Detailed Discussion on the Processes Involved in Investigation

A. Proceeding to the Crime Scene [Section 157(1)] & Ascertainment of Facts & Circumstances of the Case

Upon receiving information of commission of a cognizable offence, if the officer in charge of police station has reason to
suspect the commission of such offence, he shall forthwith send a report of the same to a Magistrate empowered to take
cognizance of such offence on police report [under Section 190(1)(b)]
&
shall proceed in person or shall depute one of his subordinate officers 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. [Read Sec. 157(1)]

Proviso (a) to Section 157(1) - When information as to commission of any such offence is given against any person by name and the
case is not of 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 (crime scene). [Police officer must state in his report to Magistrate the reasons
for not complying with the requirement of proceeding to the crime scene [read Sub-section(2) of Section 157]

Proviso (b) to Section 157(1): If it appears to the officer in charge of police station that there is no sufficient ground for
entering on an investigation, he shall not investigate the case. [Police officer must state in his report to Magistrate the
reasons for not investgating the case and he shall also notify the informant regarding the same [read Sub-section (2) of 157]
B. Effecting Arrest of Accused/Suspected Person

Note: We will discuss the Law Relating to Arrest including the Rights of Arrestee in a Separate Lecture.
C. Conducting Search
During investigation, police officer is empowered to conduct search of a place. Search may be conducting either with search
warrant or wihthout search warrant. Lets discuss both these modes of conducting search by Police:

(i) Conducting Search with Search Warrants:

 A court having jurisdiction over the subject-matter of the proceeding may issue a search-warrant for search in any place in
India in the same way as a warrant of arrest.
 Police officer is empowered to make a search of any place under the search warrant issued under Section-93 of the Code. Sub-
section (1) of Section 93 provides that the search warrant can be issued in the following circumstances:

(i) When the order or the summons issued under Section-91 is not obeyed by the person,

(ii) When the Court has reason to believe that the order or the summons will not be obeyed;

(iii) Where the document or the thing is not known to the Court to be in possession of any person,

(iv) When the general search is required for the purpose of investigation, inquiry or trial.

Note: Section 91 of the Code confers a general power on Court and police officer to issue summons/order for production of
document or other thing which is necessary for the purposes of conducting investigation, inquiry, and trial.Before issuing the
summons the Court must satisfy itself that the document or thing required for investigation, inquiry or trial is in the possession
of the person to be summoned.
 The non-compliance of the order issued u/s 91 is punishable under Section-175 of the IPC.
Other circumstances in which a search warrant may be issued are:

i) Search of a place suspected to contain stolen property, forged documents etc. [Section 94]
ii) Search of a place suspected to contain any book, newspaper or documents which the State Government has declared to be
forfeited. [Section 95]
iii) Search for the person who is wrongfully confined. [Section 97]

(ii) Search without Warrant

 Section 165 of the Code empowers the police officer to make the search without any warrant. This Section provides that when
for the purpose of investigation the search a place is required and the delay occasioned in obtaining search warrant will
defeat the purpose of search, then the police officer is empowered to make the search without obtaining the warrant.
[Power u/s 165 can only be exercised in case of cognizable offences and only after the registration of the case, not before
that]
 Power of search without warrant should be exercised by the police officer with great caution and only in those cases in which
the production of the document cannot be secured by adopting the procedure given under Section 91 and Section 93.
Other instances of Search without Warrant under CrPC:

(a) Section 166 enables a police officer to effectuate search of a place located beyond the limits of his own police station, if the
exigencies of the situation so require.

(b) Where a police officer in charge of a police station has reason to believe that weights, measures or instruments for weighing
which are false, are used or kept in any place, he can inspect and search the place and seize such things as per Section 153 of the
Code.
Note 1: Section 103 of the Code empowers a Magistrate to direct a search to be made in his presence of any place for the search
of which he is competent to issue a search warrant.

Safeguards Against Search Without Warrant:

Sometimes, search may prove to be exceedingly arbitrary in character, stringent statutory conditions are imposed on the
exercise of the power. Section 165 provides certain safeguards to the person concerned in order to prevent the arbitrary
exercise of the powers.

