CHAPTER XII

INFORMATION TO THE POLICE AND THEIR POWERS TO INVESTIGATE

154. Information in cognizable cases.—(1) Every information relating to the commission of a cognizable offence, if given orally to an officer incharge 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 statisfied 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 incharge of a police station in relation to that offence.

COMMENTS

Cruelty, Criminal Intimidation, Insult—Criminal breach of trust—Powers of Magistrate for Registration of F.I.R.—There is no scope for police officer to refuse registration of any information as an FIR which discloses cognizable offence. Police officer could investigate FIR of cognizable offence without order passed by Magistrate concerned. In case police refuses to register FIR, Magistrate may direct police to register FIR and order for investigation into such offences. By not following mandate of law not only magistrate had committed miscarriage of justice but had given blow to person seeking justice from him, for inaction on part of police, for torture of his daughter at hands of accused. Impugned order was quashed due to glaring example of miscarriage of justice and flouting mandate of law.—Ravindra Singh v. State of U.P., II (2006) DMC 20 (All).

Delay in F.I.R. explained.—Where delay of 4-1/2 hours, satisfactorily explained by prosecution, delay was not fatal to prosecution.—Nagaraj v. State, 2006 Cri LJ 3724 (Mad) (DB).

Delay in lodging FIR—Whether fatal ?—Deceased and his wife were assaulted, one of them had died on spot and other was seriously injured. Therefore, anxiety on part of persons was to first shift injured to hospital instead of going to police station to lodge a complaint. Couple of hourse were taken to go to police station to lodge a complaint, sounds natural. Merely because the informant did not choose to use a tractor available in village to go to police station, could not be a suspicious circumstance. There was no evidence to show that tractors were in usable condition and they could have been spared either to complainant. Delay in lodging FIR could not be said to be inordinate. It was not fatal.—Mallikarjun Ningappa Ragati v. State of Karnataka, 2006 Cri LJ 4298 (Kant).

Evidentiary value of FIR.—FIR is not a substantive piece of evidence. It could be used for contradiction and corroboration to the statement of the author of FIR in Court. Defence plea that complainant in FIR had mentioned that accused was having farsi with wooden handle whereas in Court stating that accused was having dharia and lathi. Alleged contradiction had not been put by defence counsel in cross-examination nor opportunity was given to complainant to explain same. Accused could not get benefit of such contradiction.—Bheru D. Balai v. State of M.P., 2006 Cri LJ 2345 (MP).

F.I.R.—Adverse inference when could not be drawn.—First Information Report might have been lodged by the appellant only when the police arrived at the scene of occurrence. The Investigation Officer came to the place of occurrence at about 4.45 p.m. P. W. 1 categorically stated that he had asked someone to inform the police. When he did not comply therewith, then only he did so, if, in the aforementioned situation, the appellant had not informed the officer in charge of the police station, presumption of adverse inference could be raised against him. There was no delay on the part of the appellant in informing the police, particularly, when he had informed PW 1 who, in turn, informed the police.—Dinesh Borthakur v. State of Assam, AIR 2008 SC 2205 at 2212 : (2008) 5 SCC 697.

FIR—Contents of.—The word “first information report is not mentioned in the Cr.P.C. but it is understood to mean information recorded under Section 154, Cr.P.C. The object of the first information report is to set the criminal law in motion and from the point of view of the investigating authority, receiving such information

about the alleged criminal activity, he can take suitable steps to press and bring guilty to picture. The FIR need not contain each and every minute of the incident that occurred either prior to or subsequent to the offence. An information is sufficient to authorise the I.O. to unearth all connected matter, prior or subsequent, to the filing of the case.—Ramakant Singh v. State of Bihar, 2006 Cri LJ 4752 at 4755 (Pat).

F.I.R.—Contradiction in—Effect of.—There was testimony of informant who was eye-witness. Due to contradiction in F.I.R., evidence became seriously doubtful.—Parimal Gowala v. State of Tripura, 2007 Cri LJ 2394 (Gau) (Agartala Bench).

FIR—Credibility of.—Before lodging of complaint with police, complainant had consulation with each other. That by itself, was not sufficient to doubt or to discredit FIR and to infer that FIR was fabricated. Especially when complainant was not related to deceased and he was only cultivating land belonging to family of deceased at that time, on crop share basis. Moreover, when the assailants were none other than brothers of deceased.—Mallikarjun Ningappa Ragati v. State of Karnataka, 2006 Cri LJ 4298 (Kant).

F.I.R.—Dacoity with murder—Value of contents of F.I.R.—Contents of F.I.R. could be used only to discredit informant and not other witnesses. Attempt to discredit eye-witnesses on basis of omissions in G.D. entry was not acceptable. Even if G.D. entry was to be treated as an F.I.R. and F.I.R. could not be relied upon under Section 162, it could lead to a conclusion that eye-witnesses on their own had not been able to establish guilt of accused.—Naresh Das v. State of Tripura, 2007 Cri LJ 2269 (Gau).

FIR—Death of informant pending trial—Evidentiary value.—FIR was lodged by eye-witness mother of deceased and she was not examined in Court because of her death. Content of FIR could not be looked into for judging veracity of prosecution case because appellants had no opportunity to cross examine informant witness.—Kailash v. State of M.P., 2007 Cri LJ 1329 (MP) (Indore Bench).

F.I.R.—Delay—No possibility of false implication.—Occurrence took place in night. Eye witnesses fleed away from village to jungle because of threats given to them by accused persons. They stayed out throughout night. There was filing of F.I.R. Next day morning, at the earliest opportunity, by two married sisters of deceased, who came to spend sometime with their family on occasion of some festival. In such circumstances, no possibility of false implication could be inferred because of delay in lodging F.I.R. Fact that Investigating Officer, in

his evidence stated that one of prosecution witnesses had come alone to police Station would not be of much significance.—Shivappa v. State of Karnataka, AIR 2008 SC 1860.

F.I.R.—Delay in lodging.—There was assault by accused. Explanation was given by independent witnesses that they gave priority to treatment of deceased and injured witness which occasioned the delay. It was accepted by Trial Court and appellate Court. No interference was required.—Vikram v. State of Maharashtra, AIR 2007 SC 1893.

F.I.R.—Delay in murder case not fatal.—There was delay of 3-1/2 hrs. in lodging F.I.R. Delay satisfactorily being explained, it was not fatal to prosecution.—Arjunan v. State, 2007 Cri LJ 1701 (Mad).

FIR—Delay in FIR reaching Magistrate not fatal.—Delay in FIR reaching Magistrate not fatal, unless it was shown that there was false implication of accused. Delay was due to Police Constable going to residence of S.P. at first instead of going to residence of Magistrate. No foundation of false implication of accused was laid by the accused and not even a suggestion had been put in this regard to prosecution witnesses. Held that delay in FIR reaching Magistrate was not a serious infirmity.—State v. Mallikarjuna, 2007 Cri LJ 910 (Kant).

F.I.R.—Delay in lodging not fatal.—Alleged intruders were Pakistani Nationals, had entered into Indian Territory with arms and ammunitions during Kargil war. Restriction order was issued by D.S.P. under Section 11 of Foreigners Order, 1948 whereby accused were ordered to be kept in joint interrogation centre for period of 14 days. Investigating agency dealt with case in secret manner. Had FIR been filed by copy sent to Magistrate within 24 hours, other conspirators would have become alert. Delay in filing FIR would not be fatal to prosecution in facts of case.—State of Gujarat v. Jaman Haji Mamad Jat, 2007 Cri LJ 1584 (Guj).

F.I.R.—Delay in lodging—Not fatal.—Delay in lodging F.I.R. was substantially explained an incident happened in remote village. F. I. R. could not be recorded earlier as entire family involved either on one side or other. Family members had first attended the seriously injured, one of prosecution witness. Ultimately widow of deceased had lodged F.I.R. In such circumstances delay of a couple of hours could not be said to be unreasonable.—Chandrappa v. State of Karnataka, AIR 2008 SC 2323 : (2007) 4 SCC 415 : (2007 2 SCC (Cri) 325 : 2007 Cri LJ 2136.

The High Court has wrongly recorded that there was no explanation for the delay in lodging the F.I.R. There was no requirement for offering any such explanation. Even otherwise, in the F.I.R. it has been categorically stated that nobody came forward to accompany the complainant to the police station in the dark night. Therefore, she had to wait till the morning to come to the police station. In the cross-examination to this witness, no question regarding the reason for the alleged delay in lodging the F.I.R. was asked, though, the witness was cross-examined at length. There was not even a suggestion that she had wrongly stated about the reason as to why she was lodging the F.I.R. on the next morning the conclusion of the High Court is, therefore, clearly unsustainable.—State of Punjab v. Mohinder Singh, AIR 2008 SC 92 at 94.

F.I.R.—Delay in lodging—Effect of.—It is trite that mere delay in lodging the first information report is not by itself fatal to the case of the prosecution. Nevertheless, it is a relevant actor of which the Court is obliged to take notice and examine whether any explanation for the delay has been offered and if offered, whether it is satisfactory or not. If no satisfactory explanation is forthcoming, an adverse inference maybe dran against the prosecution. However, in the event, the delay is properly and satisfactorily explained; the prosecution case cannot be thrown out merely not he ground of delay in lodging the F.I.R. Obviously, the explanation has to be considered in the light of the totality of the facts and circumstances of the case.—Ashok Kumar Chaudhary v. State of Bihar, 2008 Cri LJ 3030 at 3033 (SC).

Police station was situated at about 21 kilometers from place of occurrence. Torrential rains had further made it impossible for informant to reach police station. There was substantial explanation for the delay.—Tama v. State of West Bengal, 2007 Cri LJ 4724 (SC) : (2007) 10 SCC 493 : (2008) 1 SCC (Cri) 61.

F.I.R.—Effect of non-examination of its author.—FIR was not substantive piece of evidence and it could be used only for its corroboration and contradiction. Though author of FIR was not examined, another witness who was constable and had worked with author of FIR who was sub-inspector and who was well acquainted with his signature and handwriting had proved FIR. Therefore plea that FIR was not proved was liable to be rejected.—Amarsingh Gond v. State of M.P., 2007 Cri LJ 1560 (MP).

F.I.R.—Effect of non-production of.—Original F.I.R. where could not be produced as registers relating to non-cognizable offences were destroyed after a lapse of two years. Loss of original F.I.R. was duly proved by prosecution witness. Accordingly, secondary evidence

adduced by prosecution was accepted. Held that no adverse inference could be drawn against prosecution for non-production for original F.I.R.—Dharam Pal v. State of U.P., 2008 Cri LJ 1016 (SC).

