who, if satisfied
that such information discloses the commission of a cognizable offence, shall either investigate
the case himself or direct an investigation to be made by any police officer subordinate to him,
in the manner provided by this Code, and such officer shall have all the powers of an officer
in charge of the police station in relation to that offence.''
The basic purpose of filing FIR is to set the criminal law into motion and not to state all the
minute details therein. The information under section 154 of Cr.P.C is generally known a s
F.I.R though 'first is not used in the code. F.I.R is not the be all and end all of every criminal
case and is not substantive evidence. It can be used only for limited purposes, like corroborating
the maker thereof or as one of res-gestae or for being tendered in a proper case u/sec 32 (1) of
Evidence Act or part of informant's conduct u/sec 8 of Evidence Act. (AIR 1963 AP 252).

F.I.R-- Silent Features Evidentiary value of F.I.R:

Information of cognizable offence can be given by The value of F.I.R depends on the circumstances of
any person to police having jurisdiction each case, nature of the crime, information and
opportunity of witnessing the offence (AIR 1973 SC
Despite F.I.R is outside the mischief of section 162 476)
of Cr.P.C, still it is not substantive piece of evidence;
that is, it cannot vouch safe the truth of its contents. F.I.R can be used:
It has to be duly proved as any other fact by evidence.
1. F. I. R. is not a substantive piece of
Police officer shall reduce such information in evidence. It can be used either for
writing corroboration under Section 157, or for
contradiction under Section 145 of the
Informant's signature must be obtained Evidence Act, of the maker of the

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Dr. Absarul Hasan Kidwai
Dept. of Law
AMU
the contents of such information should be read over
to Informant
such information must be entered in record by the
police officer
Police officer shall give a copy of such information
to the informant forthwith
Original F.I.R must be sent to the Magistrate
forthwith
Despite a police officer refuses to register F.I.R, the
aggrieved person can send such information to the
Superintend of Police by post.
If F.I.R is made immediately after the occurrence of
an incident, when the memory of the person giving it
is fresh in his mind about the occurrence, the sanctity
of such F.I.R will be increased. That too, F.I.R must
not be made during the investigation.
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statement. (State of Orissa vs Chakradhar
Behera And Ors, AIR 1964 Ori 262,)
2. It is a well settled law that the F.I.R. by
itself cannot be used as a substantive piece
of evidence and it can only be used as a
contradiction or corroboration thereof.
[Sajji Kumar S/O Pappu Kumar vs State of
Goa]
3. In some cases, F.I.R can be used as Dying
Declaration. (See Relevant section 32 (1) of
Indian Evidence Act)
4. If F.I.R is given by accused, it cannot be
used either for corroboration or
contradiction in case it is affected by section
25 of Indian Evidence Act)
5. F.I.R can be used to prove motive.
6. F.I.R can be used to prove previous conduct
of accused
7. F.I.R can be used to show subsequent
conduct of accused
8. F.I.R can be used for cross-examination of
informant who gave such information.
9. F.I.R got recorded by the police has been
taken as dying declaration by the
honourable Supreme Court, when the
person did not survive to get his dying
declaration recorded [AIR 1976 2199
(SC)].
10. Act of investigation and filing charge sheet
are separate. (1978 Crl.L.J 63).
11. Whether investigation commenced or not is
a question of fact. (AIR 1970 SC 1566)
12. F.I.R recorded by investigation officer as
narrated by eye witnesses, court should not
start with a presumption that it was false or
fabricated. (1985 SCC (Cr) 464).
13. F.I.R recorded in course of investigation of
cognizable offence -- Inadmissible. (1986
Crl .L.J 1620 ; AIR 1957 SC 366; AIR 1966
SC 119).
14. F.I.R quashed due to inordinate delay in
investigation not to be interfered with.
(1990 Crl.L.J 1306).
15. Person lodging F.I.R entitled to hearing,
when on the basis of Police report,
Magistrate prefers to drop proceedings
instead of taking cognizance of offence.
(1985 SCC (Cr.) 267.
Dr. Absarul Hasan Kidwai
Dept. of Law
AMU
A FIR (First Information Report) is the earliest form and the first information of a cognizable
offence recorded by an officer-in-charge of a police station. The underlying reason for
documenting a FIR is to a set criminal law into motion and not to express all the small details
therein.
Though this term is not used in the Criminal Procedure Code however, ‘An information given
under sub-section (1) of section 154 CrPC is commonly known as first information report
(FIR)’
The information given to the Police Officer for registration of a case must be authentic and
bona fide. It should be traceable to an individual who should be responsible for imparting
information and not be gossip. It may or may not be hearsay but the person who reports of the
said hearsay should take responsibility for it and mention the source of information. FIR
should not be result of an irresponsible rumour.
If the information given by the woman against whom an offence u/s 326A,326 B, 354, 354A-
D, 376, 376A-E and 509 of Indian Penal Code is alleged then such information shall be
recorded by a women police officer.
Meaning of Cognizable Offence:
An offence in which the police officer has the supreme authority of arresting without a warrant
and to be able to start an investigation with or without the permission of the court is termed as
a cognizable offence.
Who can lodge a FIR?
FIR can be filed by the following persons:
1) By an aggrieved person or somebody on his behalf.
2) Any person who is aware of the offence by being either:
(a) An eye witness and/or
(b) hearsay account.
3) By the accused himself.
4) By the SHO on his own knowledge or information even when a cognizable offence is
committed in view of an officer in charge he can register a case himself however he is not
bound to take down in writing any information and even if the information is only by a medical
certificate upon arrival of the injured, then the (SHO) should enter it in daily diary and go to
hospital for recording detailed statement of injured.
In all the cases the information must be definite, not vague, authentic, not baseless, gossip or
rumour, clearly making out a cognizable case. It is to be kept in mind that the person delivering
the hearsay is required to mention the source of his information and submit it along with his/her
signature to prevent it from amounting to false rumour.
Where FIR should be filed?
Any person can lodge a first Information Report (FIR). It is not necessary for him to be the
victim or the injured or an eye-witness. It is not essential for a First Information Report to be

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Dr. Absarul Hasan Kidwai
Dept. of Law
AMU
true and hence it can be a hearsay and need not necessarily be given by the person who has
first-hand knowledge of the facts.
When should it be filed?
A FIR should be filed in the police station of the concerned area in whose jurisdiction the
offence took place.
Though it is secondary, however it is an equally important object to obtain early information
of an alleged criminal activity and to record the circumstances before the trial, lest such
circumstances are forgotten or embellished.
Objective of FIR:
The objectives of filing an FIR are stated as below:
(1) To reduce the substance of data given of a cognizable offense, whenever given orally, into
a composed written form.
(2) To have it signed by the complainant if submitted in writing.
(3) To maintain a record of information of the cognizable offences committed.
(4) To initiate investigation on receipt of information of commission of cognizable offence.
(5) To inform Magistrate regarding the nature of the information received.
In the case of Habib v State of Bihar, the court stated the principle object of FIR which was
to set the criminal law in motion. In the case of P. Sirajuddin v State of Madras, it has been
held that to obtain an early information of an alleged offence from the informant and to put
into writing the statement before his memory fails or before he gets the time and opportunity
to embellish it, FIR is necessary.
Essentials of FIR:
The essential conditions to be known while reporting/recording information are:
1. What information needs to be conveyed?
2. In what capacity the crime happened?
3. Who committed the crime?
4. Against whom the crime was committed?
5. When was the crime initiated?
6. Where did the crime take place?
7. What was the motive behind?
8. The way of occurrence, if any
9.Witnesses, if any.
10. If anything was taken away?
11. What traces were left by the accused?

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 Dr. Absarul Hasan Kidwai
Dept. of Law
AMU
12. Any causality, if at all.
Procedure of filing FIR
Section 154 of the Criminal Procedure Code, 1973 lays down the procedure for lodging an
FIR-
Written Form
When the information about the commission of a cognizable offence is given orally, the police
must write it down.
Read Over
A person giving the information or making a complaint, can demand that the information
recorded by the police to be read over to him/her.
Verification
One should sign the report only after verifying that the information recorded by the police is
as per the details given by you.
Signature
Once the information has been recorded by the police, it must be signed by the person giving
the information. It is to to kept in mind that people who are unable to read or write are expected
to put their left thumb impression on the document after being satisfied that it is a correct
record.
Copy of FIR
A person filing a FIR has the right of getting a copy of FIR free of cost.
Difference between FIR & police complaint

BASIS FIR POLICE COMPLAINT

It implies to the complaint

Police complaint means an appeal
registered with the police by the
made to the magistrate, which
MEANING plaintiff or any other person
includes an allegation that a crime
having knowledge of the
has taken place.
cognizable offence.

FORMAT There is prescribed format No such prescribed format

MADE TO Police officer Metropolitan magistrate

Recorded only of cognizable Both cognizable and non-

OFFENCE
offences cognizable offences are recorded.

Aggrieved party or the accused, Anyone subject to certain

WHO CAN SUBMIT?
or any such person. exceptions.

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Dr. Absarul Hasan Kidwai
Dept. of Law
AMU
When is FIR Substantive Evidence?
1. As dying declaration- During declaration when a person deposing about the cause of his
death had died.
2. When the injured makes a statement to the SHO saying that accused was injuring him or/and
when the injuries are being caused in the SHO’s presence.
3. When it becomes difficult for the informer who has written the FIR or read it, to recall those
facts but is however, sure that the facts were correctly represented in FIR at the time he wrote
it or read it.
What if Policeman Refuses to record FIR?
1. One can bring the complaint to the notice of the Superintendent of Police or any other
concerned official by meeting them directly.
2. Complaint can be sent in writing through post to the Superintendent of Police concerned. It
is at the option of the officer that if he is satisfied with the complaint, he shall either investigate
the case himself or order an investigation to be made.
3. One has the option to file a private complaint before the court having jurisdiction.
4. One can always approach the State Human Rights Commission or National Human Rights
Commission in case the police acts in a negligent or biased manner.
- ''The Hon'ble Supreme Court further in State of Karnataka vs. Moin Patel and others stated
vis-a-vis the issue of delay in despatch of FIR as below: "The matter can be viewed from
another angle also. It has already been found by us that the prosecution case is that the FIR was
promptly lodged at or about 1.30 AM and that the investigation started on the basis thereof is
wholly reliable and acceptable. Judged in the context of the above facts the mere delay in
despatch of the FIR - and for that matter in receipt thereof by the Magistrate - would not make
the prosecution case suspect for as has been pointed out by a three Judge Bench of this Court
in Pala Singh V. State of Punjab, , the relevant provision contained in Section 157 Cr.P.C.
regarding forthwith dispatch of the report (FIR) is really designed to keep the Magistrate
informed of the investigation of a cognizable offence so as to be able to control the investigation
and if necessary to give proper direction under section 159 Cr.P.C. and therefore if in a given
case it is found that FIR was recorded without delay and the investigation started on that FIR
then however, improper or objectionable the delayed receipt of the report by the Magistrate
concerned, it cannot by itself justify the conclusion that the investigation was tainted and the
prosecution unsupportable". ''... In this view of the matter, simply because the FIR in this case
was received in the court of the Chief Judicial Magistrate with delay it cannot be said that the
FIR in this case is not genuine or that it is tainted or that the prosecution case should be viewed
with suspicion.
- Further, it is to be seen that '' Sending F.I.R to Magistrate 'forthwith' is really designed to keep
the Magistrate informed of the investigation and to control the same or give direction u/sec
159. ''

- Effect of belated F.I.R. when fatal.:'' Now first information report is a report relating to the
commission. of an offence given to the police and recorded by it under s. 154, Cr. P.C. As

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Dr. Absarul Hasan Kidwai
Dept. of Law
AMU
observed by the Privy Council in H.E. v. Khwaja the receipt and recording of information
report by the police is not a condition precedent to the setting in motion of a criminal
investigation. Nor does the statute provide that such information report can only be made by
an eye witness. First information report under s. 154 is not even considered a substantive piece
of evidence. It can only be used to corroborate or contradict the informant's evidence in court.
But this information when recorded is the basis of the case set up by the informant. It is very
useful if recorded before there is time and opportunity to embellish or before the informant's
memory fades. Undue or unreasonable delay in lodging the F.I.R., therefore, inevitably gives
rise to suspicion which puts the court on guard to look for the possible motive and the
explanation for the delay and consider its effect on the trustworthiness or otherwise of the
prosecution version. In our opinion, no duration of time in the abstract can be fixed as
reasonably for giving information of a crime to the police, the question of reasonable time
being a matter for determination by the court in each case. Mere delay in lodging the first
information report with the police is, therefore, not necessarily, as a matter of law, fatal to the
prosecution. The effect of delay in doing so in the light of the plausibility of the explanation
for the coming for such delay accordingly must fall for consideration on all the facts and
circumstances of a given case.''
- '' The Hon'ble Supreme Court in the case of Thulia Kali v. State of Tamil Nadu (Criminal
Appeal No. 165 of 1971 decided on February 25, 1972) stressed the importance of making
prompt report to the police regarding the commission of cognizable offence. It was observed:
"First information report in a criminal case is an extremely vital and valuable piece of evidence
for the purpose of corroborating, the oral evidence adduced at the trial. The importance of 'the
above report can hardly be overestimated from the standpoint of the accused. The object of
insisting upon prompt lodging of the report to the police in respect of commission of an offence
is to obtain early information regarding the circumstances in which the crime was committed,
the names of the actual culprits and the part played by them as well as the names of eye
witnesses present at the scene, of occurrence. Delay in lodging the first information report
quite often results in embellishment which is a creature of afterthought. On account of delay,
the report not only gets bereft of the advantage of spontaneity, danger creeps in of the
introduction of coloured version exaggerated account or concocted story as a result of
deliberation and consultation. It is, therefore, essential that the delay in lodging of the first
information report should be satisfactorily explained."
- Delay in despatch of FIR '' Fabricated and delayed FIR as a matter of fact has been the basic
submission in support of the appeal. it is now, however, well settled and we need not dilate on
this score over again that mere delay cannot be said to be fatal to a criminal prosecution. First
Information Report cannot but be termed to be the starting point and thus sets in motion of a
criminal investigation. In this context the observation of this Court in Apren Joseph alias
Current Kunjukunju & others vs. The State of Kerala seems to be rather apposite. In
paragraph 11 of the report this Court stated as below: ". Now first information report is a report
relating to the commission of an offence given to the police and recorded by it under Section
154, Cr.P.C. As observed by the Privy Council in Emperor v. Khwaja the receipt and recording
of information report by the police is not a condition precedent to the setting in motion of a
criminal investigation. Nor does the statute provide that such information report can only be
made by an eyewitness. First information report under S. 154 is not even considered a
substantive piece of evidence. It can only be used to corroborate or contradict the informant's