 Section 165 does not permit a general search and it authorizes police officer the power to search for particular things or
documents, necessary for the purposes of the investigation.
 The police officer must have reasonable grounds for believing that:

(a) The thing for which search is to be made for the purposes of the investigation may be found in the place within the limits of
his police station.

(b) Such thing, in his opinion, cannot otherwise be obtained without undue delay i.e. it would be too late before a search-warrant is
obtained from a Magistrate. Therefore, the section ensures that the search by police officer is not arbitrary and are genuinely
required in cases where there is no time to approach a Magistrate for a search-warrant.

(c) The police officer before proceeding to search a place must record the grounds of his belief as to the necessity of such
search and must also specify the things for which the search is to be conducted. The non recording of reasons for search would
make the search illegal.
(d) Copies of record relating to searches made by the police officer shall be sent forthwith to the nearest Magistrate. This
requirement prohibits any kind of manipulation or fabrication afterwards.

(e) The section requires the Magistrate to furnish; free of cost, to the occupier of the place searched a copy of the entire
record furnished to him. It enables the occupier to satisfy himself as to the legality of the search.

General Safeguards against Arbitrary Search and Seizure: [With or without warrant]

Section 100 provides certain safeguards against arbitrary search and seizure, and invasion of privacy which are applicable in all
cases whether the search is with or without warrant. The safeguards are as follows:

(a) The search should be made in presence of two or more independent and respectable witnesses;

(b) A list of things seized in course of the search should be prepared and signature of the witnesses should be obtained on it;

(c) The occupant of the place searched or his representative should be permitted to attend the search and a copy of the search
list should be delivered to him.
Constitutional Validity of Search-Warrants:
Issue 1: Whether a search-warrant is valid when issued against the accused person relating to documents or things in his
possession?
 The Supreme Court in Shyamlal Mohanlal v. State of Gujarat, AIR 1965 SC 1251 has held that the term ‘person’ in Section 94 of
CrPC, 1898 (now section 91 of CrPC, 1973) does not include an accused person.
Therefore, the court or police officer, as the case may be, is precluded from issuing a summons/order to an accused person to
produce any document or thing in his possession as that would be violative of Article 20(3) of the Constitution.

 A search-warrant under Section 93(1)(a) can be issued only in cases where a summons has been or might has been issued. As the
term ‘person’ in Section 91 does not include an accused, therefore, a search-warrant under Section 93(1)(a) for the documents or
things in the possession of the accused cannot be issued.

Issue 2: Whether a search-warrant is valid where it is issued for a general search or inspection of the premises in possession or
occupation of the accused person?
The question was answered by the Supreme Court way back in 1954 in M. P. Sharma v. Satish Chandra, in following words:
“Article 20(3) of the Constitution gives protection to the accused person against testimonial compulsion. In these cases the
search and consequent seizure of the documents or other things are not the acts of the accused. Neither the search nor the
seizure is acts of the occupier of the searched premises. They are acts of another to which he is obliged to submit and are;
therefore, not his testimonial acts in any sense.”

Therefore, where a search warrant is issued under Section 93(1)(b) & (c), for particular thing or document not known to be in
possession of any person or a warrant for general search of the premises in possession of the accused person, cannot be said to
be violative of Article 20(3) of the Constitution
(iii) Procedure Relating to Search of a Place:

Section 100 of the Code provides that:

 any person residing in, or being charge of such closed place shall on production of the warrant, allow free entry and afford all
reasonable means for smooth search of the place.

 If there is any reasonable suspicion that any person is concealing on his person any article or thing for which the search of a
place is to be made, the person may be searched.

 If the person to be searched is a woman, then the search shall be made by another woman with strict regard to her decency

Note: Section 100 is applicable when a search is to be made of a place and not of a person.
D. Seizure of Certain Thing/Property:
Section 102 of the Code confers power on a police officer to seize certain property. In case of M.T. Enrica Lexie v. Doramma,
(2012) 6 SCC 760, the Supreme Court elaborated upon the power of police to seize any property under Sec. 102 and held that
such power can be exercised if such property is:

(a) alleged to be stolen or is suspected to be stolen or

(b) the object of the crime under investigation or has direct link with the commission of offence under investigation.

Note: Where a search warrant is issued for the search of any particular things, the person making the search has been
empowered to seize such things if recovered during such search and shall report the seizure to the Magistrate and in case the
property cannot be carried to the court, to give it to a person executing bond for its production before the court.