F.I.R.—Effect of omission to mention specific details in G.D. entry.—Information about dacoity and murder was given without giving names of accused persons. Incident happened at dead of night. Apart from looting of articles, as many as three brutal murders had been committed. Miscreants were running amuck at dead of night breaking down doors and attacking inmates with deadly weapons. Informant would be expected to be shell shocked by violent murder of their dear ones as well as reign of terror let loose by miscreants. Omission to mention specific details in G.D. entry, could not lead to a conclusion of disbelieving eye-witnesses.—Naresh Das v. State of Tripura, 2007 Cri LJ 2269 (Gau).

F.I.R.—Evidentiary value of.—Assailants had not only assaulted deceased but assaulted injured person in front of their house and also assaulted about 10 persons in the same locality. It shows that movement of accused persons was continued for a long time and witnesses had sufficient opportunity to see and identify them. Genuineness of F.I.R. could not be doubted because of mentioning of names of all the accused persons with their father’s name.—Kumersingh v. State of Madhya Pradesh, 2007 Cri LJ 1349 (MP).

F.I.R.—Failure to name co-accused—No impact on prosecution case.—F.I.R. is not encyclopedia of entire case. It need not contain all details. Name of co-accused was not mentioned by informant who was eye-witness. But mother of deceased who was injured in incident had named co-accused in her statement recorded soon after incident. Informant as also mother of deceased were named co-accused in their statement to police and also before Court. Absence of name of co-accused in F.I.R. was not fatal.—Rotash v. State of Rajasthan, 2007 Cri LJ 758 : 2007 (13) SCJD 371.

F.I.R.—Filing of, by teacher—Validity of.—Certificate was issued by Head Master of School that said teacher was present in school on said date from 10.30 a.m. to 4 p.m. and performed his duties. It was pleaded by accused that it was not possible to file F.I.R. at 4.05 p.m. on that date. But accused did not examine Head Master to prove contents of F.I.R. Held that evidence on oath by teacher that on learning about the incident in afternoon he left school taking permission of Head Master could not be disbelieved.—Ananta Deb Singha Mahapatra v. State of West Bengal, 2007 Cri LJ 1705 (Cal).

FIR—Gang rape case—Adverse prosecution.—Evidence of witness was that he came to police station and verbally reported about an incident of rape of a girl of their cantonment. Recording of general diary on basis of such information without name of victim or name of any accused and details of incident could not be regarded as best evidence or real FIR. As FIR was not hit by provisions of Section 162 nor presecution withheld best evidence, hence, question of drawing adverse presumption under Section 114 (g) of Evidence Act did not arise.—Anil Lakra v. State of West Bengal, 2006 Cri LJ 4467 (Cal).

F.I.R.—Inaction of police officials in registering F.I.R.—Whenever any information is received by the police about the alleged commission of offence which is a cognizable one there is a duty to register the F.I.R. There can be no dispute on that source. The correct position in law, therefore, is that the police officials ought to register the F.I.R. whenever facts brought to its notice show that cognizable offence has been made out. In case the police officials fail to do so, the modalities to be adopted are as set out in Section 190 read with Section 200 f the Code. The writ petitions are finally disposed of with the following directions :-

(1) If any person is aggrieved by the inaction of the police officials in registering the F.I.R., the modalities contained in Section 190 read with Section 200 of the Code are to be adopted and observed.

(2) It is open to any person aggrieved by the inaction of the police officials to adopt the remedy in terms of the aforesaid provisions.

(3) So for as non-grant of sanction aspect is concerned, it is for the concerned government to deal with the prayer. The concerned government would do well to deal with the matter within three months from the date of receipt of this order.—Aleque Padamsee v. Union of India, 2007 Cri LJ 3729 at 3730, 3731 (SC) : (2007) 6 SC 171 : (2007) 3 SCC (Cri) 1.

F.I.R.—Information received by Investigation Officer on telephone.—Information was received in regard to commission of cognizable offence. It was not required to be preceded by F.I.R. On receipt of such information Police Officer was duty bound to reach the place of occurrence. Information received by Investigation Officer on telephone was not hit by Section 162.—Animireddy Venkata Ramana v. Public Prosecutor H. C. of A. P., AIR 2008 SC 1603 : (2008) 5 SCC 368.

F.I.R.—Lodging of in a murder case.—It was stated by infront a rustict villager that she was turned away from police station on

premise that on dead body was recovered or there being no other evidence relating to death of deceased. No exception to such a statement could be taken. Conduct of Police Officers are not unknown to Courts.—Ponnusamy v. State of Tamil Nadu, 2008 Cri LJ 2563 (SC) : (2008) 5 SCC 587.

F.I.R.—Lodging of second F.I.R.—Eligibility of.—Where there was lodging of F.I.R. and first informant despite knowledge of all details of incident i.e. murder had not furnished the same. Another report was lodged on the basis of statements made by eye-witnesses at spot before him and investing officer. Said F.I.R. lodged after conducting inquest was not reliabeigate.—Ramesh Baburao Devaskar v. State of Maharashtra, 2008 Cri LJ 372 (SC).

F.I.R.—Lodging of—Value of.—In a case of this nature, enmity between two groups is accepted. In a situation of this nature, whether the First Information Report was ante-timed or not also requires serious consideration. First Information Report, in a case of this nature, provides for a valuable piece of evidence although it may not be a substantial evidence. The reason for insisting of lodging of First Information Report without undue delay is to obtain the earlier information in regard to the circumstances in which the crime had been committed, the name of the accused, the parts played by them, the weapons which had been used as also the names of eye-witnesses. Where the parties are at logger-heads and there had bee instances which resulted in death of one or the other lodging of a First Information Report is always considered to be vital.—Ramesh Baburao Devaskar v.State of Maharashtra, 2008 Cri LJ 372 at 376 (C).

F.I.R.—Minor discrepancies—Effect of.—Police Officer, who had made endorsement and registered case had committed error. He instead of putting time 9.55 p.m. had written 9.55 a.m. He was rightly cautioned by Additional Sessions Judge for future. Such minor discrepancy shall not be fatal to prosecution.—Ranjan Saha v. State of Tripura, 2008 Cri LJ 214 (Gau) (Agartala Bench).

F.I.R.—Need not be encyclopedic.—Considering effect of some omissions in F.I.R. on part of informant, probable physical and mental condition of informant, could not be ignored.—Animireddy Venkata Ramana v. Public Prosecutor, H. C. of A. P., AIR 2008 SC 1603 : (2008) 5 SCC 368.

F.I.R.—Not ante time and ante date.—Informant alone had rushed to police station 9 Kms. away from the place of occurrence by bicycle and lodged written F.I.R. within 1-1/2 hours of incident. It was shown by his evidence that he took about 15-20 minutes to prepare his

report and nobody advised him in its preparation. Said version could not be disbelieved. Stating details of incident in written F.I.R. was nor unnatural or unusual. There was nothing artificial in F.I.R. It could not be said to be contrived one brought into existence after due deliberations. Moreover Inquest Report prepared later on refers to lodging of F.I.R. by informant. Mere fact that crime number is not mentioned in it was of no significance. Further there was arrest of one person from the place of occurrence at 3.00 P.M. by investigating officer in connection with another case. It would not militate against time of F.I.R. as shown in police papers. Held that F.I.R. was not ante time and ante dated.—Mahmood v. State of U.P., 2008 Cri LJ 696 (SC).

F.I.R.—Not necessary that it contains names of all accused persons.—The scheme of the Cr. P.C. makes it clear that once the information of the commission of an offence in received under Section 154 of the Code of criminal procedure, the investigation to have been involved in the commission of such offence. There is no hard and fast rule that the First Information Report must always contain the names of all persons who were involved in the commission of an offence. Every often the names of the culprits are not even mentioned in the F.I.R. and they surface only at the stage of the investigation.—State of Maharashtra v. Mohd. Sajid Husain Mohd. S. Husain, AIR 2008 SC 155 at 159 : (2008) 1 SCC 213.

F.I.R.—Plea of ante-timing—Timing when liable to be rejected.—Plea was based on delay of 4 days in sending special report to Magistrate. There was time of holding of inquest on dead bodies, removal of bodies to Police Head Quarter. Authorisation was given by D.M. to hold postmortem during night hours on same day. Plea of ante-timing was liable to be rejected due to spontaneity of F.I.R. Sarvesh Narain Shukla v. Daroga Singh, AIR 2008 SC 320.

F.I.R.—Rape case—Delay of one month 12 days in lodging complaint not fatal.—One does not expect victims to file complaint without loss of time. There was explanation by victims that they were put under threat by accused and they were told that if they reveal incident to anyone, they would be killed. In spite of it both victims went and informed matter to their mother and informed one Women’s organisation leader and after mustering of courage, finally lodged complaint in writing. Delay will not render prosecution case doubtful as it stood explained.—Santosh Moolya v. State, 2008 Cri LJ 3334 (Kar).

F.I.R.—Recording of.—Chapter XII of the Code of Criminal Procedure, 1973 deals with information to the police and their powers

to investigate. Investigation into allegations relating to commission of a cognizable offence starts on information given to an Officer-in-charge of a Police Station and recorded under Section 154 of the Code. If from information so received or otherwise, the officer-in-charge of the Police Station, if satisfied that such information discloses the commission of a cognizable offence, shall either investigate the case himself or direct the investigation to any police officer subordinate to him, in the manner provided by the Code. The procedure as regards the registration of information relating to the commission of a cognizable offence and the procedure for investigation is structured and regulated by Chapter XII of the Code. The procedure prescribed in required to be followed scrupulously by the Officer-in-charge of the Police Station. The Punjab Police Rules do not in any manner override the provisions of the Code of Criminal Procedure. The said rules are meant for the guidance of the Police officers in the State and supplement the provisions of the Code of Criminal Procedure but not supplant them. In Court’s considered opinion the truth and veracity of contents of the F.I.R. cannot in all cases be tested with a reference to the entries made in the police station daily diary which is maintained under the Punjab Police Rules. This available controversy need not detain us any further since it is well settled that even a defect, if any found in investigation, however, serious has no direct bearing on the competence or the procedure relating to the cognizance or the trial. Defect or procedural irregularity, if any, in investigation itself cannot vitiate and nullify the trial based on such erroneous investigation.—Paramjit Singh v. State of Punjab, AIR 2008 SC 441 at 446.

F.I.R.—Right of police to register in case of cognizable offence.—Although the officer in charge of a police station is legally bound to register a first information report in terms of Section 154 of the Code of Criminal Procedure, if the allegations made by them gives rise to an offence which can be investigated without obtaining any permission from the Magistrate concerned; the same by itself, however, does not take away the right of the competent officer to make a preliminary enquiry, in a given case, in order to find out as to whether the first information sought to be lodged had any substance or not.—Rajender Singh Katoch v. Chandigarh Administration, AIR 2008 SC 178 at 179 : 2008 Cri LJ 356.