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Dr. Absarul Hasan Kidwai
Dept. of Law
AMU
evidence in court. But this information when recorded is the basis of the case set up by the
informant. It is very useful if recorded before there is time and opportunity to embellish or
before the informant's memory fades. Undue or unreasonable delay in lodging the FIR,
therefore, inevitably gives rise to suspicion which puts the court on guard to look for the
possible motive and the explanation for the delay and consider its effect on the trustworthiness
or otherwise of the prosecution version. In our opinion, no duration of time in the abstract can
be fixed as reasonable for giving information of a crime to the police, the question of reasonable
time being a matter for determination by the court in each case. Mere delay in lodging the first
information report with the police is, therefore, not necessarily, as a matter of law, fatal to the
prosecution. The effect of delay in doing so in the light of the plausibility of the explanation
forthcoming for such delay accordingly must fall for consideration on all the facts and
circumstances of a given case."
- Delay in giving information: "First information report in a criminal case is an extremely vital
and valuable piece of evidence for the purpose of corroborating the oral evidence adduced at
the trial. The importance of the report can hardly be overestimated from the standpoint of the
accused. The object of insisting upon prompt lodging of the report to the police in respect of
commission of an offence is to obtain early information regarding the circumstances in which
the crime was committed, the names of the actual culprits and the part played by them as well
as the names of eye witnesses present at the scene of occurrence. Delay in lodging the first
information report quite often results in embellishment which is a creature of afterthought. On
account of delay, the report not only gets bereft of the advantage of spontaneity, danger creeps
in of the introduction of coloured version, exaggerated account or concocted story as a result
of deliberation and consultation. It is therefore, essential that the delay in the lodging of the
first information report should be satisfactorily explained."
- There can be no second FIR: '' In Meharaj Singh, The Hon'ble Supreme Court of India
explained the consequences that may ensue due to delay in dispatching FIR to the Magistrate
in the following words : "..........One of the checks is the receipt of the copy of the FIR, called
a special report in a murder case, by the local Magistrate. If this report is received by the
Magistrate late it can give rise to an inference that the FIR was not lodged at the time it is
alleged to have been recorded, unless, of course the prosecution can offer a satisfactory
explanation for the delay in despatching or receipt of the copy of the FIR by the local
Magistrate. Prosecution has led no evidence at all in this behalf......"

- '' In the case of T.T. Antony, it has been held by The Hon'ble Supreme Court of India that
there can be no second FIR. While dealing with Section 154 and other relevant provisions, this
Court said: " An information given under sub-section (1) of Section 154 Cr.P.C is commonly
known as first information report (FIR) though this term is not used in the Code. It is a very
important document. And as its nickname suggests it is the earliest and the first information of
a cognizable offence recorded by an officer in charge of a police station. It sets the criminal
law in motion and marks the commencement of the investigation which ends up with the
formation of opinion under Section 169 or 170 Cr.P.C, as the case may be, and forwarding of
a police report under Section 173 Cr.P.C.

- In the case of Ramesh Baburao Devaskar, The Hon'ble Supreme Court of India, it was

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Dr. Absarul Hasan Kidwai
Dept. of Law
AMU
observed that " A First Information Report cannot be lodged in a murder case after the inquest
has been held.''
- In Dharma Rama Bhagare v. State of Maharashtra, The Hon'ble Supreme Court of India
held that FIR is never treated as a substantive piece of evidence; it can only be used for
corroborating or contradicting its maker when he appears in Court as a witness.

- In the case of Vikram and Ors. v. State of Maharashtra31, The Hon'ble Supreme Court of
India noticed: "It may be true that P.W. 2 had informed the officer in charge of the Police
Station on telephone, but the circumstances in which the said call had to be made has been
noticed by us hereto before. The Head Constable states that he had written down the same but
then it must have been a cryptic report and only for the purpose of visiting the scene of
occurrence. He as well as the Investigating Officer did not say that it was a detailed report. If,
in the aforementioned premise, another First Information Report which was a detailed one
came to be recorded, no exception can be taken to the same being treated as a First Information
Report."

- FIR is not supposed to an encyclopaedia: The Hon'ble Supreme Court held that ''Though the
FIR is not supposed to an encyclopaedia of the factors concerning the crime, yet there must be
some definite information vis-`- vis the crime.''
- '' F.I.R can come from any quarters, even anonymous sources-- it is not encyclopaedia of
entire prosecution case – It need not give all details ''
- F.I.R. need not contain all details of the occurrence: In the case of ''State of Haryana Vs.
Sher Singh & Ors., Supreme Court of India held that ''The fact that P.W. 3 did not mention in
the F.I.R. that she had informed some persons of the village before the lodging of the F.I.R.
and that for this reason her statement could not be relied on is not correct. The F.I.R. need not
contain all details of the occurrence nor does the omission to mention the name of persons
whom she informed in the village detract from the credibility of the report. The omission is a
mere omission of details and not a contradiction.''
- ''F.I.R not intended to be a very detailed document . It is meant to give only the substantive
of the allegations made.''
- Omission of details in First and Inquest Report-Effect of-: In the case of Pedda Narayana &
Ors. Vs. State of Andhra Pradesh; The Hon'ble Supreme Court of India held that ''the High
Court rightly believed the evidence of the prosecution witnesses and there was no error in its
approach to the case. (1) The witness who gave the first information must have been extremely
perturbed having seen the attack on his companion. Even so, all the essential details which a
first information should contain are there. The names of the accused and the circumstances of
the murderous assault are mentioned. Shorn of minute detail the broad picture presented by the
prosecution was mentioned in the first information which was lodged soon after the occurrence.
it is neither customary nor necessary to mention every minute detail in the first information.''
(See also 1976 Crl.L.J 1921; 1975 Crl.L.J 870 (SC); 1982 Crl.L.J 173; 1978 Crl.L.J 9 (NOC);
AIR 1981 SC 631).
- ''Omission of details in FIR do not affect prosecution case''

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Dr. Absarul Hasan Kidwai
Dept. of Law
AMU
- Names of culprits in F.I.R: It was observed by the Hon'ble Supreme Court of India in the case
of ''State of Maharashtra & Anr Vs Mohd. Sajid Husain Mohd. S. Husain etc'' that ''... Once a
criminal case is set in motion by lodging an information in regard to the commission of the
offence in terms of Section 154 Cr. PC, it may not always be held to be imperative that all the
accused persons must be named in the First Information Report.''
- The Hon'ble Supreme Court held that ''Name of accused absent in F.I.R. Evidence of reliable
eye witnesses giving name of accused cannot be rejected.''
- In Emperor vs. Khwaja Nazir Ahmad [AIR (32) 1945 PC 18], the Privy Council spelt out
the power of the investigation of the police, as follows : "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, as their
Lordships think, 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."
- This plenary power of the police to investigate a cognizable offence is, however, not
unlimited. It is subject to certain well recognised limitation. One of them, is pointed out by the
Privy Council, thus : "if no cognizable offence is disclosed, and still more if no offence of any
kind is disclosed, the police would have no authority to undertake an investigation."

- In Narang’s' case, it was, however, observed that it would be appropriate to conduct further
investigation with the permission of the Court. However, the sweeping power of investigation
does not warrant subjecting a citizen each time to fresh investigation by the police in respect
of the same incident, giving rise to one or more cognizable offences, consequent upon filing of
successive FIRs whether before or after filing the final report under Section 173(2) Cr.P.C. It
would clearly be beyond the purview of Sections 154 and 156 Cr.P.C. nay, a case of abuse of
the statutory power of investigation in a given case.
- The Hon'ble Supreme Court in the said judgment (a Registered Society v. Union of India &
Ors. [1999 (6) SCC 667].) at paragraph 174 of the report has held thus:" The other direction,
namely, the direction to CBI to investigate "any other offence" is wholly erroneous and cannot
be sustained. Obviously, direction for investigation can be given only if an offence is, prima
facie, found to have been committed or a person's involvement is prima facie established, but
a direction to CBI to investigate whether any person has committed an offence or not cannot
be legally given. Such a direction would be contrary to the concept and philosophy of "LIFE"
and "LIBERTY" guaranteed to a person under Article 21 of the Constitution. This direction is
in complete negation of various decisions of this Court in which the concept of "LIFE" has
been explained in a manner which has infused "LIFE" into the letters of Article 21. "

- '' Ravinder Kumar v. State of Punjab (SC) 2001 Crl.L.J.4242, relevant paragraphs of which
read as under: " When there is criticism of the ground that FIR in a case was delayed the Court
has to look at the reason why there was such a delay. There can be a variety of genuine causes
for FIR lodgement to get delayed. Rural people might be ignorant of the need for informing
the police of a crime without any lapse of time. This kind of converseness is not too uncommon
among urban people also. They might not immediately think of going to the police station.
Another possibility is due to lack of adequate transport facilities for the informers to reach the
police station. The third, which is a quite common bearing, is that the kith and kin of deceased

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Dr. Absarul Hasan Kidwai
Dept. of Law
AMU
might take some appreciable time to regain a certain level of tranquillity of mind or sedateness
of temper for moving to the police station for the purpose of furnishing the requisite
information. Yet another cause is, the persons who are supposed to give such information
themselves could be physically impaired that the police had to reach them on getting some
nebulous information about the incident.''
- HELD: We are not providing an exhausting catalogue of instances which could cause delay
in lodging the FIR. Our effort is to try to point out the stale demand made in the criminal courts
to treat the FIR vitiated merely on the ground of Crl. Appeal No.335-DB of 2005 -12- delay in
its lodgement cannot be approved as a legal corollary. In any case, where there is delay in
making the FIR the court is to look at the causes are not attributable to any effort to concoct a
version no consequence shall be attached to the mere delay in lodging the FIR. Vide Zahoor v.
State of U.P. 1991 Supl. (1) SCC 372; Tara Singh v. State of Punjab 1991 Suppl. (1) SCC 536;
Jamna v. State of U.P. 1994 (1) SCC.
- In Tara Singh (supra) made the following observations: `It is well settled that the delay in
giving the FIR by itself cannot be ground to doubt the prosecution case.''

- In Ram Kumar Pande vs The State of Madhya Pradesh; HELD : '' The First Information
Report is a previous statement which, strictly speaking, can be only used to corroborate or
contradict the maker of it.''
- In Malkiat Singh vs State of Punjab And Ors; HELD: 1. The First Information Report is
not substantive evidence. It can be used only to contradict the maker thereof or for
corroborating his evidence and also to show that the implication of the accused was not an
after- thought. 2. Since the examination of first information was dispensed with by consent
F.I.R. became part of the prosecution evidence. ...''
- In Ram Jag And Others vs The State of U.P.; HELD : It is true that witnesses cannot be
called upon to explain every hour's delay and a common sense view has to be taken in
ascertaining whether the First Information Report was, lodged after an undue delay so as to
afford enough scope for manipulating evidence. Whether the delay is so long as to throw a
cloud of suspicion on the seeds of the prosecution must depend upon a variety of factors which
would vary from case to case. Even a long delay in filing report of an occurrence can be
condoned if the witnesses on whose evidence the prosecution relies have no motive for
implicating the accused. On the other hand, prompt filing of the report is not an unmistakable
guarantee of the truthfulness of the version of the prosecution.
- In Sarwan Singh And Ors. vs State of Punjab; IT WAS OBSERVED: it is well settled that
mere delay in despatch of the F.I.R. is not a circumstance which can throw out the prosecution
case in its entirety. The matter was considered by this Court in P[sic]a Singh v. State of Punjab
where this Court observed as follows: But when we find in this case that the F.I.R. was actually
recorded without delay and the investigation started on the basis of that F. I. R and there is no
other infirmity brought to our notice, then, however improper or objectionable the delayed
receipt of the report by the Magistrate concerned it cannot by itself justify the conclusion that
the investigation was tainted and the prosecution insupportable.

SFA
Dr. Absarul Hasan Kidwai
Dept. of Law
AMU
- HELD: '' General diary entry is not first information report. Entry not to be signed by the
person giving the information, but the first information report has to be signed by the person
giving it.''
- Telephone call being too cryptic could not constitute the FIR. Further, it was held that
''Telephonic message cane be F.I.R.''
- First information Report is not a substantive or a primary piece of evidence of the truth of its
contents.

- Yet, it was held in the case AIR 1953 Madh 249, where the first information report is also a
dying declaration it can be used as substantive or primary evidence as a dying declaration.

- F.I.R can be tendered in evidence under chapter II of Evidence Act, such as dying declaration
u/sec 32 (1) or as part of informant's conduct u/s 8. It can ordinarily be used only for the purpose
of corroborating, contradicting or discrediting u/ss 157,145, and 155 of Evidence Act, its author
if examined and not any other witness.
- F.I.R when not hit by sec 25 of Evidence Act and u/s 162 of Cr.P.C, it is admissible in
evidence, as conduct of the maker u/s 8 of Evidence Act.
- Facts in F.I.R not read over to informant- not a serious infirmity when the informant himself
deposed in the case and proved the F.I.R.
- ''Police duty bound to lodge F.I.R and investigation into cognizable offence- Recording of
F.I.R is mandatory.''
- HELD: ''F.I.R may hearsay. It need not necessarily be given by a person having the first-hand
knowledge of facts''
- SOME RELEVANT CASE -LAW AS TO ''Delay by itself cannot be held for rejecting
evidence which is otherwise credit worthy : AIR 1976 SC 2455; AIR 1972 SC 2679; AIR 1974
SC 606; AIR 1973 SC SC 1; AIR 1974 SC 2118; 1982 Crl .L.J 36; AIR 1983 SC 810; AIR
1972 SC 2679.
Section 155, Information as to non- cognizable cases and investigation of such cases:
(1) When information is given to an officer in charge of a police station of the commission
within the limits of such station of a non- cognizable offence, he shall enter or cause to be
entered the substance of the information in a book to be kept by such officer in such form as
the State Government may prescribe in this behalf, and refer the informant to the Magistrate.
(2) No police officer shall investigate a non- cognizable case without the order of a Magistrate
having power to try such case or commit the case for trial.
(3) Any police officer receiving such order may exercise the same powers in respect of the
investigation (except the power to arrest without warrant) as an officer in charge of a police
station may exercise in a cognizable case.
(4) Where a case relates to two or more offences of which at least one is cognizable, the case
shall be deemed to be a cognizable case, notwithstanding that the other offences are non-
cognizable.