Issue: [Relevant for both Search and Seizure]: Whether failure on the part of the investigating officer to comply with the
procedural requirements provided under the Code (for example safeguards provided u/s 165 etc.) will make the search and
subsequent seizure illegal
- The Courts in India has maintained the consistent view that if no prejudice is caused to the accused person such evidence,
though collected by illegal search and seizure, will be admissible in the court of law.
“Even if there is any sort of procedural illegality in conducting the search and seizure, the evidence collected thereby will not
become inadmissible and the Court would consider all the circumstances and find out whether any serious prejudice had been
caused to the accused. If the search and seizure was in complete defiance of the law and procedure and there was any
possibility of the evidence collected likely to have been tampered with or interpolated during the course of such search or
seizure, then, it could be said that the evidence is not liable to be admissible in evidence.” [Khet Singh v. UOI, (2002) 4 SCC 380;
Also see: Radhakrishan v. State of U.P., AIR 1963 SC 822; Shyam Lal Sharma v. State of M. P., AIR 1972 SC 886]
E. Interrogation /Examination of Witnesses, Accused, Victim/s and Recording of their Statements [Sections 160 to 163] including
Confession of Accused and its Recording by Magistrate [Section 164]

Interrogation is an important part of the investigation. While conducting the investigation for the purpose of gathering the
facts of the case, collection of evidences and recording of statements various person need to be interrogated and their
statements ought to be recorded. Lets discuss Section 160 to 164 in detail:

(i) Statutory Power of Police Officer to Require Attendance of any Person: [Section 160]

 Section-160 provides for the power of the police officer, making the investigation, to require the attendance before himself
of any person acquainted with the facts and circumstances of the case by issuing a written order.

 It is mandatory to appear in fulfillment of the order issued under this Section. As this sub-section (1) provides “such person
shall attend as so required”.

 The non-compliance with the order issued under sub-section (1) is punishable under Section-174 of the IPC.

Q. Could you point out some inconsistency between the heading of Section 160 which reads, “Police officer’s power to require
Attendance of Witnesses” and the main body of the Section?

Q. How will you interpret the words 'any person' used in Section 160 of the Code?
Exception to the Power of Police Officer to Require Attendance of any Person is provided under the Proviso to Section 160(1) of
CrPC, which reads thus:
A male person below the age of 15 years or above the age of 65 years or a female person (of any age) or a mentally or physically
disabled person cannot be ordered to appear in the police station. These persons can be interrogated by the police officer at the
place of their residence.

In this regard, it is relevant to mention Proviso to Section-157(1), which was inserted by the Criminal Procedure (Amendment) Act,
2008, which provides thus:

In case of offence of rape the statements of the rape victim shall be recorded at the place of her residence or any other place
of her choice and as far as practicable by a woman police officer in presence of her parents or guardian or near relatives or
social worker.

(ii) Examination of Any Person by the Police Officer: [Section 161]

Sub-section (1) of Section 161 reads thus:

161. Examination of Witnesses by Police:
(1) Any police officer making an investigation under this Chapter, or any police officer not below such rank as the State
Government may, by general or special order, prescribe in this behalf, acting on the requisition of such officer, may examine
orally any person supposed to be acquainted with the facts and circumstances of the case.

Comments: Though the heading of Section-161 is “Examination of witnesses by police”, but the main the body of this Section
suggests that the police officer is empowered to examine “any person” acquainted with the facts and circumstances of the case
either at the police station or at the place of their residence or any other place
 During investigation the police may examine a person who subsequently becomes an accused under this sub-section. Though, no
statement made by such accused to a Police officer during investigation shall be admissible in evidence at the trial, by the
reason of Section 162 except under Sections 27, 32 and 145 of the Evidence Act.

Sub-section (2) of Section 161 reads thus:

Such person shall be bound to answer truly all questions relating to such case put to him by such officer, other than questions the
answers to which would have a tendency to expose him to a criminal charge or to a penalty or forfeiture.

Comments:
 Police officer can ask any question from the person being examined and he/she shall be bound to give the answer truly.

 Furnishing of the false information is punishable under Section-202 and Section-203 of the IPC and refusing to give the answer
is punishable under Section-179 of the IPC.