F.I.R.—Sanction for prosecution in murder case.—F.I.R. was lodged against personnel of Assam Rifles. Previous sanction of Central Government as contemplated in Section 6 of Act was not required at the time of registration of F.I.R. It culled be obtained at the time of filing charge sheet or at the time of taking cognizance by concerned Court. Order refusing to quash F.I.R. for want of sanction was proper.

—Union of India v. State of Manipur, 2008 Cri LJ 32 (Gau) (Imphal Bench).

F.I.R.—Validity of.—Where F.I.R. was lodged promptly but there was failure to examine motorcyclist who had taken informant to police station on his motorcycle. it would not lead to conclusion that no F.I.R. was lodged by informant.—Manilal Hiraman Chaudhari v. State of Maharashtra, AIR 2008 SC 161.

F.I.R.—Validity if found truthful.—Once, however, a First Information Report is found to be truthful, only because names of some accused persons have been mentioned, against whom the prosecution was not able to establish its case, the entire prosecution case would not be thrown away only on the basis thereof.—Animireddy Venkata Ramana v. Public Prosecutor, H. C. of A. P., AIR 2008 SC 1603 at 1607 : (2008) 5 SCC 368.

Reliability of information not condition precedent for registration.—Police Officer was duty bound to register case on receiving information of cognizable offence. Reliability of information was not condition precedent for registration. Complaint disclosed offences under Sections 147, 148, 149, 448, 452, 323 and 395, IPC but FIR was registered by excluding offence under Section 395. Station House Officer had committed grave miscarriage of justice thereby. Defence of speedy trial was not tenable in such case.—Lallan Chaudhary v. State of Bihar, AIR 2006 SC 3376 : (2006) 12 SCC 229 : (2007) 1 SCC (Cri) 684 : 2006 (4) Crimes 164 : 2006 (8) SCJ 329 : 2006 AIOL 698.

F.I.R.—Whether ante dated or manufactured.—It was shown in formal F.I.R. that original written complaint/F.I.R. was received on 13.9.1990 at 4.05 p.m. Police Officer made endorsement on back of it that original written complaint was attached herewith. Endorsement of same Police Officer on reverse page or second page of original F.I.R. with his signature showed that he had received the same on 13.9.1990 at 4.05 p.m. Overwriting concerning date in local (language) in original complaint could not establish that F.I.R. was ante-dated, ante-timed and manufactured.—Ananta Deb Singha Mahapatra v. State of West Bengal, 2007 Cri LJ 1705 (Cal).

F.I.R.—Whether ante time and ante date.—Informant alone had rushed to police station 9 Kms. away from the place of occurrence by bicycle and lodged written F.I.R. within 1-1/2 hours of the incident. It was shown by his evidence that he too about 15-20 minutes to prepare his report and nobody advised him in its preparation. Said version could not be disbelieved. Stating details of incident in written F.I.R.

was nor unnatural or unusual. There was nothing artificial in F.I.R. It could not be said to be contrived one brought into existence after due deliberations. Moreover Inquest Report prepared later on referred to lodging of F.I.R. by informant. Mere fact that crime number was not mentioned in it was of no significance. Further arrest of one person from the place of occurrence at 3.00 P.M. by investigating officer in connection with another case would not militate against time of F.I.R. as shown in police papers. Held that F.I.R. was not ante time and ante dated.—Mahmood v. State of U.P., AIR 2008 SC 515.

Investigation—Validity of fresh investigation in successive complaints.—Petitioner was Chairman of Co-operative Bank. Complaint of misfeasance and malfeasance was filed by Bank against him and others. Investigation was conducted by C.B.I. Bank again had filed complaint against petitioner and others. Second investigation was directed against the petitioner. Order directing second investigation was not liable to be quashed. Since two sets of complaints pertained to cases concerning different parties and different branches of Bank. Offences complained of were also independent and distinct and not in the course of same transaction.—Rameshchandra Nandlal Parikh v. State of Gujarat, AIR 2006 SC 915 : 2006 Cri LJ 964 : 2006 (3) SCJD 405 : (2006) 1 SCC 732 : (2006) 1 SCC (Cri) 481 : 2006 AIOL 2003.

Maintainability of preliminary enquiry against member of Special Police Force (S.P.F.).—Preliminary enquiry against member of Special Police Force on basis of anonymous complaint alleging corrupt practice by him was permissible. There was no need to lodge FIR and initiate investigation process immediately upon receiving complaint. Whether to initiate investigation or not depends upon fact situation of each case.—Shashikant v. Central Bureau of Investigation, AIR 2007 SC 351 : (2007) 1 SCC 630 : (2007) 1 SCC (Cri) 406 : (2007) 49 AIC 292 : 2006 (11) Scale 272 : 2006 (9) JT 603 : 2007 (11) SCJD 434.

Murder case—Delay in lodging F.I.R.—Effect of.—Complaint was lodged after 8 days of occurrence. Complainant was discharged from hospital after first-aid on same day while deceased succumbed to him injuries. No reasonable and satisfactory explanation was given for abnormal delay. There was full scope for complainant to deliberate, consult, concoct and embellish story and rope in 7 members of one family as accused. Accused was entitled to be acquitted as delay in filing complaint was fatal to prosecution.—Munna v. State of Rajasthan, 2008 Cri LJ 3975 (Raj) (Jaipur Bench).

Non—Registration of complaint—Not proper.—It was alleged that accused persons college students had entered failed of complainant and spoiled standing crops therein by playing cricket and abused complainant in the name of caste. Investigation was made in pursuance of letter written by complainant to Chief Minister without registering crime and proceedings dropped. Whole procedure was illegal and unsustainable. Petition was allowed with cost of Rs. 10,000/-. Authorities were directed to register a case against accused and get same investigated by Sub-Divisional Police Officer and to protect land and also to pay compensation for the loss of crops.—Subba Rayudu v. Director General of Police, Hayderabad, 2007 Cri LJ 2462 (A. P.).

Permissibility of filing of successive F.I.Rs.—F.I.R. was lodged against accused persons under Sections 420 and 467, I.P.C. Basic allegations against accused was that they had forged general Power of Attorney and executed sale-deed on the basis thereof. These allegations were verbatim the same as allegations made in earlier F.I.R. Course adopted by police by registering second F.I.R. with regard to some facts and making fresh investigation thereof was not permissible. F.I.R. was liable to be quashed.—Jasjit Singh Bhasin v. State of Punjab, 2006 Cri LJ 2757 (P&H).

Quashing of FIR.—Allegations in FIR and accompanying materials may not constitute some of offences mentioned therein but would constitute some of offences mentioned in FIR or some other offences with which petitioners may be ultimately sent for trial by Investigating Agency. In such circumstances FIR was not liable to be quashed.—Achamma Chacko v. Government of Kerala, 2006 Cri LJ 4391 (Ker).

Rape of minor girl—Delay in lodging F.I.R.—Effect of.—Occurrence had taken place in the last week of July but F.I.R. was lodged on 6th August only when wife of accused had noticed blood-stains in garments of victim and she brought the matter to the notice of her mother. There was sufficient reason for delay considering facts and circumstances of case and particularly threat and fear perception which prevented victim from disclosing matter earlier. Prosecution case could not be rejected solely on ground of delay in lodging F.I.R.—Pradip Kumar Deb v. State of Tripura, 2007 Cri LJ 4407 (Gau) (Agartala Bench).

Recording of FIR mandatory.—The provision of Section 154 of the Code is mandatory and the concerned officer is duty bound to register the case on the basis of such an information disclosing cognizable offence.—Ramesh Kumari v. State (N.C.T. of Delhi), AIR 2006 SC 1322

at 1324 : 2006 Cri LJ 1622 : (2006) 2 SCC 670 : (2006) 1 SCC (Cri) 678.

Sanction for prosecution—Necessity of even against retired public servant.—Section 197 (1) provides that when any person who is or was a public servant not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction (a) in the case of a person who is employed of, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of the Union, of the Central Government, and (b) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of a State, or the State Government. We may mention that the Law Commission in its 41st Report in para 15.123 while dealing with section 197, as it then stood, observed :

“It appears to us that protection under the section in needed as much after retirement of the public servant as before retirement. The protection afforded by the section would be rendered illusory if it were open to a private person harbouring a grievance to wait until the public servant ceased to hold his official position, and then to lodge a complaint . The ultimate justification for the protection conferred by Section 197 is the public interest in seeing that official acts do not lead to needles or vexatious prosecution. It should be left to the Government to determine from that point of view the question for the expediency of prosecuting any public servant.”

It was in pursuance of this observation that the expression “was” came to be employed after the expression “is” to make the need for sanction applicable even in case where a retired pubic servant is sought to be prosecuted.—Raghunath Anant Govilkar v. State of Maharashtra, 2008 Cri LJ 2054 at 2058-2059 (SC).

Registration of crime—Against a person killed in encounter.—No crime could be registered under Section 307, IPC against a person killed in encounter. Cases are registered against dead person, under Section 307 of the IPC alleging that they attempted to murder by the police officials, during the operations. Such a course is totally impermissible. When even according to the report, the person is dead, the question of accusing him, of attempt to murder, does not arise. Further, any investigation into the question, as to whether the death of the person is on account of any indiscriminate use of weapons by the police, without any provocation and other related facts, cannot be

carried out, on the basis of a crime registered under Section 307, or the allegations, which are relevant to that provision. In fact, it would amount to contradiction in terms. Per L. Narasimha Reddy, J. (for himself and on behalf of Dr. G. Yethirajulu, J.) Bilal Nazki, J. (Contra).—Andhra Pradesh Civil Liberties Committee v. State of A.P., 2008 Cri LJ 402 (A.P.).

Registration of crime—On noticing death of an individual.—After noticing death of an individual it would not in variably result in registration of crime under Section 302. Particularly when no complaint was made attributing any specific acts against any person. Per L. Narasimha Reddy, J. (for himself and on behalf of Dr. G. Yethirajulu, J.) Bilal Nazki, J. (Contra).—Andhra Pradesh Civil Liberties Committee v. State of A. P., 2008 Cri LJ 402 (A.P.).

Telephonic information as F.I.R—Validity of.—Fact that police had received a telephonic information which regard to the alleged crime was not disputed. Investigating Officer did not treat it as F.I.R. on ground that many times the police receives false report over the telephone. Explanation offered by Investigating officer was reasonable for not treating the telephonic information as F.I.R.—Jagat Singh v. State of Rajasthan, 2008 Cri LJ 1744 (Raj) (Jaipur Bench).

Validity of F.I.R. in murder case.—Prosecution witness was alleged to have informed officer in charge of Police Station on telephone. Head constable stated that he had written down the same but then it must have been a cryptic report and only for purpose of visiting scence of occurrence. He as well as Investigating Officer did not say that it was a detailed report. In such circumstances another First Information Report which was a detailed one came to be recorded. No exception could be taken to the same being treated as First Information Report.—Vikram v. State of Maharashtra, AIR 2007 SC 1893.