SFA
Dr. Absarul Hasan Kidwai
Dept. of Law
AMU
Section 155 of the Code of Criminal Procedure deals with information relating to non-
cognizable cases, and it is provided that when information is given to an Officer-in-charge of
a Police Station about the commission of a non-cognizable offence, he must enter the substance
of the information in a book to be kept in the prescribed form, and refer the informant to the
Magistrate.
It is important to note that no Police Officer can investigate a non- cognizable case without the
order of a Magistrate. If the Police Officer receives the Magistrate’s order, he can exercise the
same powers of investigation as he can exercise in the case of a cognizable offence.
Moreover, if one case relates to two or more offences, of which at least one is cognizable, the
case is to be deemed to be a cognizable case, despite the fact that the other offences are non-
cognizable.
The Supreme Court has held that whilst investigating a cognizable offence and presenting a
charge-sheet for it, the Police are not debarred from investigating any non-cognizable offence
arising out of the same facts, and including them in their final report. (Pravin Chandra, —
A.I.R. 1985 S.C. 1185)
As far as cognizable offences are concerned, any Officer-in-charge of a Police Station is
empowered, without any order of the Magistrate, to investigate any cognizable case, which a
Court having jurisdiction over that local area would have power to inquire into.
In such cases, the Police Officer must also send a Report of his investigation to a Magistrate
and also himself proceed, or depute one of this Subordinate Officers to proceed, to the spot, to
investigate the facts and circumstances, and if necessary, to take steps for the discovery and
arrest of the offender. If, however, no sufficient ground for making an investigation exists, the
Officer-in-charge of the Police Station need not investigate the case.
The Supreme Court has held that the duty of the investigating Officer is not merely to bolster
up a prosecution case with such evidence as may enable the Court to record a conviction, but
to bring out the real unvarnished truth. (Jamuna, —A.I.R. 1974 S.C. 1822)
It has also been held that an investigation by the Head Constable, who was the person to whom
the offer of bribe was alleged to have been made, and who lodged the F.I.R. against the accused,
is not proper. (Bhagwan Singh, — 1975 S.C.C. 737)
On receiving the report, as stated above, the Magistrate can direct an investigation into the case,
or alternatively proceed to hold a preliminary inquiry into the case or depute any Subordinate
Magistrate to do so.
Section 156 of CRPC "Police officers power to investigate cognizable case"
(1) Any officer in charge of a police station may, without the order of a Magistrate, investigate
any cognizable case which a Court having jurisdiction over the local area within the limits of
such station would have power to inquire into or try under the provisions of Chapter XIII.

(2) No proceeding of a police officer in any such case shall at any stage be called in question
on the ground that the case was one which such officer was not empowered under this section
to investigate.

SFA
Dr. Absarul Hasan Kidwai
Dept. of Law
AMU
(3) Any Magistrate empowered under section 190 may order such an investigation as above-
mentioned.
According to Section 156 of the Code of Criminal Procedure, the police have unfettered powers
to investigate into a cognizable offence. The term cognizable offence is any act or omission
committed by a person under any law in force which is punishable and is considered to be a
crime. The police have the authority to arrest any person who has committed a cognizable
offence.
Procedure for investigating a cognizable offence
Section 156 of the Code of Criminal Procedure lays down that the officer in charge of the police
may, without the prior permission of the Magistrate start the process of investigation in cases
involving cognizable offences. In a case where the police suspect the happening of a cognizable
offence, it can start an investigation even without FIR. Police have the statutory right to
investigate and it cannot be taken away from it by the judiciary. The action of the courts begins
only after the charge sheet has been preferred by the police and not prior to it.
In State of UP v. RK Srivastava, it was held that if the FIR does not point out to a cognizable
offence or the proceedings have been initiated by the police with mala fide intention then the
police has no authority to investigate in such a case and the High Court can stop and quash
such an unjustified investigation carried on by the police.
In Indrajit Mukherjee v. State, the court held that the Magistrate does not have the authority to
direct the investigating agencies the manner in which the investigation has to be carried on.
Section 156(2) of the Code of Criminal Procedure provides that no investigation proceedings
carried out by the police shall be called to question on the ground that the case was the one in
which the investigating officers do not possess the authority to deal with. Thus, any subsequent
irregularity which is discovered at a later stage cannot be the reason to vitiate the proceedings
or the trial.
In State of UP v. Hari Mohan, the court held that a trial cannot be invalidated on the sole ground
of the irregularity of the investigation conducted by the police until and unless such irregularity
results into the grave miscarriage of justice.
Police officers’ power to investigate cognizable case:
This section authorises an officer-in-charge of a police station to make an investigation in any
cognizable offence without the necessity of an order of a Magistrate and it is the duty of the
investigating officer to bring out real unvarnished truth before the Court.
The Supreme Court in S.N. Sharma v. Bipin Kumar, observed that the power of the police to
investigate any cognizable offence is uncontrolled by the Magistrate, and it is only in cases
where the police decide not to investigate the case, that the Magistrate can intervene and either
direct an investigation, or in the alternative, himself proceed or depute a Magistrate subordinate
to him to proceed to enquire into the case.
Where, however, allegations are made against the police personnel, the interest of justice would
be better served if the case is registered and then transferred tor investigation by an independent
agency like cm. But it is mandatory for the police officer to register, the case disclosing
cognizable offence.

SFA
Dr. Absarul Hasan Kidwai
Dept. of Law
AMU
The police have the statutory right to investigate into the circumstances of any alleged
cognizable offence without order or authority from a Magistrate.
The Supreme Court in SI tariff Ahmed and others v. State (NCT of Delhi), held that the Court
cannot direct an investigating agency to focus on particular offence and investigate
accordingly. There should be no judicial interference of the Magistrate in the investigation of
a cognizable offence by the police investigating authorities.
In the instant case, the Metropolitan Magistrate, Patiala House directed the investigating officer
to add Section 307 in the present case and investigate the case accordingly. The High Court
upheld the course adopted by the Metropolitan Magistrate to be permissible in law.
But the appellant challenged the legality of the High Court’s verdict on the ground that it was
contrary to the law settled by Supreme Court in a series of cases. Allowing the appeal, the
Supreme Court held that the view of the High Court is clearly unsustainable and has to be set
aside.
The Apex Court relied upon the ruling of the Privy Council in King Emperor v. Kliawja Nazar
Ahmad, which reads thus:
“In India, 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 each should be left to its own
function………….”
In State of Bihar and another v. J AC Saldhana and others the Supreme Court reiterated that
there is a clear cut and well demarcated sphere of activity in the field of crime detection and
crime punishment.
Investigation of an offence is the field exclusively reserved by the executive, the police
department, the superintendence over which vests in the State Government. Once the
investigation is completed and the report is submitted to the Court to take cognizance of the
offence under Section 190 of Cr. P. C., its duty comes to an end and the adjudicatory function
of the judiciary begins.
Where there is failure on the part of Police to investigate, the complainant could lay a complaint
before Magistrate but a writ by the complainant for direction to CBI to investigate would not
be tenable.
Any irregularity or defect or illegality in investigation, however serious, would have no direct
bearing on the competence or procedure relating to cognizance or trial. Any violation of the
provisions contained in sub-section (1) is curable under sub-section (2) But an investigation by
complainant police officer is bound to reflect on the credibility of the prosecution case.
Thus, in State of Rajasthan v. Kishore, in a wife-burning case, the investigating officer
committed grave irregularity in omitting to send burnt clothes for chemical examination. The
Supreme Court held that the mere fact that the investigating officer committed illegality or
irregularity, does not cast doubt on prosecution case nor the trustworthiness of reliable evidence
could be doubted to record acquittal on that count.

SFA
Dr. Absarul Hasan Kidwai
Dept. of Law
AMU
The Supreme Court in Rotash v. State of Rajasthan has reiterated that where the investigation
was not fool-proof and suffered from certain defects, such a defective investigation would not
lead to total rejection of the prosecution case.
In Ganesh Das v. State of Kerala, the Magistrate directed the police for registration of FIR and
investigation in a complaint case under Sections 498A/406/ 506, IPC. It was held that the
Magistrate while directing investigation under Section 156(3) is not empowered to direct
registration of FIR as it was the function of the police officer.
In Baldeo P. Ganeriwal v. State of Gujarat, a prima facie case for the offence of criminal breach
of trust and misappropriation of property was made out against the accused persons. Earlier
enquiry was made in respect of the same complaint without registering F.I.R. The Court held
that it did not operate as a bar for lodging complaint before the Court or its further investigation
under Section 156 (3) of the Code.
In the case of Arup Kumar Ghosh v. State of West Bengal, it was alleged by the petitioner that
financiers have taken forcible possession of vehicle from him engaging antisocial elements and
police was not taking any action against them despite complaint by him.
The police version was that the allegation made by the petitioner did not make out any case of
commission of cognizable offence so they did not make any investigation. The High Court of
Calcutta held that in such a situation remedy after petitioner was to make complaint before
Court of competent Judicial Magistrate and not to approach the High Court through a writ
petition. Dismissing the petition, the Court ruled that the function of Judicial Magistrate could
not be discharged by a Writ Court in such cases.
In a case, the petitioner who was an accused in some other case was attacked by unknown
persons while he was being carried away in police van. Police had lodged F.I.R. against
unknown persons.
The petitioner was injured in the said incident. Therefore, application of petitioner for
registration of a case under Section 156 (3) against persons named therein was maintainable.
Merely because the police had lodged F.I.R. against some unknown persons, it could not be
said that subsequent application for filing F.I.R. moved by the petitioner under Section 156 (3)
naming accused person was not maintainable. Therefore, order rejecting petitioner’s
application was liable to be set aside.
The Calcutta High Court in Zahir Ahmad v. Azhar Khan, expressed a view that selling of goods
with false trademarks affixed thereon are not cognizable offences under Sections 78 and 79 of
the Trades Merchandise Marks Act, 1958 and therefore, police could not be directed to
investigate such offences under Section 156(3) of the Code.
Similarly, in case of offences under the Narcotic Drugs and Psychotropic Substances Act, 1985,
the investigation has .to be done in accordance with the special procedure laid down in that
Act, hence the police has no power to embark upon a separate investigation in such cases under
Section 156 (3) Cr.PC.
In the case of CBI v. Rajesli Gandhi, the Supreme Court has ruled that the decision to
investigate or the decision on the agency which should investigate, does not attract principles
of natural justice, hence the accused cannot have a say as to who should investigate the offences
which he is charged with.

SFA
Dr. Absarul Hasan Kidwai
Dept. of Law
AMU
Taking a similar stand, the Allahabad High Court in Atique Ahmad v. State of U.P., held a
view that so far question of transfer of investigation to an independent agency such as CBI is
concerned, normally the investigation should be done by the local state police. The mere
allegation that local police would not investigate the case properly does not entitle the accused
to pray for handing over the investigation to some other agency.
The Court in this case further held that when police investigation violates rights of petitioner,
a political leader under Articles 14, 19 and 21 of the Constitution, then a judicial review under
Article 226 is permissible.
The Madras High Court in deciding the validity of petition for investigation under Section 156
(3) has held that the practice of Courts to order investigation under this section without looking
into the allegations made in the complaint in order to ascertain whether is required investigation
at all, was not proper.
Hence mere allegations without any material will not be a sufficient justification to order
investigation under sub-section (3) of Section 156. In the instant case, a petition was filed
against the Mayor of city alleging that he had amassed wealth disproportionate to known source
of his income but no material was given by the petitioner except making reference to two
properties. The Court held that the order accepting preliminary enquiry report that no case was
made out against the city Mayor was proper.
Where the complaint alleged forgery and cheating in preparation of a Will, only vague
allegations were made without giving details of alleged offences and the criminal prosecution
was initiated by the complainant with the oblique motive to cause harassment in view of civil
suit filed against him, there was no justification for Magistrate to order investigation of
cognizable case and hence the rejection of application under Section 156 (3) was held to be
proper.
Where the petitioner’s complaint alleged exercise of investigative power by CBI officers in
mala fide manner and sought investigation by high ranking officers and there were repeated
petitions by the petitioner by way of pressure tactics to pressurize the investigating agency, the
High Court directed that investigation against petitioner be completed in accordance with law
within two months from the date of receipt of the order.
The Supreme Court in Sikari Vasu v. Stale of Uttar Pradesh reiterated that the Magistrate has
a role in the investigation of offences under the Code of Criminal Procedure. Analysing the
powers conferred under Section 156 (3), the Court pointed out, “if the Magistrate on application
under Section 156 (3) Cr. P.C. is satisfied that proper investigation has not been done or is not
being done by the officers-in-charge of the concerned Police Station, he can certainly direct
him to make a proper investigation and can further monitor the same, though he should not
himself investigate.”
The Court also made it clear that parties should not be encouraged to seek remedy under writ
jurisdiction or under Section 482, Cr. P.C. in matters connected with registration of F.I.R. and
investigation. The High Court should also not encourage this practice and should ordinarily
refuse to interfere in such matters and relegate the petitioner to seek remedy first under Section
154 (3) and Section 36 of Cr. P.C. before the concerned police officers, and if that is of no
avail, by approaching the concerned Magistrate under Section 156 (3) Cr. P.C.