 The later part of Sub-section (2) provides a protection to any person being examined/interrogated by the police that the
questions the answer to which would have a tendency to expose him to a criminal charge or to a penalty or forfeiture need
not to be answered.

Q. What is the reason for giving the above-mentioned protection under sub-section (2) to any person being examined/
interrogated by Police at the stage of investigation?
Sub Section (3) of Section 161 provides that:
 The police officer may reduce into writing any statements made to him in course of an examination under this Section; and
if he does so, he shall make a separate and true record of the statement of each such person whose statement he records.

 The Investigating Officer should record the statements of witnesses promptly. Such prompt recording of the statements
avoids the contradictions and suspicions.

Provisos to Sub-section (3):

 First proviso empowers the police officer for the recording of statements through the mode of audio-video electronic means.
[inserted by the Criminal Procedure (Amendment) Act, 2008]

 Second Proviso provides that the statement of a woman against whom an offence under section 354, section 354A, section 354B,
section 354C, section 354D, section 376, section 376A, section 376AB, section 376B, section 376C, section 376D, section 376DA,
section 376DB, section 376E or section 509 of the Indian Penal Code (45 of 1860) is alleged to have been committed or attempted
shall be recorded, by a woman police officer or any woman officer. [Inserted by the Criminal Law (Amendment) Act, 2013; and
some changes were made by the Criminal Law (Amendment) Act, 2018]
(iii) Evidentiary Value of the Statements Made to & Recorded by the Police Officer at the Stage of Investigation [Section 162]

 Sub-section (1) of Section-162 provides that the statements made to the police officer need not to be signed by the maker of
it. In this regard the relevant part of this Sub-section reads thus:

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; [because these may be extracted by the police by using the unlawful means. These
statements are not made of oath].

 These statements cannot be used as the substantial piece of evidence at the stage of trial and the guilt of the accused
cannot be determined only on the basis of these statements. In this regard later part of Sub-section (1) reads thus:

“nor shall any such statement or any record thereof, whether in a police diary or otherwise, or any part of such statement or
record, be used for any purpose, save as hereinafter provided, at any inquiry or trial in respect of any offence under
investigation at the time when such statement was made.”.

 But these statements can be used only for the purpose of Section 145 of the Evidence Act. Under the proviso to Sub-section (1)
of section 162, it is provided that these statements can be used by the accused or, with the permission of the Court, by the
prosecution against the maker of it when he appears as a witness to contradict him.

 In other words, these statements can be used for impeaching the credibility of the witness by establishing the contradiction
between his previous statements made at the stage of investigation and the statements made before the Court at the
stage of trial. But these statements cannot be used by the prosecution for the purpose of corroboration.
 When any part of such statement is used to contradict the maker of the statement (u/s145 of the Evidence Act), any part
thereof may also be used in the re-examination of such witness, but for the purpose only of explaining any matter referred to
in his cross-examination.

Exceptions to the General Rule that Statements Recorded under Section 162 are not Admissible as Evidence: [Sub-Section (2) of
Section 162]

First Exception: When the maker of it dies after making the statements and the statements reveals the cause of his death or
the circumstances in which his death was caused then the statements are admissible as evidence under Section-32(1) of the
Evidence Act.

Second Exceptio: When these statements leads to discovery of certain articles or things then those statements are admissible
as an evidence under Section-27 of the Evidence Act.

(iv) No Inducement to be Offered by Police Officer to any Person Making Statement [Section 163]

 At the stage of the investigation police officers are empowered to interrogate any person and can ask any question and that
person is bound to give the answer truly but for extracting the answers no police officer shall make any inducement, threat or
promise to the person to be interrogated. [Section 163(1)]

 The statements made by the persons to the police officer must be out of their own free will. However it is not required that
the police officer shall caution a person from making any statement which he makes out of his own free will. [Section 163(2)]
(v) Recording of Confessions and Statements by the Magistrate [Section 164]
 Section-25 of the Evidence Act provides that a confession made to the police officer is not admissible as evidence. If at the
stage of the investigation a confession is made by the accused to the investigating officer or any other police officer that
cannot be used against the accused at the stage of trial.