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.

COMMENTS

Cognizance of offence—Without jurisdiction and liable to be set aside.—Complaint was filed alleging criminal intimidation under Section 506, I.P.C. which was non-cognizable offence. Police had investigated into case without having any order from competent Magistrate. Based on report of such an investigation order taking cognizance of offence was without jurisdiction and liable to be set aside.—Md. Makfur Rahman v. Md. Kajimul Hussain Baruah, 2007 Cri LJ 1536 (Gau).

Who could file application for investigation into non-cognizable case.—Application for investigation into non-cognizable case could be filed by complainant. Section 155 (2), Cr. P.C. does not provide that but for the Police Officer no other person could approach Magistrate for seeking his direction under aforesaid section.—Kunwar Singh v. State of U.P., 2007 Cri LJ 1364 (All).

156. Police officer’s 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.

(3) Any Magistrate empowered under Section 190 may order such an investigation as above-mentioned.

COMMENTS

Application for registration of FIR and investigation of case.—Where allegation in application prima facie made out commission of cognizable offence of serious nature. Magistrate would treat

application as complaint and register FIR.—Vishwanath v. State of U.P., 2009 Cri LJ 149 (All).

Application for transfer of investigation not allowed.—Issuance of notice in Form 95 by Magistrate was bassed on materials placed on record including final report filed by police. Complainant had refused to receive said notice. He could not contend thereafter that he had no knowledge of filing of final report by police before Magistrate. Application for transfer of investigation filed by complainant thereafter was not maintainable. If complainant was aggrieved by order of Magistrate, he ought to have filed either a revision or an appeal before superior Court.—V. R. Chelladurai v. T. Rajasekar, 2006 Cri LJ 4130 (Mad).

Criminal complaint alleging forgery disputed resolution—Writ petition against order directing investigation.—Complaint was lodged that accused had forged Resolution appointing him as Trustee of Trust Hospital. Writ petition was filed against order directing investigation. Direction was issued by the police to produce minutes book of meetings of Trust and disputed Resolution also challenged. High Court directed examination of minutes book and the Resolution by Expert. Subsequent classificatory order was passed by High Court limiting examination of minutes book to minutes of meeting in which disputed Resolution was adopted. order could not be assailed as restricting scope of examination of minutes book, on basis of facts revealed in civil suit filed against accused showing abundant instances of minutes book. As such, order was passed in proceedings arising out of criminal complaint alleging forgery of disputed Resolution.—Kishor Kirtilal Mehta v. Vijay Kirtilal Mehta, AIR 2008 SC 1667 : (2008) 3 SCC 404.

Defect in investigation—Trial on that basis not vitiated.—There was seizure of contraband opium from accused by Enforcement Officer of Central Narcotics Bureau. Crime report was registered by Enforcement Officer and investigation also carried by him. As seizure of opium was made in front of witnesses, hence, Enforcement Officer could not be found to be interested in case. Held that, Enforcement Officer being complainant, investigation carried out by him and trial on that basis was not vitiated.—Bhanwar Singh v. Union of India, 2006 Cri LJ 3585 (Raj).

Defects in investigation—Impact on prosecution case.—Where the investigation was not fool-proof but then defective investigation would not lead to total rejection of the prosecution case.—Rotash v. State of Rajasthan, 2007 Cri LJ 758 : 2007 (13) SCJD 371.

Exemption from personal appearance.—In a cruelty, hurt, criminal intimidation case, accused had not yet appeared before Trial Court and not prayed for exemption of attendance. No such order could be passed under Section 482, Cr.P.C. exempting attendance till framing of charge. Under Cr.P.C. accused had to apply for exemption of his attendance in concerned Court.—Laxman v. State of U.P., II (2006) DMC 442 (All).

F.I.R.—Contents of.—F.I.R. need not give every details of offence. It need not be encyclopedic.—Umar Mohammad v. State of Rajasthan, 2008 Cri LJ 816 (SC).

F.I.R.—Delay in Recording—Not always fatal to prosecution.—Murder took place at mid night. Place station was far off. Area was under flood. There was delay in recording F.I.R. and sending information to Magistrate. It had no impact on conviction. Moreover, when eye-witness had made vivid description of events which fits with medical evidence.—Silak Ram v. State of Haryana, AIR 2007 SC 2739 : 2007 Cri LJ 3760 : (2007) 10 SCC 464 : (2008) 1 SCC (Cri) 58.

FIR—Failure of police to investigate.—Complainant could lay complaint before Magistrate. Writ petition by complainant for direction to CBI to investigate was not tenable.—Hari Singh v. State of U.P., AIR 2006 SC 2464 : 2006 Cri LJ 3283 : 2006 (6) SCJD 648 : (2006) 5 SCC 733 : (2006) 3 SCC (Cri) 63 : 2006 AIOL 376.

Gang rape—Direction for investigation by C.B.I.—There was no circumstances existing to reckon case as rare or exceptional. Petitioner had not availed avenues of grievance redressal ordinarily available to her. mere inclusion of a prayer to direct investigation by CBI could not held the petitioner.—Sajina, T. v. State of Kerala, 2008 Cri LJ 2712 (Ker).

Information relating to commission of cognizable offence—Lodging of F.I.R. by officer incharge of Police Station.—Officer incharge of Police Station was statutorily bound to lodge F.I.R. Merely because order passed by Chief Judicial Magistrate in application under Section 156 (3) was set aside by revisional Court, power of police to investigate case could not be whittled away. It was hardly material from which source information relating to commission of cognizable offence w received by officer in-charge of police station. neither investigation nor charge sheet of that case would be vitiated on ground of lack of jurisdiction to Chief Judicial Magistrate, to pass order for the registration of case.—Hira Lal v. State of U.P., 2008 Cri LJ 113 (All).

Institution of second FIR for same incident.—Filing of second FIR was for same incident just to collect further evidence is illegal. If there was necessity, and sufficient as well as valid ground for further investigation, I.O. could make further investigation even after magistrate takes cognizance of offence on submission of charge-sheet.—Ramakant Singh v. State of Bihar, 2006 Cri LJ 4752 (Pat).

Investigation—Complaint under P. C. Act.—Special Judge could not direct to conduct “vigilance enquiry “or’ preliminary enquiry” by Vigilance and anti-corruption Bureau, VACB. He may or may not taken cognizance of offence under Section 190. But he could order investigation under Section 156 (3) by relevant officer of VACB. Held that on issuance of such order officer of VACB was bound to register F.I.R.—Madathil Markar Haji v. Vakkom B. Purushothaman, 2008 Cri LJ 742 (Ker).

Investigation—Direction issued by Magistrate for investigation by police not just and proper.—Order revealed that Magistrate had not gone through complaint. It showed non-application of mind by Magistrate. Directions issued by Magistrate for investigation by police were not just and proper.—Anil K. Khandelwal v. Maksud Saiyed, 2006 Cri LJ 3180 (Guj).

Investigation—Direction to initiate.—No judicial order can ever by passed by any court without providing a reasonable opportunity of being heard to the person likely to be affect by such order and particularly when such order results in drastic consequences of affecting ones one reputation. In Court’s view, the impugned order of the High Court directing enquiry and investigation into allegations in respect of which not even any complaint/information has been lodged with the police is violative of principles of natural justice. It is unnecessary to go into the question as to whether Divine Retreat Centre is not a person contemplated by Article 21 of the Constitution and express any opinion as to whether any right guaranteed by Article 21 of the Constitution has been infringed. Suffice it to note that, the Director of the appellant institution has been impleaded as a party respondent in the criminal petition and the whole of the allegations in the anonymous petition are levelled against the appellant and in such a situation it was imperative for the High Court to put the appellant on notice before passing the impugned order.—Divine Retreat Centre v. State of Kerala, 2008 Cri LJ 1891 at 1903 (SC) : (2008) 3 SCC 542.

Investigation—Effect of defect or procedural irregularity.—It is well settled that even a defect, if any, found in investigation, however, serious has no direct bearing on the competence or the procedure

relating to the cognizance or the trial. A defect or procedural irregularity, if any, investigation itself cannot vitiate and nullify the trial based on such erroneous investigation.—Paramjit Sigh v. State of Punjab, AIR 2008 SC 441 at 446.

Investigation—Entrustment to C.I.D.—Offence of cheating, criminal misappropriation etc. took place in several states. As Investigation Officer attached to one police station in State may feel handicapped in making investigation, hence, investigation was handed over to State C.B., C.I.D.—Asit Bhattacharjee v. Hanuman Prasad Ojha, AIR 2007 SC 1925 : (2007) 5 SCC 786 : (2007) 3 SCC (Cri) 31 : 2007 Cri LJ 3181.

Investigation—Evidentiary value of investigation by sniffer dog.—The law in this behalf, therefore, is settled that while the services of a sniffer dog may be taken for the purpose of investigation, its faculties cannot be taken as evidence for the purpose of establishing the guilt of an accused.—Dinesh Borthakur v. State of Assam, AIR 2008 SC 2205 at 2210 : (2008) 5 SCC 697.

Investigation—Field exclusively reserved for police.—The investigating of an offence is the field exclusively reserved for the police officers whose powers in that field are unfettered so long as the power to investigate into the cognizable offences is legitimately exercised in strict compliance with the provisions under Chapter XII of the Code. However we may hasten to add that unfettered discretion does not mean any unaccountable or unlimited discretion and act according to one’s own choice. The power to investigate must be exercised strictly on the condition of which that power is granted by the Code itself. The High Court in exercise of its inherent jurisdiction cannot change the Investigating Officer in the mid-stream and appoint any agency of its own choice to investigate into a crime on what soever basis and more particularly on the basis of complaints or anonymous petitions addressed to a named Judge. Such communication cannot be converted into suo motu proceedings for setting the law in motion. Neither the accused nor the complainant or informant are entitled to choose their own investigating agency to investigate a crime in which they any be interested.—Divine Retreat Centre v. State of Kerala, 2008 Cri LJ 1891 at 1900 (SC) : (2008) 3 SCC 542.

Investigation—Power of High Court to issue direction to police.—It is evident from Sections 154, 156 and 157 of the Code that even a police officer can act on the basis of information received or otherwise and proceed to investigate provided he has reason to suspect he commission of a cognizable offence which he is empowered to

investigate under Section 156 Cr.P.C. If the essential requirements of the penal provisions are not prima facie disclosed by a first information report and the police officer has no reason to suspect the Commission of a cognizable offence, no investigation can be undertaken by him based on the information received or otherwise. Can the High Court set the law in motion against the named and unnamed individuals based on the information received by its without recording the reasons that the information received by it prima facie disclosed the commission of a cognizable offence. Setting Criminal Law in motion is fraught with serious consequences, which cannot lightly be undertaken by the High Court even in exercise of its jurisdiction under article 226 of the Constitution of India. In our view, the High Court in exercise of its whatsoever jurisdiction cannot direct investigation by constituting a Special Investigation Team on the strength of anonymous petitions. The High Courts cannot be converted into station Houses.—Divine Retreat Centre v. State of Kerala, 2008 Cri LJ 1891 at 1903 (SC) : 2008) 3 SCC 542.