SFA
Dr. Absarul Hasan Kidwai
Dept. of Law
AMU
The Supreme Court in Mohd. Yusuf v. Afaq Jalian, held that any Judicial Magistrate, before
taking cognizance of the offence, can order investigation under Section 156 (3), Cr. P.C. If he
does so, he is not to examine the complainant on oath because he was not taking cognizance of
any offence therein.
For the purpose of enabling police to start investigation it is open to the Magistrate to direct
the police to register an F.I.R. There is nothing illegal in doing so. After all registration of an
F.I.R. involves only the process of entering the substance of the information relating to
commission of the cognizable offence in a book kept by the officer-in-charge of the police
station as indicated in Section 154 of the Code.
Even if Magistrate does not say in so many words while directing investigation under Section
156 (3) that an F.I.R. should be registered, it is the duty of the officer-in-charge of the police
station to register the F.I.R. regarding the cognizable offence disclosed by the complainant
because that police officer could take further steps contemplated in Chapter XII of the Cr. P.C.
only thereafter.
The High Court of Allahabad in Rajeev Kumar v. State of U.P. held that there could not be two
F.I.Rs. against the same accused in respect of the same case. But when there are rival versions
in respect of the same case, it would normally take shape of two different F.I.R’s. In the instant
case, there were two cross-cases.
The cross-version was only an improvement of earlier version given in previous F.I.R.
Registration of cross- case on basis of application under Section 156 (3) was held to be
improper. The Court held that if the applicant wanted to add something by way of giving
additional facts of the incident and felt that something was lacking in the previous F.I.R., it was
open for him to say so in his statement before the police during the course of investigation. But
it will not entitle him to register a second F.I.R. regarding the same incident implicating the
same accused again.
A complaint disclosing a cognizable offence may be such that it may require a thorough
investigation by the police and it is for this reason that power is given to the Magistrate under
Section 156(3) to send the complaint to the police for investigation.
But a Magistrate can order investigation under this section only at the pre-cognizance stage.
Before a Magistrate directs investigation under Section 156(3), he has to make sure that an
inquiry into the case by himself might not be sufficient and therefore investigation by police is
needed in the case. He is expected to record reasons for his decision.
The power conferred by Section 156(3) to the Magistrate may be exercised by him even after
the submission of a report by the investigating officer if he deems further investigation
necessary in the case. But a Magistrate having once taken cognizance of a matter cannot send
the case for police investigation under this section.
For the purpose of the Code of Criminal Procedure, the term ‘Investigation’ generally means
and includes—(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 commission of crime such as examination of various persons, search of places, seizure of
things to be placed in evidence before a Magistrate during trial and (5) necessary steps for
initiating trial by filing of a charge-sheet under Section 173 etc.

SFA
Dr. Absarul Hasan Kidwai
Dept. of Law
AMU
The Supreme Court in Rasiklal Dalpatram Thakkar v. State of Gujarat,” held that in case of
investigation on direction of the Magistrate, the investigating agency should not refrain from
conducting the investigation on ground that it had no jurisdiction to investigate the offence.
Section 157 of CRPC "Procedure for investigation": (1) 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 section 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 in person, or shall depute one of his subordinate officers not being
below such rank as the State Government may, by general or special order, prescribe in this
behalf, 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:
Provided that-
(a) when information as to the commission of any such offence is given against any person by
name and the case is not of a serious nature, the officer in charge of a police station need not
proceed in person or depute a subordinate officer to make an investigation on the spot;

(b) 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.
(2) In each of the cases mentioned in clauses (a) and (b) of the proviso to sub-section (1), the
officer in charge of the police station shall state in his report his reasons for not fully complying
with the requirements of that sub-section, and, in the case mentioned in clause (b) of the said
proviso, the officer shall also forthwith notify to the informant, if any, in such manner as may
be prescribed by the State Government, the fact that he will not investigate the case or cause it
to be investigated.
Section 157 of the Code establishes the procedure to be followed for investigation. The section
requires that immediate intimation of every complaint or information referred to an officer in
charge of a police station of the commission of a cognizable offence shall be sent to the
Magistrate having jurisdiction. A police officer as soon as he receives information or has
reasons to suspect the commission of any cognizable offence is required to report the
Magistrate who has the jurisdiction to try such cases. The Magistrate is empowered to take the
cognizance of such offence and order to any subordinate officer to investigate the spot, facts
and circumstances of the case and take necessary measures for the discovery and the arrest of
the accused. The report is sent to the Magistrate as to keep him abreast of the investigation so
he may give appropriate directions. Section 157 requires a police officer to ‘forthwith a report’
which signifies that the report has to be sent without any unreasonable delay. Delay does not
render the case doubtful but would put the Court on guard.
This section initiates the investigation. The investigation includes all proceedings under the
Code for the collection of evidence conducted by a police officer or by any person other than
a Magistrate, who is authorized by the Magistrate in this behalf. In Kari Chaudhary v. Sita
Devi, it was held that the object of investigation is to find out whether the alleged offence has
in fact been committed, and, if so, who have committed them. However, where there is the
commission of any offence which is not of serious nature there is no need to proceed with the
investigation on the spot. Also, where it appears to the police officer that there no sufficient

SFA
Dr. Absarul Hasan Kidwai
Dept. of Law
AMU
reason for the investigation, he shall not proceed with it. All such information is required to be
mentioned by the police officer furnishing the report that he will not conduct any investigation.
Further, in case of rape offence, the recording of the statement of the victim shall be recorded
by a woman police officer. All such statements shall be recorded at the residence of the victim
or the place of her choice and in the presence of his parents or guardian or near relatives or
social worker.
(b) Statement of Witness & Investigation (SS. 160-166)
Section 160 Power to require attendance of witness:
Section 160 of the Code of Criminal Procedure provides that any police officer making an
investigation under this Chapter may, by order in writing, require the attendance before himself
of any person being within the limits of his own or any adjoining station who, from the
information given, or otherwise, appears to be acquainted with the facts and circumstances of
the case, and such person shall attend as so required.
However, no male person under the age of fifteen years or women shall be required to attend
at any place other than the place in which such male person or woman resides. The State
Government may, by rules made in this behalf, provide for the payment by the police officer
of the reasonable expenses of every person attending at any place other than his residence.
The attendance of persons who would supply the necessary information in respect of the
commission of an offence under investigation. The words ‘any person’ in Section 160 of the
Code include a person who may become the accused.
The order to attend before the police officer must be in writing. The person is within the limits
of the police station of the investigating police officer or is within the limits of any adjoining
police station.
If a person fails to attend before a police officer making an investigation, he is liable to
punishment under Section 174 of the Indian Penal Code. Mere refusal to accept a notice issued
under this Section does not constitute an offence under Section 173 of the Indian Penal Code.
A person on whom the police officer by order requires his attendance is bound to attend.
However, the investigating officer has no authority to use force for compelling attendance of
such a person; nor does the officer has any power to arrest or detain such a person. A Magistrate
also has no power to issue any process compelling a person to attend before a police officer.
Section 161, Examination of witnesses by police:
This section empowers the police to examine witnesses during the course of an investigation.
Any person who is supposed to be acquainted with the facts and circumstances of the case may
be examined orally.
The police are supposed to record the oral statements of witnesses which may subsequently be
used as evidence in course of trial of the case. The statements so recorded by police officers
and the documents filed in support of them are public documents that can be obtained from
them by the citizens. Before trial, the copies of such statements are to be furnished to the
accused, free of cost.

SFA
Dr. Absarul Hasan Kidwai
Dept. of Law
AMU
The words “any person” used in Section 161 (1) also include a person who may be accused of
the crime and suspects.
Inordinate delay on the part of the investigating officers in recording statements of witnesses
including the accused and the suspects may throw doubt on the veracity of the prosecution case.
The Magistrate should ask the investigating officer to explain the reason for delay in recording
of statements of witnesses etc. and if the delay is properly explained, it will have no adverse
effect on the probative value of the witness concerned.
In a case which is exclusively triable by the Court of Session, the Magistrate need not record
the statements of the witnesses under this section.
Sub-section (2) makes it obligatory for a person who is examined by police in course of
investigation, to answer all questions put to him truly other than questions the answers to which
are likely to incriminate him or expose him to a criminal charge.
A person who gives false information or deliberately gives untrue answers is liable to be
punished under Sections 202 and 203 of the Indian Penal Code.
The statements of witnesses under Section 161 should be recorded in the first person, and they
should not be in indirect form of speech. No oath or affirmation is – required in an examination
of witnesses under this section. It is not mandatory for the investigating officer to reduce in
writing the statement of the person examined. But the statement, if recorded, must be recorded
as it was actually made. As sub-section (3) prohibits making of precis of a statement recorded
under Section 161 of the Code.
The Supreme Court in State of NCT of Delhi v. Ravikant Sharma explained the privilege in
respect of statement of witnesses recorded under Section 161 during investigation and held that
any direction to supply “gist” of such statements was unsustainable because such statement of
witnesses recorded during investigation does not include interpretation of Investigation
Officer.
Section 162, Use of Statements and Confessions before a Police Officer:
Section 162 of the Code of Criminal Procedure lays down the salutary rule that no statement
made by any person to a Police Officer in the course of an investigation under this Chapter
shall, if reduced to writing, be signed by the person making it, nor shall any statement or any
record thereof, whether in a police diary or otherwise be used, in whole or in part, for any
purpose, at any inquiry or trial in respect of the offence under investigations, except as stated
below.
The only use that can be made of such a statement is that if any witness is called for the
prosecution in such an inquiry or trial, any part of his statement, if duly proved, may be used
by the accused, and with the permission of the Court, also by Prosecution, to contradict such
witness as provided by S. 145 of the Indian Evidence Act.
In a case decided by the Karnataka High Court, a statement was recorded when the Police
Officer had gone out to investigate the cause of some commotion outside and to take suitable
steps. It was held that the statement was not hit by S. 162, as it was not recorded during the
course of the investigation. (M.P. Jairaj and others v. State of Karnataka, 1980 Cri. L.J. NOC
13)

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Dr. Absarul Hasan Kidwai
Dept. of Law
AMU
It is well-known that Police Officers do not take down statements made to them verbatim. This
often results in a record containing what the Police Officer wishes the witness to say, and not
what the witness actually stated. The object underlying S. 162 is thus wholesome, namely to
protect the accused both against over-zealous Police Officers and untruthful witnesses.
S. 162 strikes an equitable via media. On the one hand, it enacts an absolute bar against
statements made before a Police Officer being used for any purpose whatsoever, and on the
other, it enables the accused to rely on it for the limited purpose of contradicting a witness in
the manner provided in S. 145 of the Indian Evidence Act, by drawing his attention to parts of
the statement intended for contradiction.
Such a statement cannot be used for corroboration of a prosecution or a defence witness. Nor
can it be used for contradicting a defence or a court witness. In other words, there is a general
bar against its use being made, subject to a limited exception (as above), which is in the interests
of the accused. This being so, it is clear that the exception cannot override the general rule
itself.
The Calcutta High Court has held that pointing out by finger, or a nod of assent in answer to a
question, is as much a verbal statement as a statement by word of mouth. S. 162 does not limit
itself to a statement of any particular kind. It covers all types of statements made to a Police
Officer in the course of investigation. (Khabiruddin, —48 C.W.N. 356)
It has been held that any identification of stolen property in the presence of a Police Officer
during an investigation is a statement made to a Police Officer during investigation, and hence,
covered by S. 162. Evidence of such identification is, therefore, inadmissible, and the witness
should not be allowed to depose to the fact that they had identified the stolen property in the
presence of Police Officer. It is immaterial in such a case, whether the identification was at the
Police Station or at some other place. (Khabiruddin, — 48 C.W.N. 356)
In one case where a Police Officer was in the inner room in which a tape-recorder was kept,
and the mike was kept concealed in the outer room where the accused was having a
conversation without knowing about the tape-recorder, it was held that the conversation was
not hit by S. 162. [Yusufalli E. Nagree, —1967 3 S.C.R. 720)
In a case decided by the Supreme Court, the statement furnishing detailed particulars of the
accused was recorded at the Police Station, long after the investigation had commenced, on
receipt of telephonic information about the crime. In the circumstances, it was held that the
statement was not a F.I.R., but one recorded during investigation. (Somappa Vamanappa Madar
v. State of Mysore, — (1980) 1 S.S.C. 479)
Thus, it will be seen that S. 162 can be used for a three-fold purpose, viz., —
(i) It may be used by the defence for contradicting the prosecution witness.
(ii) It may be used by the prosecution for contradicting the prosecution witness with the
permission of the Court.
(iii) The witness whose statement is so used may be re-examined by way of an explanation, if
necessary.
It is also to be noted that this section makes a reference to S. 145 of the Indian Evidence Act.
Therefore, the provisions of that section have to be strictly complied with. The proper

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Dr. Absarul Hasan Kidwai
Dept. of Law
AMU
procedure would be to ask the witness whether he made that particular statement before the
Police Officer.
If the witness answers in the affirmative, the previous statement need not be proved. If,
however, the witness answers in the negative, or states that he does not remember having made
any such statement, the person cross-examining must read out to the witness, the relevant
portion in the record which is alleged to be contradictory to his statement in the Court, and give
him an opportunity to reconcile the two, if he can. It is only after this is done, that the record
of the previous statement becomes admissible in evidence for the purpose of contradicting the
witness and can be proved in any manner permitted by law.
Section 163, "No inducement to be offered":
S. 163 lays down that no Police Officer or any authority, can offer or make, or cause to be
offered or made, any inducement, threat or promise as is referred to in S. 124 of the Indian
Evidence Act. Similarly, no Police Officer or other person can prevent any person from making
any statement which such person wishes to make of his own free will.
Thus, all oppression and trickery in regard to obtaining confessions are to be avoided by the
Police, under pain of severe penalties, and the practice of employing private individuals to
extract confessions from accused persons is equally prohibited.
In one case, a ziladar took the accused, a boy of 16, to the Police and told him: “You are a
minor; you will be let off, if you tell the truth before the Police, just as you have done in our
presence”. Thereupon, the Magistrate, before recording his confession, told him that he was
not to allow any inducement to operate upon the mind in making the confession. It was held
that such inducement would operate to defeat the confession made under S. 164, as it was not
likely that the effect of the inducement had thereby been fully removed. (Faiz Ahmed, —38
Cr. L.J. 27)
The following have been held to be cases of inducements and threats:
(a) “I will get you released, if you speak the truth.”
(b) “You had better pay the money than go to jail, and it would be better for you to tell the
truth.”
(c) “If you confess the truth, nothing will happen to you.”
(d) “If you speak the truth, we will speak to the constable and arrange.”
(e) “Tell me what you know about it; if you will not, I can do nothing for you, and I will send
for the constable.”
On the other hand, it has been held that the following are only words of caution, and therefore
do not amount to inducements or threats:
(i) “I know the whole thing.”
(ii) “Take care, we know more than what you think we know.”
(iii) Exhortation to speak the truth.