 Section-164 of the Code provides a solution to this problem as it empowers the judicial magistrate or the metropolitan
magistrate for the recording of the confession and statement at the stage of the investigation and that shall be admissible as
evidence. Sub-section (1) of section 164 reads thus:

“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:

First Proviso: Any confession or statement made under this sub-section may also be recorded by audio-video electronic means in the
presence of the advocate of the person accused of an offence

Second Proviso: No confession shall be recorded by a police officer on whom any power of a Magistrate has been conferred under
any law for the time being in force.

 Before recording the confession the magistrate is required to inform the accused that he is not bound to make the confession
and if he makes it, it can be used against him and even after giving this information if the accused is willing to make the
confession only then he shall record it. [Sub-section (2) of Section 164]
 If at any time before the confession is recorded, the person appearing before the Magistrate states that he is not willing to
make the confession, the Magistrate shall not authorise the detention of such person in police custody. [Sub-section(3) of
Section 164]

Manner of Recording Confession: [Sub-section(4) Section 164]

Any confession u/s 164 shall be recorded in the manner provided in Section 281 for recording the examination of an accused person
and shall be signed by the person making the confession; and the Magistrate shall make a memorandum at the foot of such record to
the following effect:
"I have explained to (name) that he is not bound to make a confession and that, if he does so, any confession he may make may be
used as evidence against him and I believe that this confession was voluntarily made. It was taken in my presence and hearing, and
was read over to the person making it and admitted by him to be correct, and it contains a full and true account of the statement
made by him.”
(Signed) AB Magistrate

 Therefore, Before recording the statement the magistrate must satisfy himself that the accused is making the confession out
of his own free will and without any threat by the police officer.

 Confession should be recorded in the language of the accused (as far as possible) or in the language of the Court. But the
contents must be shown to the accused and be explained to him in his language by the Magistrate.

 Thereafter, it should be signed by the accused and the Magistrate who will also certify that he has recorded the confession
truthfully and nothing has been left over or added
Manner of Recording Any Statement (Other than a Confession) [Sub-section (5) of Section 164:

Any statement (other than a Confession) made by the witnesses to the police officer at the stage of investigation are not
admissible as evidence because of the effect of Sectio-162 of the Code. But Section-164(5) provides that if those statements are
recorded by the magistrate then that is admissible as evidence. Sub-section(5) reads thus:

“Any statement (other than a confession) made under sub-section (1) shall be recorded in such manner hereinafter provided for the
recording of evidence as is, in the opinion of the Magistrate, best fitted to the circumstances of the case; and the Magistrate
shall have power to administer oath to the person whose statement is so recorded.”

So, whenever it appears to the police officer that the statements of some witness/s are relevant at the stage of trial, he can
produce them before the magistrate who can record the statements.

Note: 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. [Sub-section (6) of Section 164]

 Confession recorded by the Magistrate is not a substantive piece of evidence. It has to be fully proved in trial court by the
Magistrate who recorded it and it may be tested by cross-examination of the Magistrate.

 The provisions of Sec.164 applies only to the confession or statement made before a Magistrate, during investigation and
before the inquiry and trial. When a confession is made during trial, the provision of Section 281 is applicable.
Special Procedure for Recording the Statement of Victim of any Sexual Offence/s: [Sub-section (5A) of Section 164]

Section 164(5A) (Clause a) reads thus:

In cases punishable under section 354, section 354A, section 354B, section 354C, section 354D, sub-section (1) or sub-section (2) of
section 376, section 376A, section 376AB, section 376B, section 376C, section 376D, section 376DA, section 376DB, section 376E or
section 509 of the Indian Penal Code (45 of 1860),
the Judicial Magistrate shall record the statement of the person against whom such offence has been committed in the manner
prescribed in sub-section (5), as soon as the commission of the offence is brought to the notice of the police:

If the person making the statement is temporarily or permanently mentally or physically disabled:
 the Magistrate shall take the assistance of an interpreter or a special educator in recording the statement
 the statement shall be videographed.

Section 164(5A) (Clause b) provides that:

A statement recorded under clause (a) of a person, who is temporarily or permanently mentally or physically disabled, shall be
considered a statement in lieu of examination-in-chief, as specified in section 137 of the Indian Evidence Act, 1872 (1 of 1872) such
that the maker of the statement can be cross-examined on such statement, without the need for recording the same at the time
of trial.