Investigation—Powers of Magistrate are wide.—Where proper investigation was conducted it may not be necessary or possible for the Magistrate to invoke the powers under Section 156 (3) to monitor, supervise or interfere with the investigation. But when a proper investigation was not done the Magistrate had jurisdictional competence to interfere with the investigation. The power under Section 156 (3), Cr. P.C. is wide enough to justify monitoring, supervision and even interference with the investigation in an appropriate case. The Magistrate could invoke their powers under Section 156 (1), Cr. P.C. to ensure that the grievances of persons like the petitioner-Complainant complaining improper investigation by Investigating Officer were redressed by Issuing appropriate directions.—Vasanthi Devi v. S. I. of Police, Kattakkada Police Station, 2008 Cri LJ 2359 (Ker).

Investigation—Powers of Magistrate under Section 156 (3).—Powers of Magistrate under Section 156 (3) could not be stretched beyond directing officer in charge of a police station to conduct investigation. Hence, Order of Magistrate directing CBI to register FIR and conduct investigation was liable to be set aside.—Central Bureau of Investigation v. The Joint Commissioner of Customs, IGI Airport, 2006 Cri LJ 2838 (Del).

Investigation—Power to order police investigation under Section 156 (3).—Power to order police investigation under Section 156 (3) Could be invoked by Magistrate before he takes cognizance of offence under Section 190.—Gangadhar Behera v. State of Orissa, 2008 Cri LJ 839 (Ori).

Investigation—Transfer of investigation from local police to CBCID.—No-objection issued by police officers on account of political interference without assigning valid reasons was improper.—Sandeep Kumar Yadav v. State of U.P., 2006 Cri LJ 3316 (All).

Investigation by police—Distinction between Section 156 and Section 202.—Investigation envisaged by Section 156 and by Section 202 if different. Investigation under Section Section 202 is of a limited nature. It is intended only for helping Magistrate to decide whether there was sufficient ground for him to proceed further.—Dilawar Singh v. State of Delhi, AIR 2007 (8) SCJ 37 :2007 (10) JT 585 : 2007 (3) Crimes 388 : 2007 (10) Scale 556 : 2007 (6) Supreme 153.

Investigation by police—Distinction between Section 156 and Section 202.—Chapter XII of the Cr. P.C. contains provisions relating to “information to the police and their powers to investigate”, whereas Chapter XV, which contains Section 202, deals with provisions relating to the steps which a Magistrate has to adopt while and after taking cognizance of any offence on a complaint. Provisions of the above two chapters deal with two different facets altogether, though there could be a common factor i.e. complaint lied by a person. Section 156, falling within Chapter XII deals with powers of the police officers to investigate cognizable offences. True, Section 202, which falls under Chapter XV, also refers to the power of a Magistrate to “direct an investigation by a police officer”. But the investigation envisaged in Section 202 is different from the investigation contemplated in Section 156 of the Cr. P.C. But a Magistrate need not order any such investigation if he proposes to take cognizance of the offence. Once he takes cognizance of the offence he has to follow the procedure envisaged in Chapter XV of the Cr. P.C. A reading of Section 202 (1) of the Cr. P.C. makes the position clear that the investigation referred to therein is of a limited nature. The Magistrate can direct such an investigation to be made either by a police officer or by any other person. Such investigation is only for helping the Magistrate to decide whether or not there is sufficient ground for him to proceed further. This can be discerned from the culminating words in Section 202 (1) i.e. The clear position therefore is that any judicial Magistrate, before taking cognizance of the offence, can order investigation under Section 156 (3) of 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 the police to start investigation it is open to the Magistrate to direct the police to register an FIR. There is nothing illegal in doing so. After all, registration of an FIR involves only the process of entering the substance of the information relating to the commission of the cognizable offence in a book kept by the officer in charge of the police

stating as indicated in Section 154 of Cr. P.C. Even if a Magistrate does not say in so many words while directing investigation under Section 156 (3) of the Cr. P.C. that an FIR should be registered, it is the duty of the officer in charge of the police station to register the FIR regarding the cognizable offence disclosed by the complaint because that police could take further steps contemplated in Chapter XII of the Cr. P.C. only thereafter.—Dilawar Singh v. State of Delhi, AIR 2007 SC 3234 at 3237, 3238 : 2007 (8) SCJ 37 : 2007 (10) JT 585 : 2007 (3) Crimes 388 : 2007 (10) Scale 556 : 2007 (6) Supreme 153.

Investigation by police—Propriety of.—A Magistrate could not interfere unless proper investigation is not being done by police. Person aggrieved by inadequate or improper investigation must be asked to seek his remedy under Section 156(3) with Magistrate. He could not knock doors of High Court at the first instance. Decision in Sakiri Vasu (2008 AIR SCW 309) is not in conflict with AIR 1970 SC 786, AIR 1980 SC 326 and AIR 1985 SC 195.—Sajina, T. v. State of Kerla, 2008 Cri LJ 2712 (Ker).

Investigation by State C.I.D.—Powers of Magistrate.— Investigation by State C.I.D. could not be directed by Magistrate in exercise of powers under Section 156(3). Magistrate is not empowered to direct investigation to police officer other than one attached to police station within his territorial jurisdiction.—State of Maharashtra v. Ibrahim A. Patel, 2008 Cri LJ 1496 (Bom).

Investigation for allegations of torture to wife against accused-husband and in-laws.—Application was filed under Section 156 (3) by father of victim filed before Magistrate for investigation. Facts and injury report had disclosed commission of cognizable offence. Refusal by Magistrate to direct police to register FIR was improper. Held that Magistrate had not only committed mis-carriage of justice but also given blow to person who was seeking justice from him.—Ravindra Singh v. State of U.P., 2006 Cri LJ 3325 (All).

Investigation of case and registration of F.I.R.—Proposed accused had no right to stop registration of FIR. Revision filed by him against order allowing the application under Section 156 (3) Cr. P.C. was not legally maintainable.—Ram Naresh Chaudhry v. State of U.P., 2008 Cri LJ 1515 (All).

Maintainability of revision.—Order was passed under Section 156 (3) for registering and investigating the case was interlocutory in nature. Order was not revisionable.—Gulista v. State of U.P., 2008 Cri LJ 1162 (All).

Maintainability of second FIR in respect of same incident.—There could not be two FIRs against the same accused in respect of same case. But when there were rival versions in respect of same episode, it would normally take shape of two different FIRs and investigation agency. There were two cross-cases. Cross-version was only an improvement of earlier version given in previous FIR. Registration of cross-case on basis of application under Section 156 (3) was improper. If applicant wanted to add something by way of giving additional facts of incident and felt that something was lacking in previous FIR, it was always open for him to say so in his statement before police during the course of investigation. But it will not entitled him to register a second FIR regarding same incident implicating the same accused.—Rajeev Kumar Singh v. State of U.P., 2006 Cri. L.J. 248 (All).

Narco analysis and Brain Mapping Test—Consent of subject at performance state not required.—The question of consent at the stage of conducting/performing the aforesaid two tests is not required to be considered. Conducting/performing of the aforesaid tests is a part of investigation and for the investigation by the Investigating Agency the consent of the accused is not required, otherwise the Investigating Agency will not be in a position to further investigate the case, if the consent of the accused is required. At this stage, it is also required to be noted that the accused has not allegedly come forward with the truth and therefore, scientific tests are resorted to by the Investigating Agency. When the accused/ person has not told the truth during the investigation, naturally, that accused/person would not be voluntarily giving consent for the aforesaid tests as he is always apprehensive that if the aforesaid two tests are conducted then the same might go against him therefore, he is bound to not give consent. Even it is not expected from a person/accused to give consent for the aforesaid two tests when he has not come forward with the truth. As stated above the aforesaid two tests are the scientific methods of investigation and are the part of investigation. There is no provision under the Criminal Procedure Code to have the consent of the accused before or during the investigation. It is also to be noted that before subjecting the accused to Narco Analysis Test his/her mental fitness will be ascertained and thereafter only accused will be subjected to Narco Analysis Test. The dosage level required to take a person to the hypnotic stage is found to be 3-4 times smaller than those required for stages beyond. Therefore, this low concentration of the drug used in the said test will not have any adverse effect on any system of the body. Necessary precautions are always taken by the medical experts at the time of examination and the doctors and anesthetists and the experts are present at the time of

conduction/performing such test.—Santokben Sharmanbhai Jadega v. State of Gujarat, 2008 Cri LJ 68 at 85 (Guj).

Narco Analysis Test and Brain Mapping Test—Validity of.—Plea that petitioner was charged with offences only for harbouring accused persons and therefore drastic tests of Narco Analysis and brain mapping were not required. Such plea could not be accepted when petitioner was charged with offence of harbouring accused persons who were charged with serious offences like rape and murder.—Santokben Sharmanbhai Jadeja v. State of Gujarat, 2008 Cri LJ 68 (Guj).

Narco Analysis Test and Brain Mapping Test—Would not amount to testimonial compulsion—Not violative of article 20 (3).—So far as Brain Mapping Test is concerned, it is also known as P-300 test. What is the brain mapping test is already discussed herein above. What is received at the conclusion of such test is indication of the fact that the accused or the suspect does have or is in possession of knowledge about the subject on which he was questioned. There is no verbal response from the witness. There is no statement coming out of this voluntarily test and the consequences which come out of such test is not a testament and therefore, there would not be far of Article 20(3) of the Constitution of India so far as Brain Mapping Test is concerned. Thus considering the various provisions under the Criminal Procedure Code right from Sections 156 to 159 and other related provisions, collection of evidence by the police officer is permitted under the law conducting the aforesaid tests on accused is to be considered as process of collection of such evidence by the Investigating Agency. The aforesaid two tests are scientific methods in furtherance of the investigation. The field of criminology has expended rapidly and new techniques and methods are used for committing the crimes and offences and the demand for supplemental methods of detecting deception and improving the efficiency of interrogation have increased concomitantly. Thus, aforesaid tests for criminal interrogation is a valuable technique which would help the Instigating agency to further investigate the crime when the investigating Agency finds itself clue less and there is no further headway in the investigation. The Investigating Agency to further investigate the crime through the aforesaid two tests would tantamount to interfere with the right of the investigating Agency to investigate the crime of which it is statutorily authorized.—Santokben Sharmanbhai Jadeja v. State of Gujarat, 2008 Cri LJ 58 at 83 (Guj).