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Dr. Absarul Hasan Kidwai
Dept. of Law
AMU
Section 164. Recording of confessions and statements:
Statements recorded by Magistrate under CrPC
Need for recording
The need for recording statements of a witness under section 164 of the code is two-fold:
1. To deter witness from changing their versions subsequently: and
2. To get over the immunity from the prosecution in regard to information given by the
witness under section 162 of the code. Another reason for recording statement of
witnesses under the section 164 of the code is to minimize the chance of changing the
versions by the witness at the unit under the fear of being involved in perjury.
Legal provisions
Section 164 CrPC talks about the statements recorded by Magistrate:
Sub Section (1) authorizes the Magistrate to record the statement of a person or his confession,
no matter whether he possess jurisdiction in the case. If he does not possess such jurisdiction
sub s (6) will apply. The word statement is not limited to statement by a witness but includes
accused and not amounting to a confession.
Sub Section (1) states that: any Metropolitan Magistrate or Judicial Magistrate may, whether
or not he has jurisdiction in the case, record any confession or statement made to him in the
course of an investigation under this chapter or under any other law for the time being in force,
or at any time afterwards before the commencement of the inquiry or trial.
Warning under Subsection 2
Subsection 2 of Section 164 mentions a warning. Under the statutory provision, the Magistrate
is first required to explain to the accused that he was not bound to make a confession and that
it did so, it might be used against him. This is the sine qua non for recording confession. The
other mandatory requirement is that the Magistrate must put questions to the accused to satisfy
himself that the confession was a voluntary so as to enable him to give the requisite certificate
under subsection (4). The Magistrate cautioned the accused that he was not bound to make a
confession, but did not put questions to the accused to satisfy himself that the accused was
making confession voluntary.
In Mahabir Singh v. State of Haryana court observed that, Where the Magistrate fails to explain
to accused that he was not bound to make the confession and that if he did so, such confession
might be used as evidence against him, that confession so recorded, cannot be taken into
consideration.
The Magistrate must satisfy himself that no pressure or force was used on the accused who
makes the confession. Any mark of the person of the accused to vitiate the voluntary character
of the confession. When was held not only inadmissible under the section but it could not be
used under the other provision of Indian Evidence Act such as sections 21 & 29.
Bar against police pressure

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Dr. Absarul Hasan Kidwai
Dept. of Law
AMU
The Sub Section 3 guarantee that police pressure is not brought on the person who is unwilling
to make a confession. Where the accused was in judicial custody for more than 2 days prior to
the giving of confession it was held that the period is sufficient to shed fear and influence of
the police, if any and therefore the confession could be made voluntary by the accused. The
interval between preliminary questioning and recording of the confession need not necessarily
be 24 hours duration. A confession was held not to rejected merely because the Magistrate had
failed to assure the accused that he would not be sent back to the police custody in the event of
his failure to make the confession.
Manner of recording Confession, signatures etc.
Subsection (4) says that the confession should be recorded in a manner provided under section
281 and shall be signed by the person making it. The Magistrate shall then make the
memorandum at the foot of such confession. The Magistrate cannot merely sign a printed
instruction supplied to him. This will be violative of this section. The confession which was
made voluntary and recorded correctly in a different language can be said to have amounted to
an irregularity. The entire confession must be brought on record. The confession must be shown
to be voluntary before it can be acted upon.
It is necessary that the confession should be signed by the accused. If it is not, will be admissible
in evidence, the commission would no vitality the confession and the irregularity is curable
under section 463. The attestation of the accused is unnecessary when a confession is made in
court to the officer trying the case at the time of trial.
The confession without memorandum that it is voluntary is bad in law and cannot be admitted
in evidence.
Manner of recording statement other than confession
Subsection (5) lays down the manner in which a statement is to be recorded. The statement of
the witness can be recorded under this section even after the submission of charge sheet in the
case. See this also
Recording the Statement of Rape Victim
Subsection 5A reads as a mandatory provision for recording the statement of the prosecutrix
under Section 164(5A) of CrPC by the Magistrate. As soon as the crime is brought to the
knowledge of the police officer, he is duty bound to take the victim to the nearest Judicial
Magistrate for recording her statement. The victim approaches the court for recording her
statement being distressed and aggrieved with the attitude of the investigating agency. Thus, it
is the duty of the Magistrate to record her statement.
Transfer of confession to Magistrate of jurisdiction
This subsection (6) states that the Magistrate recording a confession or statement under this
section shall forward it to the Magistrate by whom the case is to be inquired into or tried.
Putting things simply
 The statement of an accused though recorded in the presence of the Magistrate but not
in accordance with the provision of section 164 Crpc is inadmissible in evidence.

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Dr. Absarul Hasan Kidwai
Dept. of Law
AMU
 A Magistrate has the discretion to record or not to record a confession. If he elects to
record it, this is section requires him to comply with four provision:
1. It should be recorded and signed in the manner provided in section 281 and then
forward to the Magistrate concerned.
2. He should give a statutory warning that the accused is not bound to make a
confession.
3. He should be first satisfied that it is being made voluntarily,
4. He should add memorandum at the foot of the confession.
 Thus, it is sufficient if before commencing to record the confession, a Magistrate puts
the necessary questions required by that section to the accused and it is not mandatory
that he should keep on repeating those questions to him after every break in the
recording of a long confession.
Is the recorded statement, a public document?
Statement recorded by a Judicial Magistrate or Metropolitan Magistrate under section 164
CrPC, is a public document under section 74 of Indian Evidence Act,1872. This evidence is
admissible under Section 80 of the Indian Evidence Act, 1872. In Guruvind Palli Anna Roa
and others v. State of Andhra Pradesh, Hon’ble High Court held that” The statement of
witness recorded under section 164 Crpc, is a public document which does not require any
formal proof and there is no necessity to summon the magistrate who records the same”
Principles
In RABINDRA KUMAR PAL alias DARA SINGH v. REPUBLIC OF INDIA, Supreme
Court of India laid down the following principles:
1. The provisions of Section 164 Cr.P.C. must be complied with not only in form but in
essence.
2. Before proceeding to record the confessional statement, a searching enquiry must be
made from the accused as to the custody from which he was produced and the treatment
he had been receiving in such custody in order to ensure that there is no scope for doubt
of any sort of extraneous influence proceeding from a source interested in the
prosecution.
3. A Magistrate should ask the accused as to why he wants to make a statement which
surely shall go against his interest in the trial.
4. The maker should be granted sufficient time for reflection.
5. He should be assured of protection from any sort of apprehended torture or pressure
from the police in case he declines to make a confessional statement.
6. A judicial confession not given voluntarily is unreliable, more so, when such a
confession is retracted, the conviction cannot be based on such retracted judicial
confession.

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Dr. Absarul Hasan Kidwai
Dept. of Law
AMU
7. Non-compliance with Section 164 Cr.P.C. goes to the root of the Magistrate’s
jurisdiction to record the confession and renders the confession unworthy of credence.
8. During the time of reflection, the accused should be completely out of police influence.
The judicial officer, who is entrusted with the duty of recording confession, must apply
his judicial mind to ascertain and satisfy his conscience that the statement of the accused
is not on account of any extraneous influence on him.
9. At the time of recording the statement of the accused, no police or police officer shall
be present in the open court.
10. Confession of a co-accused is a weak type of evidence.
11. Usually, the Court requires some corroboration from the confessional statement before
convicting the accused person on such a statement
Who is qualified person for recording the statement under section 164 of the code?
According to section 164(1) of CrPC, Judicial Magistrate or the Metropolitan Magistrate,
whether or not having jurisdiction in the matter can record the confession or statement made to
him in the course of the investigation. The proviso added to the Subsection also removed those
confessions are recorded by a police officer in whom any power of magistrate has been
conferred under the law for the time being in force. Hence the Only a judicial magistrate or
Metropolitan Magistrate has the power to record the statement under section 164 of the Code.
Genuinity of Recorded Statement
Section 80 of the Evidence Act, states that–Whenever any document is produced before any
court, purporting to be a record or memorandum of the evidence, or any part of the evidence,
given by a witness in a judicial proceeding or before any officer authorized by law to take such
evidence, or to be a statement or confession by any prisoner or accused person, taken in
accordance with law, and purporting to be signed by any Judge or Magistrate, or by any such
officer as aforesaid, the court shall presume
– that the document is genuine, that any statements as to the circumstances under which it was
taken, purporting to be made by the person signing it, are true, and that such evidence,
statement or confession was duly taken.
In view of the provision of 164 of the code the Magistrate has not obtained his signature on the
statement but has endorsed his certificate at the foot of the statement. Then it is very difficult
to ascertain as to whether the witness is speaking truth or false.
The part of the presumption at the foot of section 80 of the evidence act states that– that any
statement as to the circumstances under which it was taken, purporting to be made by the person
signing it. That means if the statement which bears the signature of the maker can only come
under the purview of section 80 of the Evidence Act. Hence the statement bearing the signature
of the maker then only it can be called as genuine, else not.
Evidentiary value
confession is a weak kind of evidence and hence needed to be corroborated. It may be used to
corroborate or contradict a statement made in the court in the manner provided under section

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Dr. Absarul Hasan Kidwai
Dept. of Law
AMU
157 and 145 of Indian Evidence Act. The statement cannot be used a substantive piece of
evidence but it can be used for the purpose of corroboration and can be used to contradict by
cross-examining the person who made.
What is the procedure to be followed while recording statements?
The procedure to be followed while recording the statement is mentioned in Subsection 5 of
section 164. This subsection states that any Statement (excluding confession) made under
subsection shall be recorded in a manner hereinafter provided for the recording of evidence as
is, in the opinion of the magistrate, best fitted to the circumstances of the case. The magistrate
shall also have the power to administer oath to the person whose statement is so recorded.
Delhi High Court while citing Punjab Government circular Letter No. 6091-J.-36/39329 (H.—
Judl.), dated the 19th December 1936, to all District Magistrates in the Punjab, in Delhi High
Court Rules said that, before the Magistrate proceeds to record the confession, he should
arrange so far as is compatible with his safety and that of his staff and with the safe custody of
the prisoner—that the latter is left for some time (say, for half an hour) out of the hearing of
police officers or other persons likely to influence him, in order to ensure that the statements
made are voluntary.
Hence there is no as such procedure prescribed and it is left to the magistrate deal the matter
with the best-suited way, keeping in mind the circumstances of cases.
Places where the recorded statements are used
A statement made under section 164 of the Code of Criminal Procedure may be used to
corroborate or contradict a statement made in the court in the manner provided under section
157 & 145 of the Evidence Act,1872. It can be used for the purpose of corroboration. It can be
used to cross-examining the person who made it show that the evidence of the witness is false
but that does not establish that what he started out in the court under this section is true. A
statement made by the witness under section 164 CrPC can be used for the purpose of cross-
examining him and discrediting his evidence in the session’s court.
Supreme court in Kashmira Singh V. State of M.P answered the question as of the use of the
statement in the trail. The court observed that “In case of witness denies the fact of recording
of his statement by Magistrate or if he denies a specific portion of his statement to be not told
by him, examination of Magistrate is not necessary to prove contradiction which is unlike the
case of the statement recorded by police under section 162”.
Relevance of Statements Recorded by police During investigation
Section 162 Crpc contains a prohibition Against the singing of the witness’s statement recorded
during the investigation. It has the origin in the historical distrust about the faithful recording
of statement by the investigation officers. This practice helps the untruthful police officers to
mould in the way they like, sometimes to the utter dismay the witnesses. This is only possible
because of the validity of the section 162 CrPC which helps the accused to contradict the
witness if the during the trial in a court the witness come to make a contradictory statement.
This is impossible for the police to record contradictory statement even in the case of the
truthful witness who must have said the same thing to the police as well as in the court. This
statement in the case of dairy often help the accused to get acquitted of the court does not
handle the issue carefully.

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Dr. Absarul Hasan Kidwai
Dept. of Law
AMU
10 Important concluding points
 The statement recorded under section 164 of the code focus on the statement of the
witness by the magistrate which is under this section recorded under this section on
oath.
 The object of recording the statement is to preserve the evidence, to get the account of
the testimony of the witness at the first instance and while it is still fresh and to preserve
retraction of the testimony at the later stage.
 The statement recorded under section 164 of the code can be used for the corroboration
of the witness’s testimony at the trail.
 The application for recording the statement under this section is usually filed by the
prosecution.
 The magistrate has to ensure before recording the statement the voluntariness of a
confession made before the magistrate are too well established for reiteration.
 The magistrate has to ought to extremely careful as regards the identity of the witness/
complaint before proceeding to record the statement.
 The statement of a witness recorded under section 164 Crpc, is a public document which
does not require any formal proof and there is no necessity to summon the magistrate
who records the same.
 Sub Section (1) of section 164 CrpC authorizes the Magistrate to record the statement
of a person or his confession, no matter whether he possess jurisdiction in the case. If
he does not possess such jurisdiction sub s (6) will apply
 the confession recorded under section 164 CrPC, should be recorded in a manner
provided under section 281 and shall be signed by the person making it. The Magistrate
shall then make the memorandum at the foot of such confession.
 Only a judicial magistrate or Metropolitan Magistrate has the power to record the
statement under section 164 of the Code
Section 165 Search by police officer:
The provisions of this section are mandatory are meant to authorise the police officer making
an investigation to conduct a general search on the chance that something relevant to the
commission of the offence may be found.
But the Police officer must record in writing the reasons for his making a search. He must
clearly record the grounds of his belief and specification of the thing for which search is to be
made. Omission to mention these grounds would amount to gross violation of the provisions
of this section.
The other provisions of this Code as to search warrant and general provisions as to searches
contained in Section 100 Cr PC shall so far as may be, applicable to a search made under this
section.