Order of Magistrate directing investigation—Arrest of accused.—It was neither obligatory nor mandatory for a Police Officer to obtain the leave of the Court before arresting an accused against

whom FIR was registered in pursuance of the order passed by the learned Magistrate under Section 156 (3) of the Cr. P.C., 1973. Certainly, exercise of discretion by the arresting officer should be exercised with greater sensitivity and in accordance with the settled canon of criminal jurisprudence, while keeping the facts and circumstances of each case in mind. it must be remembered by the Investigation agencies that order under Section 156 (3) may be passed by the Court as a result of failure to perform its duty on the part of the investigating agencies. Once the section does not provide any such power to a Magistrate under these provisions to add such power by implication would not be in conformity with the basic rules of interpretation of statutes.—Laxminarayan Vishwanath Arya v. State of Maharashtra, 2008 Cri LJ 1 (Bom) (FB).

Police investigation—Permissible only for a cognizable offence.—It can thus be seen from conjoint reading of sub-section (1) and sub-section (3) of Section 156 of Cr. P.C., that an investigation under Section 156 (3) would be permissible only for a cognizable offence.—Swati Sachin Mahajan v. State of Maharashtra, 2007 Cri LJ 3645 at 3546 (Bom) (Aurangabad Bench).

Pre-cognizance stage maintainability of revision petition.—Order of magistrate directing registration of FIR and investigation of case was an interlocutory order. it was not amendable to revisional jurisdiction of High Court. Further, once accused could not be heard on the question of registration of FIR of cognizable offence against him he could not be heard on that question in revisional forum also.—Vanshu v. State of U.P., 2007 Cri LJ 4677 (All).

Reinvestigation or further investigation.—Accused had allegedly misappropriated amount invented by Complainant in business at his instance. After investigation, police submitted a final report praying for termination of proceeding. Magistrate had ordered further investigation. In revisional jurisdiction, High Court was only required to see whether Magistrate’s order directing ‘further investigation’ or ‘reinvestigation’ is mainfestly absurd or patently illegal or not. Magistrate had assigned reasons for directing reinvestigation/further investigation. It was proper.—Prabir Kumar Chatterjee v. State of West Bengal, 2008 Cri LJ 841 (Cal).

Revision against order directing investigation.—Order of Magistrate directing officer in charge of police station for investigation and submission of final form before taking cognizance was not in nature of final order. Revision was not maintainable.—Gangadhar Behera v. State of Orissa, 2008 Cri LJ 839 (Ori).

Right to speedy trial extends to all criminal prosecutions—Actual proceedings in Court as well as to police investigations.—It is, therefore, well settled that the right to speedy trial in all criminal persecutions in an inalienable right under Article 21 of the Constitution. This right is applicable not only to the actual proceedings in court but also includes within its sweep the proceeding police investigations as well. The right to speedy trial extends equally to all criminal persecutions and is not confined to any particular category of cases. In every case, where the right to speedy trial is alleged to have been infringed, the court has to perform the balancing act upon taking into consideration all the attendant circumstances, enumerated above, and determine in each case whether the right to speedy trial has been denied in a given case. Where the court comes to the conclusion that the right to speedy trial of an accused has been infringed, the charges or the conviction, as the case may be, maybe quashed unless the court feels that having regard to the nature of offence and other relevant circumstances, quashing of proceedings may not be in the interest of justice. In such a situation, it is open to the court to make an appropriate order as it may deem just and equitable including fixation of tie for conclusion of trial.—Pankaj Kumar v. State of Maharashtra, 2008 Cri LJ 3944 at 3949 (C).

Territorial jurisdiction for registration of crime/complaint.— Territorial jurisdiction of a police station for the purpose of investigation is co-extensive with that of appropriate Court which was competent to try offence. Complaint was lodged alleging commission of a cognizable offence made before Station House Officer of Police Station not have territorial jurisdiction over of place of crime. Said SHO instead of recording information contained in complaint and transferred the same to police Station having jurisdiction arrogating to himself power of investigation which he did not possess. Moreover, after illegally commencing an investigation without jurisdiction police was committing another illegal act of recording a further statement evidently with a view to clothe the said police with jurisdiction to continue investigation. Accused was entitled to discharge due to case of total lack of jurisdiction.—T. P. Nandakumar v. State of Kerala, 2008 Cri LJ 298 (Ker).

Unnatural death—With petition praying for investigation by C.B.I.—Deceased and his wife had drawn attention of various police stations apprehending threats with direct consequences to them. But no protection was given by police. Death of deceased had permanently deprived mother of right to live happy life with her son. Comments made by Police Commissioner on cause and nature of death prima facie, had every likelihood of prejudicing any enquiry into cause of death Prima facie case was made out for directing investigation by

CBI as investigation carried out by CID was not in accordance. with provisions of code.—Kishwar Jahan v. State of W. B., 2008 Cri LJ 1766 (Cal).

Validity of order as to investigation by CBI.—There was complaint of demand of bribe against Deputy Chief Minister. But investigation conducted by police so far made out no prima facie case against Deputy Chief Minister. Police was directed to continue with ongoing investigation and file a report within three months.—Indian Hotel & Restaurants Association (AHAR) v. State of Maharashtra, AIR 2006 (NOC) 901 (Bom) : 2006 (3) AIR-Bom R 754.

157. 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.

[70][Provided further that in relation to an offence of rape, the recording of statement of the victim shall be conducted at the residence of the victim or in the place of her choice and as far as practicable by a woman police officer in the presence of her parents or guardian or near relatives or social worker of the locality.]

(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.

COMMENTS

Murder—Effect of defective investigation.—Defective investigation would not deter Court from convicting accused if Court found that de hors the defects accused could still be convicted on basis of evidence on record.—Kishore Shinde v. State of Maharashtra, 2006 Cri LJ 2618 (Bom).

Police investigation—Procedure for.—There were blood stains on incriminating articles. It will serve as corroborative piece of evidence to prove guilt of accused. It was necessary for I.O. to send blood stained articles and also blood sample of person with whom blood stains on articles was to be connected. Lop sided investigation had virtually rendered a valuable scientific corroborative evidence incomplete and ineffective. Home Secretary and Director General of Police was directed to issue necessary instructions to Superintendent of Police of the Districts and S.H.Os. of the police stations for strict compliance of procedure regarding blood stained articles. It was further directed that Police Manual should be suitably amended.—B. Vishwanath v. State, 2007 Cri LJ 1994 (Kant).

Requirement as to sending intimation of offence to Magistrate.—No objection was raised during trial that intimation of offence was not sent to concerned Magistrate. In the absence of cross-examination of Investigating Officer on behalf of accused in this regard, presumption was that such official act was performed by police. Held that accused could not be benefited on this count.—Ganesha v. State of Madhya Pradesh, 2006 Cri LJ 3604 (MP).

Sending Special report to Magistrate—Time required by Station House Officer after recording F.I.R.—It is not possible to lay down any universal rule as to within what time the special report is required to be despatched by the Station House officer after recording the FIR. Each case turns on Its own facts.—Mahmood v. State of U.P., AIR 2008 SC 515 at 518 : 2008 Cri LJ 696.

158. Report how submitted.—(1) Every report sent to a Magistrate under Section 157 shall, if the State Government so directs, be submitted through such superior officer of police as the State Government, by general or special order, appoints in that behalf.

(2) Such superior officer may give such instructions to the officer-in- charge of the police station as he thinks fit, and shall, after recording such instructions on such report, transmit the same without delay to the Magistrate.

159. Power to hold investigation or preliminary inquiry.— Such Magistrate on receiving such report, may direct an investigation or, if he thinks fit, at once proceed, or depute any Magistrate subordinate to him to proceed, to hold a preliminary inquiry into, or otherwise to dispose of, the case in the manner provided in this Code.

COMMENTS

Delay in completion in investigation of cognizable offence not proper.—There was investigation of dual murders and sexual abuse of girls at “Dera Sachha Sauda’’, Sirsa by CBI. Shortage of manpower and hostility and non-cooperation of followers of Dara were causing delay and slow progress of investigations. Concerned persons were directed to make efforts to ensure that process of law is not stalled by act of their followers. Government should take firm steps to remove hurdles created in investigation. CBI was directed to submit monthly progress report to Court.—Court on its own motion v. State of Haryana, 2006 Cri LJ 3472 (P&H).

Power to hold investigation or preliminary enquiry.—Section 159 confers power on Magistrate to conduct an enquiry and not any local inspection. Further when case was exclusively triable by Court of Session. Duty of Magistrate was to verify whether Investigating Officer had complied with legal requirement and then commit the case to Court of Session. Magistrate could not add a party at this stage.—In the matter of : M. K. Thomas, 2006 Cri LJ 3843 (Ker).

160. Police officer’s power to require attendance of witnesses.— (1) 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 :

Provided that no male person under the age of fifteen years or woman shall be required to attend at any place other than the place in which such male person or woman resides.

(2) 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 under sub-section (1) at any place other than his residence.

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.

(2) 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.

(3) The police officer may reduce into writing any statement made to him in the 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.

[71][Provided that statement made under this sub-section may also be recorded by audio-video electronic means.]

COMMENTS

Evidentiary value of statement under Section 161.—It could only be used for purpose of contradiction and not for corroboration.—Parimal Gowala v. State of Tripura, 2007 Cri LJ 2394 (Gau) (Agartala Bench).

Non-recording of statements of witnesses by police—Effect of.—Witnesses were not to actual ocurrence but were witnesses of dying declaration and of certificate given by doctor regarding mental condition of deceased. No plea was taken by accused that dying declaration was not immediately sent to Court of concerned magistrate or that its copy was not given to him in accordance with Section 207 Cr. P.C. before the commitment of case. Held, that mere fact that Investigating Officer did not record statement of aforesaid witnesses under Section 161 Cr. C.P. could hardly have any bearing.—Dayal Singh v. State of Maharashtra, 2007 Cri LJ 3265 (SC).

Statement of witnesses—Accused entitled to its production.— Accused entitled to prosecution of statement to ensure fair trial of witnesses. Withholding such statements because they did not support prosecution was violative of Article 21.—Angadh Rohidas Kadam v. State of Maharashtra, 2007 Cri LJ 1772 (Bom) (Aurangabad Bench).

Statement of witnesses recorded during investigation—Privilege in respect of such statement.—Statement of witnesses recorded during investigation does not include interpretation of Investigating Officer of the statements or gists of statements recorded under Section 172. Direction to supply ‘gist’ if it constitutes statement recorded under Section 161 was unsustainable.—State of NCT of Delhi v. Ravi Kant Sharma, AIR 2007 SC 1135 : (2007) 2 SCC 764 : (2007) 1 SCC (Cri) 640 : 2007 Cri LJ 1674.

Statement recorded by police during investigation— Admissibility in evidence.—Bar of Section 162 Cr. P.C. of proving the statement recorded by the police officer of any person during investigation however shall not apply to any statement failing within the provision of clause (1) of Section 32 of the Evidence Act, nor it shall affect Section 27 of the Evidence Act. Bar of Section 162 Cr. P.C. is in regard to the admissibility of the statement recorded of a person by the police officer under Section 161 Cr. P.C. and by virtue of Section 162 Cr. P.C. would be applicable only where such statement is sought to be used at any inquiry or trial in respect of any offence under investigation at the time when such statement was made.—Vinay D. Nagar v. State of Rajasthan, 2008 Cri LJ 1907 at 1911 (SC) : (2008) 5 SCC 597.

Statement under Section 161—Evidentiary value.—Contents of spot map was prepared by police at the instance of a witness. It would be considered as the statement of witness recorded under Section 161. Merely by exhibiting the map by investigating officer, its contents would not become admissible in evidence. Contents of map could be used for impeaching the testimony of witness.—Narayan v. State of M.P., 2008 Cri LJ 1657 (M.P.) (Indore Bench).

Statement under Section 161 (3)—Evidentiary value of.—Statement recorded earlier under Section 161 (3), Cr. P.C. could not be used for any other purposes other than for contradiction during the course of examination of witnesses. Though there was omission to the effect that witness did not state in his earlier statement recorded under Section 161 (3) that accused led witnesses to place of occurrence. But same had been corroborated by evidence of Investigating Officer and other witnesses. Such omission was neither vital nor capable enough of demolishing or establishing the evidence of witnesses.—Referring Officer, the VIth Addl. Dist. and Session Judge (Fast Track Court), Tirupathi v. Chintapudi Kishore, 2008 Cri LJ 590 (A.P.)

162. Statements to police not to be signed : Use of statements in evidence.—(1) 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 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 inquriy or trial in respect of any offence under investigation at the time when such statement was made :

Provided that when any witness is called for the prosecution in such inquiry or trial whose statement has been reduced in writing as aforesaid, any part of his statement, if duly proved, may be used by the accused, and with the permission of the Court by the prosecution to contradict such witness in the manner provided by Section 145 of the Indian Evidence Act, 1872 (1 of 1872) ; and when any part of such statement is so used, 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.

(2) Nothing in this section shall be deemed to apply to any statement falling within the provisions of clause (1) of Section 32 of the Indian Evidence Act, 1872 (1 of 1872), or to affect the provisions of Section 27 of that Act.

Explanation—An omission to state a fact or circumstance in the statement referred to in sub-section (1) may amount to contradiction if the same appears to be significant and otherwise relevant having regard to the context in which such omission occurs and whether any omission amounts to a contradiction in the particular context shall be a question of fact.

COMMENTS

Statement before police—Admissibility of.—It was the stand of accused that deceased had put himself on fire and he actually took him to the hospital. Statements were made by deceased to doctors that deceased voluntarily told each of them that he had set himself on fire. One police official was present when statement was made by the deceased. But, large number of relatives of deceased more particularly, witness who had taken him to hospital were also present. Statement before the doctors could not be discarded as not voluntary.—S. Panneerselvam v. State of Tamil Nadu, 2008 Cri LJ 3531 (SC).

Statement of witnesses made to police—Use of.—Written statement of eye witness was allegedly given to police during investigation but not produced at the time of submission of charge-sheet along with other police papers. There is no legal bar against

accepting such document even at the later stage of the trial if the matter of delay was satisfactorily explained by the prosecution.—Ashok Kumar Rout v. State of Bihar, 2006 Cri LJ 3362 (Pat).

Statement to police—Bar of Section 162 for accepting contents of F.I.R.—In case of dacoity with murder, even if contents of F.I.R. were disregarded and only evidence of eye-witnesses were taken note of, evidence of informant showed that she had recognised accused persons.—Naresh Das v. State of Tripura, 2007 Cri LJ 2269 (Gau).

163. No inducement to be offered.—(1) No police officer or other person in authority shall offer or make, or cause to be offered or made, any such inducement, threat or promise as is mentioned in Section 24 of the Indian Evidence Act, 1872 (1 of 1872).

(2) But no police officer or other person shall prevent, by any caution or otherwise, any person from making in the course of any investigation under this Chapter any statement which he may be disposed to make of his own free will :

Provided that nothing in this sub-section shall affect the provisions of sub-section (4) of Section 164.

164. Recording of confessions and statements.—(1)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 :

[72][Provided that 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 :

Provided further that 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.]

(2) The Magistrate shall, before recording any such confession, explain to the person making it that he is not bound to make a confession and that, if he does so, it may be used as evidence against him ; and the Magistrate shall not record any such confession unless, upon questioning the person making it, he has reason to believe that it is being made voluntarily.

(3) 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.

(4) Any such confession 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) A.B.,

Magistrate”.

(5) 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.

(6) 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.

STATE AMENDMENTS

Andaman, Nicobar and Lakhadweep Islands.—[Amended by Code of Criminal Procedure (Amendment) Regulation No. 1 of 1974, Section 5(a) (w.e.f. 30.3.1974).]

After sub-section (1) of Section 164, the following sub- section shall be inserted, namely :—

“(1-A) Where, in any island, there is no Judicial Magistrate for the time being, and the State Government is of opinion that it is necessary and expedient so to do that Government may, after consulting the High Court, specially empower any Executive Magistrate (not being a

police officer), to exercise the powers conferred by sub-section (1) on a Judicial Magistrate, and thereupon references in Section 164 to a Judicial Magistrate shall be construed as references to the Executive Magistrate so empowered.”

COMMENTS

Confessional statement under Section 164—Validity of recording of.—Magistrate neither gave any reasonable time for reflection nor put his signature in the voluntary statements of appellants-respondents so recorded by him. As confessional statements so recorded dehors statutory provision of Section 164 could not be accepted, hence, conviction of accused under Section 302 of I.P.C. solely on the basis of such confessional statements was not proper.—Sankhi Chiba v. State of Arunachal Pradesh, 2008 Cri LJ 1734 (Gau).

Confession—Procedure for recording of.—Magistrate gave enough time to accused to reflect before making any confession. Magistrate had also cautioned accused that he was not bound to make a confession and if he made any confession it might be used in evidence against him. It was shown by memoranda appended to confession that Magistrate had complied with all statutory requirements prescribed under Sections 164 (2) and (4). Defect, if any, in the memorandum was one of form but not of substance. Plea that said confession was inadmissible in evidence was not tenable.—State of Assam v. Anupam Das, 2008 Cri LJ 1276 (Gau).

F.I.R.—Delay in murder case—When not fatal.—Informant, wife of accused, her mother and one more lady only were present in the house at time of incident. Incident had arisen out of quarrel between accused and his wife and mother-in- law. Accused had inflicted fatal blows on mother-in-law. None from the locality came to their rescue on hearing hue and cry. Ladies got frightened and went to father’s place to inform him. As father came late at night, hence, F.I.R. was lodged on the next day. There was no unexplained delay.—Gurdev Raj v. State of Punjab, 2008 Cri LJ 382 (SC).

F.I.R.—Purported entry in general diary not produced—Effect of.—It is not treated to be a First Information Report. Only because some esquires had been made before recording FIR. Same by itself would not vitiate entire trial. Enquiries were required to be made to ascertain truth or otherwise of incident and secondly to apprehend the accused persons.—Animireddy Venkata Ramana v. Public Prosecutor, H. C. of A.P., AIR 2008 SC 1603 : (2008) 5 SCC 368.

Investigation—Validity of investigation being transferred from one police Station to another.—Although transfer from one police station to other is within the power of statutory authority, yet, Courts have lifted power to interfere. Complaint was filed in police station having jurisdiction to investigate. but there was transfer by High Court at initial stage and with undue haste. Such order was liable to be set aside. Fact that charge sheet was submitted could be no ground to refuse interference under Article 136 of Constitution.—Naresh Kavarchand Khatri v. State of Gujarat, AIR 2008 SC 2180.

Judicial confession—Procedure for recording of—Curability of irregularity.—Certificate was appended to statement, by Magistrate that statement was made voluntarily though he had failed to record question as to whether there was any pressure on her to give such statement. But, defect was cured as Magistrate stated in his evidence before Court that he had asked such question to her and there was nobody else present in room while statement was recorded. Held, that confessional statement recorded according to procedure set out in Section 164 read with Section 281 was admissible in evidence.—Ram Singh v. Sonia, AIR 2007 SC 1218 : (2007) 1 SCC 1 : (2007) 2 SCC (Cri) 1 : 2007 Cri LJ 1642.

Judicial confession—Recording of—No conviction on confessional statement inconsistent with prosecution case.—Accused was alleged to be involved in rape and murder case. He had made confession of series of offences. Two confessions were recorded one after another in quick succession. First confession was recorded in just 15 minutes. No legal aid was provided to accused. Confessional statement was inconsistent with prosecution case. Conviction could not be based on such confession as there was no other material to establish guilt of accused.—Babubhai Udesinh Parmar v. State of Gujarat, AIR 2007 SC 420 : (2006) 12 SCC 268 : (2007) 1 SCC (Cri) 702 : 2007 Cri LJ 786 : 2007 (12) SCJD 204.

Recording of confessional statement.—Adminstration of oath itself would make a confessional statement totally inadmissible in evidence in view of mandatory provision of Article 20 (3) of the Constitution of India and also in view of the provision of Section 281 of the Cr.P.C. Court was of the firm opinion that such confessional statement cannot be acted upon to support the prosecution case.—Jayanti Bhattacharya v. State of West Bengal, 2006 Cri LJ 3414 (Cal).

Recording of confession—Oath administered to accused not proper.—While recording confession, oath administered to accused while recording confession was not proper as taking of a statement of an accused on oath is prohibited.—Babubhai Udesinh Parmar v. State

of Gujarat, AIR 2007 SC 420 : (2006) 12 SCC 268 : (2007) 1 SCC (Cri) 702 : 2007 Cri LJ 786 : 2007 (12) SCJD 204.

Recording of judicial confession—Safeguards should be complied with in letter and spirit.—Section 164 provides for safeguards for an accused. The provisions contained therein are required to be strictly complied with. But, it does not envisage compliance of the statutory provisions in a routine or mechanical manner.—Babubhai Udesinh Parmar v. State of Gujarat, AIR 2007 SC 420 : (2006) 12 SCC 268 : (2007) 1 SCC (Cri) 702 : 2007 Cri LJ 786 : 2007 (12) SCJD 204.

Recording of statement of victim—Procedure for.—Victim girl was recovered from the clautches of accused of offence under Sections 363, 366, I.P.C. Her statement under Section 164 has to be recorded after influence of inducement, threat or promise of accused has vanished. Statement recorded within fifteen days from date of recovery could not be said to be free from inducement, threat or promise extended by accused. Held that such statement could not be made basis for custody of prosecutrix.—Qutbun Nisha v. State of U.P., 2008 Cri LJ 3233 (All) (Lucknow Bench).