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Dr. Absarul Hasan Kidwai
Dept. of Law
AMU
The search contemplated under this section must be for particular things, documents or
specified materials necessary for the purpose of investigation. The section does not permit a
general search.
Thus, where a police officer searches a house for stolen articles generally not for any particular
article mentioned by the complainant as having been stolen from him, such a search would be
considered as a general search and hence not permissible under this section.
As far as possible, a search under Section 165 should be made personally by the police officer
and he should avoid it to be made by his subordinate officer. It is only in exceptional cases that
he may authorise his subordinate officer to make a search under Section 165. But a search made
by a subordinate officer without proper authority would be wholly illegal. The authorization
should be in writing.
The Supreme Court in Radha Kishan v. State held that resistance by the person whose premises
were sought to be searched was justified when the search was being made by the police officer
in contravention of Sections 100 and 165 of the Cr. P.C. But the Apex Court observed that even
if the search is illegal it does not justify any obstruction or any criminal act against the officer
conducting the search after search and seizure are complete.
Illegality of a search will not affect the articles or recovery of articles and subsequent trial
cannot be vitiated only on this sole ground.
In state of Himachal Pradesh v. Sukh Ram, recovery of 54 bottles of liquor from the conscious
possession of the accused was proved on the record beyond any reasonable doubt and nothing
had come on record to show as to what prejudice has been caused to the accused due to non-
compliance of the provisions of Section 165 of the Code and, therefore, there is no reason to
hold the search illegal.
The Supreme Court, in State of Punjab v. Balbir Singh has expressed a view that in a case
coming under NDPS Act, if a police officer comes across a person in possession of narcotic
drugs or psychotropic substances, he may make search himself if empowered under the NDPS
Act or in the alternative, he may inform the empowered officer, who would make search under
the Act. But if the search has already been completed in course of investigation under Section
165 Cr. P.C., then the question of complying with provisions relating search as contained in
Section 50 of NDPS Act would not arise at all.
Section 166, When officer in charge of police station may require another to issue search
warrant:
Legal provisions regarding when officer in charge of police station may require another to issue
search warrant under section 166 of the Code of Criminal Procedure, 1973.
(1) An officer in charge of a police station or a police officer not being below the rank of sub-
inspector making an investigation may require an officer in charge of another police station,
whether in the same or in different district, to cause a search to be made in any place, in any
case in which the former officer might cause such search to be made, within the limits of his
own station.

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Dr. Absarul Hasan Kidwai
Dept. of Law
AMU
(2) Such officer, on being so required, shall proceed according to the provisions of Section
165, and shall forward the thing found, if any, to the officer at whose request the search was
made.
(3) Whenever there is reason to believe that the delay occasioned by requiring an officer in
charge of another police station to cause a search to be made in investigation might result in
evidence of the commission of an offence being concealed or destroyed, it shall be lawful for
an officer in charge of a police station or a police officer making any investigation to search,
or cause to be searched any place in the limits of another police station, in accordance with the
provisions of Section 165 of the Code, as if such place were within the limits of his own police
station.
(4) Any officer conducting a search in the limits of another police station shall forthwith send
notice of the search to the officer in charge of the police station within the limits of which such
place to situate, and shall also send to the nearest Magistrate empowered to take cognizance of
the offence, copies of the records.
(5) The owner or occupier of the place searched shall, on application, be furnished free of cost
with a copy of any record sent to the Magistrate.
Investigation in a country or place outside India:
Section 166-A of the Code of Criminal Procedure provides that:
(1) Notwithstanding anything contained in the Code of Criminal Procedure, if, in the course of
an investigation into an offence, an application is made by the investigating officer or any
officer superior in rank to the investigating officer that evidence may be available in a country
or place outside India, any criminal Court may issue a letter of request to a Court or an authority
in that country or place competent to deal with such request to examine orally any person
supposed to be acquainted with the facts and circumstances of the case and to record his
statement made in the course of such examination and also to require such person or any other
person to produce any document or thing which may be in his possession pertaining to the case
and to forward all the evidence so taken or collected or the authenticated copies thereof or the
thing so collected to the Court issuing such letter.
(2) The letter of request shall be transmitted in such manner as the Central Government may
specify in this behalf.
(3) Every statement recorded or document or thing received shall be deemed to be the evidence
collected during the course of investigation under Chapter XII of the Code of Criminal
Procedure which relates to information to the police and their powers to investigate.
Investigation in India on the request from a country or place outside India:
As per Section 166-B of the Code of Criminal Procedure, upon receipt of a letter of request
from a Court, or an authority in a country or place outside India competent to issue such letter
in that country or place for the examination of any person or production of any document or
thing in relation to an offence under investigation in that country or place, the Central
Government may, if it thinks fit,—
(i) Forward the same to the Chief Metropolitan Magistrate or Chief Judicial Magistrate or such
Metropolitan Magistrate or Judicial Magistrate as he may appoint in this behalf, who shall

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Dr. Absarul Hasan Kidwai
Dept. of Law
AMU
thereupon summon the person before him and record his statement or cause the document or
thing to be produced; or
(ii) Send the letter to any police officer for investigation, who shall thereupon investigate into
the offence in the same manner,
As if the offence had been committed within India. All the evidence taken or collected, or
authenticated copies thereof or the thing so collected, shall be forwarded by the Magistrate or
police officer, as the case may be, to the Central Government for transmission to the Court or
the authority issuing the letter of request, in such manner as the Central Government may deem
fit.
(c) Process of filing charge sheet (S. 173)
Section 173, Report of police officer on completion of investigation:
Legal provisions regarding report of police officer on completion of investigation under section
173 of the Code of Criminal Procedure, 1973.
(1) Every investigation shall be completed without unnecessary delay;
(2) (i) As soon as the investigation is completed, a report is to be submitted to the magistrate
empowered to take cognizance of the offence on a police report (i.e., the charge-sheet or the
challan). The report is to be in the form prescribed by the State Government, stating: —
(a) The names of the parties;
(b) The nature of the information;
(c) The names of the persons who appear to be acquainted with the circumstances of
the case;
(d) Whether any offence appears to have been committed and, if so, by whom;
(e) Whether the accused has been arrested;
(f) Whether he has been released on his bond and, if so, whether with or without
sureties;
(g) Whether he has been forwarded in custody under Section 170 of the Code.
(ii) 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.
(3) Where a superior officer of police has been appointed under Section 158, the report shall,
in any case in which the State Government by general or special order so directs, be submitted
through that officer, and he may, pending the orders of the Magistrate, direct the officer in
charge of the police station to make further investigation.
(4) Whenever it appears from a report forwarded under Section 173 that the accused has been
released on his bond, the Magistrate shall make such order for the discharge of such bond or
otherwise as he thinks fit.

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Dr. Absarul Hasan Kidwai
Dept. of Law
AMU
(5) When such report is in respect of a case to which Section 170 applies, the police officer
shall forward to the Magistrate along with the report: —
(a) All documents or relevant extracts thereof on which the prosecution proposes to rely
other than those already sent to the Magistrate during investigation;
(b) The statements recorded under Section 161 of all the persons whom the prosecution
proposes to examine as its witnesses.
(6) If the police officer is of opinion that any part of any such statement recorded under Section
161 of the Code is not relevant to the subject-matter of the proceedings or that its disclosure to
the accused is not essential in the interests of justice and is inexpedient in the public interest,
he shall indicate that part of the statement and append a note requesting the Magistrate to
exclude that part from the copies to be granted to the accused and stating his reasons for making
such request.
(7) Where the police officer investigating the case finds it convenient so to do, he may furnish
to the accused copies of all or any of the documents referred to in the provisions of Section
173(5) of the Code.
In Dinesh Dalmia v. C.B.I., it was observed that a charge-sheet is a final report within the
meaning of Section 173(2). It is filed so as to enable the Court concerned to apply its mind as
to whether cognizance of the offence thereupon should be taken or not.
The report is ordinarily filed in the form prescribed therefore. One of the requirements for
submission of a police report is whether any offence appears to have been committed and, if
so, by whom.
In some cases, the accused having not been arrested, the investigation against him may not be
complete. There may not be sufficient material for arriving at a decision that the absconding
accused is also a person by whom the offence appears to have been committed. If the
investigating officer finds sufficient evidence even against such an accused who had been
absconding, law does not require that filing of the charge-sheet must await the arrest of the
accused.
The power of the investigating officer to make a prayer for making further investigation in
terms of sub-section (8) of Section 173 is not taken away only because a charge-sheet is filed.
A further investigation is permissible even if order of cognizance of offence has been taken by
the Magistrate.
So long a charge-sheet is not filed within the meaning of Section 173(2) investigation remains
pending. It, however, does not preclude an investigation officer to carry on further investigation
despite filing of a police report, no terms of Section 173(8).
The statutory scheme does not lead to a conclusion in regard to an investigation leading to
filing of final forms under Section 173(2) and further investigation contemplated under Section
173(8).
Whereas only when a charge-sheet is not filed and investigation is kept pending, benefit of
Section 167(2) proviso would be available to an offender; once, however, a charge-sheet is
filed, the said right ceases. Such a right does not revive only because a further investigation
remains pending within the meaning of Section 173(8).

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Dr. Absarul Hasan Kidwai
Dept. of Law
AMU
(d) When Investigation is not completed – Remedies (S. 167)
Section 167 Procedure when investigation cannot be completed in twenty-four hours:
This section lays down the procedure to be adopted when the investigation against accused
person cannot be completed within 24 hours of his arrest and there are grounds for believing
that the accusations against him are well founded.
The provisions of this section are attracted under the following conditions—
1. When the accused is arrested without warrant and is detained by a police officer in his
custody;
2. It appears that more than 24 hours will be needed for his investigation;
3. There are grounds to believe that tne accusation or information against him is well founded.
4. The officer-in-charge of the police station or the investigating officer not below the rank of
a sub-inspector forwards the accused for remand before a Magistrate.
The Judicial Magistrate may either refuse to detain him or he may direct his detention in police
custody or judicial custody. The police can interrogate the accused even after his remand to
judicial custody.
A new sub-section (2-A) has been inserted in this section by the Cr.P.C. Amendment Act of
1978 which provides that where a Judicial Magistrate is not available, the accused along with
the copy of the entries in case diary should be sent to the nearest Executive Magistrate on whom
the powers of a Judicial Magistrate or Metropolitan Magistrate have been conferred.
However, the provisions of Section 167 are not to be invoked where the accusation or
information is not well founded, or where the investigation can be completed within 24 hours.
The Executive Magistrate may authorise detention of the accused in custody for not more than
7 days.
Judicial Remand:
The Judicial Magistrate to whom the accused person is so forwarded, whether he has or has not
the jurisdiction to try the case, may authorise the detention of the accused in police custody for
a term not exceeding 15 days in the whole. He may order the accused to be forwarded to a
judicial Magistrate having jurisdiction to try the case, if he considers detention of the accused
beyond 15 days necessary for completion of investigation.
The nature of custody may be altered from police custody to judicial custody and vice versa
during the first 15 days period [7 days in case of Executive Magistrate vide subsection (2-A)].
But on expiry of 15 days period, the accused can be ordered to be kept in judicial custody and
not in the custody of the police.
The Supreme Court in CBI Special Investigation Cell v. Atiupam Kulkarni, has reiterated that
the custody after the expiry of first 15 days can only be judicial custody for the rest of the
period of 90 days or 60 days as the case may be.

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Dr. Absarul Hasan Kidwai
Dept. of Law
AMU
Thus, police custody if found necessary can be ordered only during the first 15 days. However,
if the accused is involved in another case, he can be re-arrested and remanded to police custody
with the permission of the Magistrate.
Where police are not readily available for escort duty, it would be a valid ground for extending
the period of remand of an accused under Section 167 (2) of the Code.
The Magistrate is expected to apply his judicial mind while deciding the matter of remand
taking into consideration all the available materials including the copy of case diary, and the
order of police remand should not be passed in a routine manner merely because the police has
so requested.
The Magistrate has the discretion to order detention of the accused in police custody criminal
judicial custody as he thinks fit. He may also remand the accused to Army, Navy or Air Force
custody if the accused person is subject to that law. In case of remand by Executive Magistrate
under sub-section (2A) the reasons for authorising the detention of accused have to be recorded
in writing.
The maximum period of remand in case of offences punishable with death, imprisonment for
life or imprisonment for a term not less than ten years is 90 days and for any other offence it is
60 days. If the investigation is not completed within this period the accused person has got to
be released on bail without any further detention.
The prescribed statutory period of 90 days or 60 days as mentioned in Proviso (a) to Section
167 (2) is to be computed from the date on which the Magistrate authorises the detention of the
accused person.
The Court cannot refuse to pass an order directing the release of accused on bail on the ground
that no such written application has been given by the accused. However, after filing charge-
sheet the Magistrate is not competent to grant bail under this Proviso to Section 167 (2).
The Supreme Court in State of West Bengal v. Dinesh Dalmia observed that “the whole
purpose of Section 167, Cr. P.C. is that the accused should not be detained for more than 24
hours and subject to 15 days’ police remand and it can further be extended up to 90/60 days,
as the case may be.” The Court made it clear- that police custody means the police custody in
a particular case for investigation and not judicial custody in another case.
Thus, where two F.I.Rs were lodged against the accused at Calcutta and Chennai and the
accused who was arrested and in CBI custody in the case pending before the Court at Chennai,
on receiving information that he was also required in case at Calcutta, voluntarily surrenders
before the Magistrate of Chennai in case relating to F.I.R. in Calcutta, such notional surrender
cannot be treated as police custody so far as counting 90 days, from that surrender as regards
case pending in Calcutta.
Explaining the reason, the Court held that a notorious criminal may have number of cases
pending against him in various police stations in city or outside city, a notional surrender in
pending case for another F.I.R. outside city or of another police-station in same city, if counted
for the purpose of 90/60 days, as the case may be, police will not get an opportunity to get
custodial investigation. Therefore, the surrender by the accused in the instant case cannot be
deemed to be in the police custody in the case pending in Calcutta.

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Dr. Absarul Hasan Kidwai
Dept. of Law
AMU
In State of Rajasthan v. Ravishankar Shrivastaya, it was held that release on bail is not allowed
for an accused of corruption charges. In the instant case the accused was not arrested in the
F.I.R. filed against him, but was arrested on second F.I.R. being filed against him the next day.
Application for bail was filed by the accused under Section 167 on the ground of his continued
detention beyond 24 hours without proper remand in the first F.I.R. (in which he was not
arrested). The High Court of Rajasthan held that the arrest of accused on the basis of second
F.I.R. could not be treated as deemed custody in first F.I.R. also.
Therefore, failure of filing of charge-sheet in first F.I.R. within stipulated period from the date
of so-called deemed custody does not entitle the accused to be released on bail under proviso
(a) of Section 167 (2) of the Code of Criminal Procedure.
In Jagdeeswar v. State of Andhra Pradesh, the High Court of Andhra Pradesh, inter alia, has
observed, that, “remand order to be passed in accordance with the provisions of Section 167 of
the Code of Criminal Procedure, is certainly not an administrative order to be passed by the
Magistrate. It is a judicial order to be passed on application of mind to the contents of the
remand report submitted by the Investigating Officer.
The order should reflect the necessary application of mind on the part of the Magistrate and the
extension of remand in consequence thereof. It is not an empty formality or a routine course to
extend remand time and again as and when sought for by the police. The order, therefore,
should contain the reason to extend remand further.
The authorisation of the detention of the accused in custody must be with reference to entries
made in the remand report that the investigation could not be completed within a period of 24
hours as fixed under Section 57 of Cr PC and that there are grounds for believing that the
information is well founded. This is the reason why the Investigating Officer is obliged under
law to forward the entries in the case diary while seeking remand to custody. The necessary
satisfaction of the Magistrate in regard thereto should reflect in the remand order.”
Where the accused was not produced before the Magistrate and without seeing him, the
Magistrate went on remanding him to custody, the action was held illegal because of the
contravention of the provisions of Section 167 (2) of the Code.
However, the High Court of Karnataka in Sajjad v. State of Karnataka, held that presence of
accused at the time of passing a remand order may be dispensed with by the Magistrate only
on special reasons. The Court observed that fundamental rights of a person cannot be trampled.
Even the accused also enjoys fundamental rights which have to be safeguarded.
Therefore, it is necessary on the part of the police to produce the accused in the Court before
seeking an order of remand. But if under any circumstances, the accused cannot be produced,
the Court should insist the police officer seeking the remand order to file an affidavit stating
the reasons for not producing the accused and also as to the state of health of the accused.
While remanding the accused without he being produced in Court, the Court shall give reasons
for not getting the accused produced before the Court. Thus the Court can dispense with the
presence of the accused only on special reasons.
While computing the total period of 60 days referred to in Proviso to Section 167 (2), the period
of detention under Section 57 (which must not be more than 24 hours) should be excluded.

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Dr. Absarul Hasan Kidwai
Dept. of Law
AMU
Where it has been filed consequent to the completion of investigation, the remand comes to an
end and the provisions of Section 167 (2) cease to operate.
Then the question of release of the accused on bail depends on the judicial discretion of the
Magistrate. The Magistrate will cease to have any jurisdiction to commit the accused to police
custody after he has been granted bail.
Where the charge sheet was filed within 90 days, but the Magistrate had not passed an order
taking cognizance within the period, it was held that the accused was not entitled to seek bail
under Proviso to Section 167(2) of the Code.
Where the petitioner was arrested for allegedly having committed attempt to murder. As no
hurt was caused to any person in or during attempt to murder, the case was covered under first
part of Section 307 of IPC prescribing imprisonment which may extend to ten years. As charge-
sheet was filed within the statutory period of sixty days of the date of detention of the petitioner,
he was entitled to be released on bail under Proviso to Section 167(2) of the Code.
Where there was failure to submit charge-sheet even after the expiry of statutory period of 60
days from the date of detention, in case of an accused charged with offence under Section 304-
B, I.P.C. which is punishable with imprisonment for life, the rejection of bail application was
held proper. The reason being that the statutory period for this case was 90 days and not 60
days.
The Supreme Court in Bhupinder Singh v. Jarnail Singh reiterated that permissible limit for
filing challan for offence under Section 304-B IPC is 90 days and if the challan is filed within
this statutory period, the accused will be entitled to be released on bail under Section 167 of
Cr. P.C.
Explaining the meaning and significance the expression ‘punishment’ used in Section 167 (2)
of Proviso, the Apex Court observed that what should be the adequate punishment in a given
case has to be decided by the Court on the basis of the facts and circumstances involved in the
particular case.
The stage of punishment comes only after recording the order of conviction of the accused
person. The word ‘punishable’ appearing in the Proviso denotes liable to be punished and not
‘must be punished’.
Where minimum and maximum sentences are prescribed both are imposable depending in facts
of the cases. It is for the Court, after recording conviction, to impose appropriate sentence.
Therefore, it does not mean that where the minimum sentence is provided, the sentence
imperable can only be the minimum sentence.
In Gayasuddin v. State of Jharkhand, application was filed for release on bail under Section
167 (2). The charge-sheet was filed by police after the order of release was passed but before
filing of bail bond by the accused. It was held that the accused was not entitled for grant of bail.
More so, because it was shown by the material on record that complicity of accused in alleged
offence and allegations were serious in nature.
In a case, under Section 18 of the NDPS Act, 1985, the charge-sheet was submitted after 90
days but the full Bench of High Court of Madhya Pradesh refused the release of accused on

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Dr. Absarul Hasan Kidwai
Dept. of Law
AMU
bail under Section 167 (2), Proviso as Cr. P.C. is not applicable to proceedings under NDPS
Act. However, his prayer for bail could be considered under Section 37 of the NDPS Act
The Supreme Court in Hussainara Khatoon v. State of Bihar, has emphasised that it is the duty
of the Magistrate to inform the accused that he has a right to be released on bail under Proviso
to Section 167 (2) and also the State is under a constitutional obligation to provide free legal
services to an indigent accused not only during trial but when he is remanded from time to
time.
Failure on the part of the Magistrate to inform the accused of this precious right to free legal
aid in case of his being indigent, would vitiate the trial and result in the acquittal of the accused
person.
The bail granted to the accused under this section has the same incidents as the bail granted
under Chapter XXXIII of the Code and it shall remain valid till it is cancelled as per the
provisions of Section 437 (5) of the Code. The Supreme Court in Bashir v. State of
Haryana,11 has ruled that receipt of the charge-sheet in Court by itself is no ground for
cancellation of bail which was granted under Section 167 (2) of the Code.
It has been made clear in Explanation I to Section 167 (2), that mere lapse of statutory period
of 90 days or 60 days, as the case may be, shall not entitle the accused to be released on bail
forthwith unless he furnishes bail. In other words, he shall remain in custody until he furnishes
bail.
Where the accused has voluntarily surrendered to judicial custody, the provisions of this section
authorising his detention in police custody or other custody within the prescribed statutory time
limit will not be applicable because in such a case, the accused is not “forwarded” by the police
to the Magistrate as required under Section 167 (2) of the Code.
In summons cases, the investigation has to be concluded within a period of six months from
the date of arrest of the accused. This period may be extended by the Judicial Magistrate where
the officer making investigation satisfies him that continuation of investigation period beyond
six months is necessary in the interest of justice.
The continuation of investigation beyond 6 months period without Magistrate’s permission will
be illegal and the subsequent taking cognizance of the offence by the Magistrate and initiating
proceedings thereon will also be without jurisdiction.
Sub-section (6) empowers the Sessions Judge to direct further investigation, on an application
made to him or otherwise, on his own satisfaction that such investigation is necessary and he
should record reasons for doing so. Thus, he may vacate the order made by the Magistrate
under which the investigation was stopped due to expiry of six months period.
In Jayanta Borbora v. State of Assam the order of remand of accused who was a terrorist, to
Army custody on prayer by investigation officer was held to be illegal and ultra vires the
Constitution, as the Armed Forces have no powers of investigation or interrogation while
coming to the help of civil authorities.
Transit Remand:
Quite often it happens a person commits a crime in one State and is caught or apprehended by
the police of another State. In such a case the police of the other State by which the offender

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Dr. Absarul Hasan Kidwai
Dept. of Law
AMU
has been arrested produces him before the Magistrate. The Magistrate thereupon issues an
arrest warrant against the accused and orders the police to take (transfer) the accused to the
State in which he has committed the offence.
For this transit of the accused the Magistrate has to pass an order for his transit remand. For
example, in a crusade against the Naxalites, the CRPF made recruitment of some constables in
its special Anti-Naxalite Wing ‘KOBRA’. There were allegations of bribery and corruption
against the CRPF Commander Yadvendra Singh and two collegues Pargat Singh and Pappu
Singh and these officers were arrested by the CBI in Delhi.
But since the alleged offences had been committed in Begusarai (Bihar) the accused persons
had to be taken to Patna to be produced before the Special Court, Patna in Bihar. Therefore,
they were taken on transit remand by the CBI, Delhi to be taken to Patna and the Delhi Chief
Metropolitan Magistrate, Kaveri Baveja, ordered their transit remand on May 6, 2009 to be
produced in Patna Court on May 7, 2009.
In the instant case, FIR was filed against the accused persons on May 1, 2009 in which it was
alleged that Commandant of the CRPF Group Centre, Tata Nagar, Shri Yadvendra Singh, in
collusion with Pargat Singh, the brother-in-law (Bahnoi) of the Chairman, Police Recruitment
Board, Begusarai, Shri B. S. Sindhu corruptly earned illegal money to the tune of crores of
rupees in recruiting constables in its special force KOBRA which was a special Anti-Naxalite
Wing.
Four days later, the CBI arrested Shri Yadvendra Singh from his residence located in Delhi and
recovered several incriminating documents from him. His collegue Pappu Yadav was arrested
at Delhi Railway Station with Six lakh rupees in his possession which he allegedly was going
to give to Pargat Singh.
Since the accused persons were to be tried in the Special Court at Patna, their transit from Delhi
to Patna was necessary therefore, the Delhi Police moved the Court of Chief Metropolitan
Magistrate, Delhi for a Transit Remand which the Court granted by its order dated May 6,2009.
B. Letter of Request to competent authority for investigation in a country outside India
Section 166A- Letter of request to a competent authority for investigation in a country or
place outside India.
This section says that if during the course of investigation for an offence, an application is
made by an investigating officer who states that evidence may be available in a country or
place outside India, then any criminal court may issue a letter of request to a Court or any
authority in that particular country who is competent to deal with the request. The request may
involve examining the person who may be acquainted with the facts and circumstances of the
case or retrieving any document which may be in possession of the person being questioned
pertaining to the case. Each document or statement shall be treated as an evidence as received
in the course of the investigation. The court issuing the letter of request must follow the rules
as specified by the Central Government in this behalf. The country so requesting to conduct an
investigation in another country shall have to be bound by the extradition treaty that the two
countries have. If a country does not have any treaty to that effect, the request will be rejected.

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Dr. Absarul Hasan Kidwai
Dept. of Law
AMU
C. Public Prosecutor & Defence Counsel – Choice of Accused (SS. 24,25,303 & 304)
Section 24, Public Prosecutors:
A Public Prosecutor is considered as the agent of the state to represent the interest of common
people in the criminal justice system. The prosecution of the accused is the duty of the state
but not individually the duty of the aggrieved party. They are appointed in almost all countries.
The Public Prosecutor is defined in Section 24 of Cr.P.C. They serve as the basic principle of
Rule of Law i.e. auld alteram partem (no person shall be condemned unheard).
Meaning
Section 2(u) of the Code of Criminal Procedure defines Public Prosecutor.
“A person who is appointed under Section 24 of CrPC and it also includes any person who is
acting under the directions of Public Prosecutor.”
In the case of Babu vs State of Kerala,
The Court observed that Public Prosecutors are ministers of justice who is duty bound to assist
the judge in the administration of justice.
Functions
The functions of the Public Prosecutor differ according to their designation.
 Public Prosecutor- supervise the function exercised by the Additional Public Prosecutor
in Session Court and High Court.
 Chief Prosecutor- supervise the functions exercised by Assistant Public Prosecutor in
Metropolitan Magistrate Court.
 Additional Prosecutor- conduct criminal proceedings in the Session Court.
 Assistant Public Prosecutor- they examine the charge sheet prepared by agencies and
submit the acquittal or discharge. They also are responsible for the evaluation of
evidence and filing revisions petitions. They also conduct the criminal proceedings in
the Court of Metropolitan Magistrate.
 Director of Prosecution- it is the head office. They exercise the overall control and
supervision of officers of Directorate. They also look after the Account Branches.
The objective of establishing a Directorate of Public Prosecutors is to supervise and scrutinise
the functions relating to various prosecution agencies at Assistant Session level and Session
level except at High Court.
Reasons for the Appointment of Public Prosecutor
Whenever any crime is committed against a group or individual, it is assumed that it has been
committed against society. It is the duty of the state to provide justice to any group of society
or person who is affected by the crime. In India, it is necessary that the criminal justice system
should function within the limits of the Indian Constitution, which means that it is necessary
for the Public Prosecutor to act in accordance with the principles of:
 Equality before law

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Dr. Absarul Hasan Kidwai
Dept. of Law
AMU
 Protection against double jeopardy

 Protection against self-incrimination

 Protection against ex-post law
 Right to life and personal liberty except procedure established by law
 Presumption of innocence until proven guilty
 Arrest and detention must be in accordance with the provisions of Cr.P.C.
 Equal protection of laws
 Speedy trial
 Prohibition of discrimination
 Right of accused to remain silent
Role of Public Prosecutors
It is divided into two parts:
 In investigating process
 During the trial
Role of the Public Prosecutor in the investigating process
 To make an appearance in the Court and obtain an arrest warrant
 To obtain search warrants for conducting a search in specified premises
 To obtain police custody remand for interrogation (including custodial interrogation)
of the accused
 To initiate a proceeding for the declaration of the non-traceable offender as the
proclaimed offender
 To record the evidence of accused in the police report regarding the advisability of the
prosecutions
Role of Public Prosecutors at the time of trial
 Sentencing- when the accused is proven guilty, then the defence counsel and the Public
Prosecutor further argue to decide the quantum of punishment. At this stage, the Public
Prosecutor may argue for the adequate punishment keeping in mind the facts,
circumstances of case and gravity of the offence. It helps the judge to arrive at a
judicious decision.
 To conduct a speedy trial- Right to a speedy trial is a fundamental right and it is
impliedly given in Article 21 of Constitution of India which states “Right to life and
Personal Liberty”. The prosecutors have a responsibility to call all the witnesses whose
evidence is essential to decide the case. To cross-examine the witness and to see that
no witness if left unexamined. To produce all the necessary documents.

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Dr. Absarul Hasan Kidwai
Dept. of Law
AMU
Other Important Roles
 The Public Prosecutor cannot aggravate the facts of the case or deny to examine the
witness whose evidence may weaken the case. The main aim must be to discover the
truth.
 He should not defend the accused. It is against the fair play of administration of justice
or against the legal profession.
 He represents the State, not police. He is an Officer of State and is appointed by State
Government. He is not a part of any investigating agencies but an independent
authority. He is charged with statutory duties.
 Superintendent of; police or District Magistrate cannot compel to the Public Prosecutor
to withdraw the case.
 If there is an issue which is raised by defence counsel and failed, it should be brought
out in the notice of the court by Public Prosecutor.
 To ensure that justice is done.
Provision Under Cr.P.C
Hierarchy of Public Prosecutor according to Section 24:
 The Public Prosecutor appointed by Central Government
 The Public Prosecutor appointed by State Government
 Additional Public Prosecutor appointed by State Government.
 Special Public Prosecutor appointed by Central Government
 Special Public Prosecutor appointed by State Government.
Section 24 of Cr.P.C talks about the appointment of Public Prosecutors in the District Court
and High Court by the state government and central government respectively.
Sub-section 3 states that the Public Prosecutor needs to be appointed for each district and may
also appoint Additional Public Prosecutor.
Subsection 4 states that the District Magistrate in consultation with Session judge needs to
prepare a panel of names which is considered as fit for such an appointment.
Subsection 5 states that the person can’t be appointed as a Public Prosecutor or Additional
Public Prosecutor by the State Government in a district unless his names are on the panel
prepared under subsection 4.
Subsection 6 explains that in a case where a state has a local cadre of prosecuting officers, but
there is no suitable person in such cadre for an appointment the appointment must be made
from the panel prepared under subsection 4.
Subsection 7 states that person can be appointed as Public Prosecutor only after he has been
practised as an advocate for the minimum period of 7 years.
Judicial trend

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Dr. Absarul Hasan Kidwai
Dept. of Law
AMU
In the case of Vineet Narain vs Union of India,
Facts– the offence involves high political dignitaries. CBI failed to investigate properly.
The court stated that there are no limitations or restrictions as to launching of prosecutor or
initiation of investigations.
In the case of Jitendra Kumar @Ajju vs State (NCT OF Delhi)
The High Court of Delhi stated that “the Public Prosecutor acts on the behalf of the state. They
are the ministers of justice who play a pivot role in the administration of criminal justice”.
In the case of Zahira Habibullah vs State of Gujarat,
This case is known as “Best Bakery Case”.
Facts– burning down of construction in the city of Vadodara results in the death of 14 persons
This matter came up before the Supreme Court for consideration.
The Supreme Court stated the “Public Prosecutors acted more as the defence rather than
focusing on presenting the truth before Court”.
In the case of Thakur Ram vs State of Bihar,
The reason behind the establishment of the office of Public Prosecutor is that no private person
can use the legal apparatus to wreak private vengeance anyone.
In the case of Tikam Singh vs State & Ors,
There is no dispute related to the office of the Public Prosecutor but there is a public element
attached to it. He acts as the representative of the state but not a complainant. The role of the
Public Prosecutor is distinguished from the role of private counsel.
In the case of Sandeep Kumar Bafna vs State of Maharashtra & Anr,
The court stated that “a Public Prosecutor is not expected to show a thirst to reach the case in
the conviction of the accused somehow or other irrespective of the facts of the case. The attitude
of the Public Prosecutor must be fair towards the investigating agencies and as well as towards
the accused.”
In the case of Radheyshyam vs State of M.P & Ors,
The court stated that a special Public Prosecutor can be appointed when the administration of
justice is required. They cannot appoint only on the request of the complainant. His
remuneration is paid by the state because if it will be paid by the private party, then his ability
or capacity to perform his role as a Public Prosecutor will be endangered. The government
cannot appoint Special Public Prosecutor on such terms, directing him to receive his
remuneration from any private individual.
In the case of Kunja Subidhi and Anr vs Emperor,
The duty of the Public Prosecutor is to place before the court all the relevant evidence whether
it is in favour or against the accused and to leave upon the court to decide the matter.
Recent illustrations

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Dr. Absarul Hasan Kidwai
Dept. of Law
AMU
In the year 2018, The Government of Delhi appointed senior lawyers, Rebecca Mammen John
and Vishal Goshen as special Public Prosecutors in the murder case of Ankit Saxena Murder
Case for the purpose of the rial.
In the year 2019, Arvind Kejriwal ordered for the appointment of a special Public Prosecutor
in the Soumya Vishwanath’s case.
Present scenario India
There is no uniformity in the structure of the public prosecution in India. There is no boundary
created between the investigating agency and the prosecution in a number of states. This affects
the impartiality of Public Prosecutor since police control the prosecutions. When the
prosecution is headed by a senior police officer, the boundary collapses completely.
Although the Law Commission in the year 1958 suggested the establishment of Directorate of
prosecution with its own cadre, such a recommendation was not accepted in Cr.P.C. Some
states have Directorate of Prosecution while others do not.
Suggestions
 Encouraging more lawyers to become Public Prosecutors.
 Increasing the salary structure of the Public Prosecutor so that it can act as a
reinforcement to more people.
 Limit the experience required to 3 years instead of 7 years.
 To establish a national institute to impart proper training upon the aspiring candidates.
 Making compulsory for all the states to create its own Directorate of Prosecutions.
Section 25, Assistant Public Prosecutors:
Section 25 of Cr.P.C states that the Assistant Public Prosecutors is appointed in the district for
the purpose of conducting prosecution in Magistrate Court. The court may appoint one or more
Assistant Public Prosecutors for the purpose of conducting a case.
If there are no Assistant Public Prosecutors then District Magistrate may appoint any other
person to act as the Assistant Public Prosecutors.
Section 24 provides that the Assistant Public Prosecutor should also be a practising Advocate.
But Section 25 of the Code does not provide so and, therefore, under certain circumstances
even a police officer can be appointed as Assistant Public Prosecutor under Section 25 of the
Code.
A police officer to the rank of Inspector or above may be appointed to act as Assistant Public
Prosecutor in any case provided that he has not himself been the investigating officer in the
offence for which the accused was being tried. Such Prosecutors shall be free fully from
administrative and disciplinary control of the police department.
However, the practice of appointing police prosecutors as Assistant Public Prosecutors has
been disapproved by the Supreme Court.

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Dr. Absarul Hasan Kidwai
Dept. of Law
AMU
The appointment of a prosecutor is a compelling constitutional necessity obligatory under the
Code. Financial constraints cannot absolve the State of its constitutional obligation.
Accused cannot demand that the prosecution should be conducted by a particular prosecutor
only.
As Section 24 of the Code of Criminal Procedure does not speak about extension or renewal
of the term of the person appointed as public prosecutor, the same procedure, as provided under
sub-section (4) of Section 24 has to be followed.
The Public Prosecutor is the holder of a public office. He is not a part of the investigating
agency. He is an independent statutory authority. As an advocate for the State, he may be
ranked as a minister of justice equally with the judge.
The Public Prosecutor or the Additional Public Prosecutor cannot appear against the State in
criminal matters. They cannot appear on behalf of the accused even in cases instituted by a
private party.
The duty of a public prosecutor is to represent the administration of justice so that the testimony
of all the available eyewitnesses should be before the Court. He must consider himself as an
agent of justice.
The public prosecutor is the counsel for the Government for conducting prosecution on behalf
of the Government. His duty as public prosecutor is not merely to secure the conviction of the
accused at all costs but to place before the court whatever evidence is in his possession, whether
it be in favour or against the accused and to leave court to decide upon all such evidences
whether the accused had or had not committed the offence with which he stood charged. He
has to be truthful and impartial. His duty to the Court should be fair, independent and unbiased.
The Public Prosecutor is an officer of the Court and he is bound to assist the Court with his
fairly considered view and the court is entitled to have the benefit of the fair exercise of his
function.
The duty of the prosecutor is to assist the Court in reaching a proper conclusion in regard to
the case which is brought before it for trial. The public prosecutor shall not be partial either to
the accused or the prosecution. It is not part of the prosecutor’s duty to obtain convictions by
hook or by crook.
Similarly, the Assistant Public Prosecutors are appointed by the Government only for
conducting prosecutions in the Courts and they are full time Government servants. They have
no right to practise or take briefs to defend the accused in criminal cases.
No specific provision has been made in the Code of Criminal Procedure in respect of the
conduct of prosecution in the Courts. According to the prevailing practice, in respect of cases
initiated on police report, the prosecution is conducted by the Public Prosecutor or Assistant
Public Prosecutor and in cases initiated on a private complaint, the State can appoint
prosecutors if the cause has public interest. The Public Prosecutors have right to conduct
prosecution and that in such a case no permission of court for conducting the prosecution would
be necessary.
Section 303, Right of person against whom proceedings are instituted to be defended:

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Dr. Absarul Hasan Kidwai
Dept. of Law
AMU
The section confers a right on the accused person to be defended by a counsel of his choice,
and if he does not have sufficient means to engage a lawyer, Section 304 requires the Court
under certain circumstances to arrange lawyer for his defence at the expense of the State. A
new Article 39-A inserted in the Constitution as one of the Directive Principles of State policy
recognizes in unequivocal terms that it is the duty of the State to provide free legal aid to the
indigent accused in order to ensure that equal opportunities for securing justice are not denied
to any citizen by reason of economic disabilities.
The Supreme Court in Janardan Reddy v. State, held that the provisions of Section 303 of the
Code are to be construed liberally in favour of the accused and must be read along with the
rules made by the High Court circulars and orders issued by it in this regard.
It must be stated that this section applies not only to the person accused of an offence but also
to any person against whom proceedings such as maintenance of wives and children or security
for keeping the peace and for good behaviour etc. are instituted under the Code in any Criminal
Court.
Article 22 of the Constitution also confers on a person, who is arrested, the right to consult and
to be defended by a practitioner of his choice. The provision is intended to afford an opportunity
of fair trial to the accused person.
In Bashira v. State, the Supreme Court observed that no hard and fast rule can be laid down as
to the time which must elapse between the appointment of the counsel and the beginning of the
trial, but keeping in view the circumstances of the case, the Court of Session must ensure that
the time granted to the counsel is sufficient enough to prepare for the defence of the accused
person.
In Simranjeet Singh Mann v. Union of India a political leader moved a writ petition under
Article 32 of the Constitution challenging the validity of conviction of the assailants of General
Vaidya. Dismissing the petition, the Supreme Court held that a total stranger to the trial has no
locus standi whatsoever to question the correctness of the conviction.
Section 304, Legal aid to accused at State expense in certain cases:
The section confers on the accused the right to legal aid at the expense of the State Government
in cases triable by a Court of Session and empowers the State Government to extend this facility
to other cases. The section underlies the principle that indigence of the accused person should
not be a ground for denying fair trial or equal justice.
The Court, before whom the accused appears, is under a duty to inform the accused that if he
is unable to engage the services of a counsel on account of poverty or indigence, he is entitled
to obtain free legal service aid and under the Legal Services Authorities Act, 1987.
With the enactment of this Act, the right to legal service for defence of indigent accused persons
has been recognised far beyond the scope of Section 304 and it extends to appeal against the
order of conviction of such accused in the High Court as also an appeal against his acquittal
filed by the State in the High Court.
The Supreme Court in Sukh Das v. State of Arunachal Pradesh has held that a conviction of
the accused in a trial in which he was not provided legal aid would be set aside as being
violative of Article 21 of the Constitution. But where the accused pleads guilty without the

SFA
Dr. Absarul Hasan Kidwai
Dept. of Law
AMU
assistance of a counsel under the legal aid scheme and was convicted by the Magistrate it was
held that the trial and conviction was not vitiated because the Magistrate was fully satisfied
that the plea was voluntary, true and genuine.
Where in a criminal appeal the council appointed by the Court for the accused does not turn up
at the time of hearing and the appeal is disposed of without hearing him, the case rightly
deserved to be remanded for fresh hearing of the appeal.
Where in a sessions trial the accused made a request for being provided the services of a
particular lawyer named by him at the State expenses as envisaged under Section 304 CrPC
but the State provided another lawyer to defend him, the High Court of Madhya Pradesh held
that it is not denied that an accused has the right to be defended by the lawyer of choice but
when it comes to the appointment of lawyer for the defence of accused at State expense, it
would be the choice of the Court and not of the accused to provide a lawyer for defending him.
The Court is under no obligation to provide to the accused, the lawyer of his choice if he wants
to be defended at the expenses of the State Government.
Ir. Rajiv Gandhi Murder case, the lawyers defending the indigent accused persons who were
appointed by the State were paid Rs. 50/- a day as their fees as per Rule 9 of the Legal Aid to
Poor Accused Rules, 1976. They moved the High Court to raise their fees making it at par with
the prosecution lawyers on the principle of equal pay for equal work.
Rejecting their petition, the High Court of Madras held that the rule of equal pay for equal work
was not attracted in the instant case because the criteria for the appointment of prosecution
lawyer is different from those of defence lawyers appointed under the legal aid services scheme
for the indigent persons.
The Court further held that the fees payable to each defence lawyer appointed for to defend the
indigent accused persons appeared to be quite reasonable, just and fair in the circumstances
and therefore, it did not warrant any interference by the Court.
The High Court of Rajasthan has ruled that an accused having sufficient means cannot claim
for free legal aid assistance of a lawyer at the expense of the State, particularly when he has
already engaged a defence lawyer of his own choice.
The Calcutta High Court in Rajender Singh v. State of West Bengal, held that depriving the
accused persons of their right to produce evidence and not providing them opportunity to cross-
examine the prosecution witnesses will be gross violation of mandatory provisions of Section
304 of Cr. P.C. which may result in quashing of the entire proceedings and the conviction of
the accused may be set aside. In such a case, the appellate Court may also order re-trial of the
case if it deems necessary in the interest of justice.
SUGGESTED BOOKS:
1. Ratanlal: The Code of Criminal Procedure
2. Prof. Haffezul Rehman: Lect. on Criminal Procedure
3. Mishra: The Code of Criminal Procedure

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