[73][164-A. Medical examination of the victim of rape.—(1) Where, during the stage when an offence of committing rape or attempt to commit rape is under investigation, it is proposed to get the person of the woman with whom rape is alleged or attempted to have been committed or attempted, examined by a medical expert, such examination shall be conducted by a registered medical practitioner employed in a hospital run by the Government or a local authority and in the absence of such a practitioner, by any other registered medical practitioner, with the consent of such woman or of a person competent to give such consent on her behalf and such woman shall be sent to such registered medical practitioner within twenty-four hours from the time of receiving the information relating to the commission of such offence.

(2) The registered medical practitioner, to whom such woman is sent shall, without delay, examine her person and prepare a report of his examination giving the following particulars, namely :—

(i) the name and address of the woman and of the person by whom she was brought ;

(ii) the age of the woman ;

(iii) the description of material taken from the person of the woman for DNA profiling ;

(iv) marks of injury, if any, on the person of the woman ;

(v) general mental condition of the woman ; and

(vi) other material particulars in reasonable detail.

(3) The report shall state precisely the reasons for each conclusion arrived at.

(4) The report shall specifically record that the consent of the woman or of the person competent to give such consent on her behalf to such examination had been obtained.

(5) The exact time of commencement and completion of the examination shall also be noted in the report.

(6) The registered medical practitioner shall, without delay forward the report to the investigation officer who shall forward it to the Magistrate referred to in Section 173 as part of the documents referred to in Clause (a) of sub-section (5) of that section.

(7) Nothing in this section shall be construed as rendering lawful any examination without the consent of the woman or of any person competent to give such consent on her behalf.

Explanation.—For the purposes of this section, “examination” and “registered medical practitioner” shall have the same meanings as in Section 53.]

165. Search by police officer.—(1) Whenever an officer in charge of a police station or a police officer making an investigation has reasonable grounds for believing that anything necessary for the purposes of an investigation into any offence which he is authorised to investigate may be found in any place within the limits of the police station of which he is in charge, or to which he is attached, and that such thing cannot in his opinion be otherwise obtained without undue delay, such officer may, after recording in writing the grounds of his belief and specifying in such writing, so far as possible, the thing for which search is to be made, search, or cause search to be made, for such thing in any place within the limits of such station.

(2) A police officer proceeding under sub-section (1), shall, if practicable, conduct the search in person.

(3) If he is unable to conduct the search in person, and there is no other person competent to make the search present at the time, he may, after recording in writing his reasons for so doing, require any officer subordinate to him to make the search, and he shall deliver to such subordinate officer an order in writing, specifying the place to be searched, and so far as possible the thing for which search is to be made ; and such subordinate officer may thereupon search for such thing in such place.

(4) The provisions of this Code as to search-warrants and the general provisions as to searches contained in Section 100 shall, so far as may be, apply to a search made under this section.

(5) Copies of any record made under sub-section (1) or sub- section (3) shall forthwith be sent to the nearest Magistrate empowered to take cognizance of the offence, and the owner or occupier of the place searched shall, on application, be furnished, free of cost, with a copy of the same by the Magistrate.

166. When officer in charge of police station may require another to issue search-warrant.—(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 a 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.

(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 under sub-section (1) 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 under this Chapter to search, or cause to be searched, any place in the limits of another police station, in accordance with the provisions of Section 165, as if such place were within the limits of his own police station.

(4) Any officer conducting a search under sub-section (3) shall forthwith send notice of the search to the officer in charge of the police station within the limits of which such place is situate, and shall also send with such notice a copy of the list (if any) prepared under

Section 100, and shall also send to the nearest Magistrate empowered to take cognizance of the offence, copies of the records referred to in sub-sections (1) and (3) of Section 165.

(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 under sub-section (4).

[74][166-A. Letter of request to competent authority for investigation in a country or place outside India.—(1) Notwithstanding anything contained in this Code, 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 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 under sub-section (1) shall be deemed to be the evidence collected during the course of investigation under this Chapter.

166-B. Letter of request from a country or place outside India to a Court or an authority for investigation in India.—(1) Union 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 or Judicial Magistrate as he may appoint in this behalf, who shall 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.

(2) All the evidence taken or collected under sub-section (1), 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.]

167. Procedure when investigation cannot be completed in twenty-four hours.—(1) Whenever any person is arrested and detained in custody, and it appears that the investigation cannot be completed within the period of twenty-four hours fixed by Section 57, and there are grounds for believing that the accusation or information is well-founded, the officer incharge of the police station or the police officer making the investigation, if he is not below the rank of sub-inspector, shall forthwith transmit to the nearest Judicial Magistrate a copy of the entries in the diary hereinafter prescribed relating to the case, and shall at the same time forward the accused to such Magistrate.

(2) The Magistrate to whom an accused person is forwarded under this section may, whether he has or has no jurisdiction to try the case, from time to time, authorise the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole ; and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction :

Provided that—

[75][(a) the Magistrate may authorise the detention of the accused person, otherwise than in the custody of the police, beyond the period of fifteen days, if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this paragraph for a total period exceeding,—

(i) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years ;

(ii) sixty days, where the investigation relates to any other offence,

and, on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this sub-section shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter ;

[76][(b) no Magistrate shall authorise detention of the accused in custody of the police under this section unless the accused is produced before him in person for the first time and subsequently every time till the accused remains in the custody of the police but the Magistrate may extend further detention in judicial custody on production of the accused either in person or through the medium of electronic video linkage.]

(c) no Magistrate of the second class, not specially empowered in this behalf by the High Court, shall authorise detention in the custody of the police.

[77][Explanation I.—For the avoidance of doubts, it is hereby declared that, notwithstanding the expiry of the period specified in paragraph (a), the accused shall be detained in custody so long as he does not furnish bail.]

[78][Explanation II.—If any question arises whether an accused person was produced before the Magistrate as required under clause (b), the production of the accused person may be proved by his signature on the order authorising detention or by the order certified by the Magistrate as to production of the accused person through the medium of electronic video linkage, as the case may be.]

[79][Provided further that in case of woman under eighteen years of age, the detention shall be authorised to be in the custody of a remand home or recognised social institution.]

[80][(2-A) Notwithstanding anything contained in sub-section (1) or sub- section (2), the officer incharge of the police station or the police officer making the investigation, if he is not below the rank of a sub-inspector, may, where a Judicial Magistrate is not available, transmit to the nearest Executive Magistrate, on whom the powers of a Judicial Magistrate, or Metropolitan Magistrate have been conferred, a copy of the entry in the diary hereinafter prescribed relating to the case, and shall, at the same time, forward the accused to such Executive Magistrate, and thereupon such Executive Magistrate may, for reasons to be recorded in writing, authorise the detention of the accused person in such custody as he may think fit for a term not exceeding seven days in the aggregate ; and, on the expiry of the

period of detention so authorised, the accused person shall be released on bail except where an order for further detention of the accused person has been made by a Magistrate competent to make such order ; and, where an order for such further detention is made, the period during which the accused person was detained in custody under the orders made by an Executive Magistrate under this sub-section, shall be taken into account in computing the period specified in paragraph (a) of the proviso to sub-section (2) :

Provided that before the expiry of the period aforesaid, the Executive Magistrate shall transmit to the nearest Judicial Magistrate the records of the case together with a copy of the entries in the diary relating to the case which was transmitted to him by the officer incharge of the police station or the police officer making the investigation, as the case may be.]

(3) A Magistrate authorising under this section detention in the custody of the police shall record his reasons for so doing.

(4) Any Magistrate other than the Chief Judicial Magistrate making such order shall forward a copy of his order, with his reasons for making it, to the Chief Judicial Magistrate.

(5) If in any case triable by a Magistrate as a summons-case, the investigation is not concluded within a period of six months from the date on which the accused was arrested, the Magistrate shall make an order stopping further investigation into the offence unless the officer making the investigation satisfies the Magistrate that for special reasons and in the interests of justice the continuation of the investigation beyond the period of six months is necessary.

(6) Where any order stopping further investigation into an offence has been made under sub-section (5), the Sessions Judge may, if he is satisfied on an application made to him or otherwise, that further investigation into the offence ought to be made, vacate the order made under sub-section (5) and direct further investigation to be made into the offence subject to such directions with regard to bail and other matters as he may specify.[81]

STATE AMENDMENTS

Andaman, Nicobar and Lakshadweep Islands.—[Amended by Regulation No. 1 of 1974, Section 5 (w.e.f. 30.3.1974)].

In Section 167—

(i) in sub-section (1), after the words “nearest Judicial Magistrate”, the words “or, if there is no Judicial Magistrate in an Island, to an Executive Magistrate functioning in that Island” shall be inserted ;

(ii) after sub-section (1), the following sub-section shall be inserted namely :—

“(1-A) Where a copy of the entries in diary is transmitted to an Executive Magistrate, references in Section 167 to a Magistrate shall be construed as references to such Executive Magistrate ;”

(iii) to sub-section (3), the following proviso shall be added, namely :—

“Provided that no Executive Magistrate, other than the District Magistrate or Sub-Divisional Magistrate, shall, unless he is specially empowered in this behalf by the State Government, authorise detention in the custody of the police.”

(iv) to sub-section (4), the following proviso shall be added, namely :—

“Provided that, where such order is made by an Executive Magistrate, the Magistrate making the order shall forward a copy of the order, with his reasons for making it, to the Executive Magistrate to whom he is immediately subordinate.”

Chhattisgarh.—(1) In Clause (b) of sub-section (2) of Section 167 of the Principal Act, the following new sub-clause (bb) shall be added namely :—

“(bb) No Magistrate shall authorise detention of the accused person other than in the custody of the police under this section unless the accused is produced before him either in person or through the medium of electronic video linkage and represented by the pleader in the Court.”

(2) In Explanation II, after words “was produced” the words “form police custody” shall be added.

(3) After Explanation II, the following new Explanation shall be added.

“Explanation III.—If any question arises whether an accused person was produced from otherwise than in the custody of the police in person or (as the case may be) through medium of electronic video linkage before the Magistrate as required under paragraph (bb), the production of the accused person may be proved by his or his

pleader’s signature on the order authorising detention.” [Vide, Chhattisgarh Act 13 of 2006, Section 3.]

Gujarat.—[Amended by President Act No. 21 of 1976, Code of Criminal Procedure (Gujarat Amendment) Act, 1976, Section 2].

In the proviso to sub-section 2 of Section 167 in its application to the State of Gujarat—

(i) for paragraph (a), the following paragraph shall be substituted, namely :—

“(a) the Magistrate may authorise detention of the accused person otherwise than in the custody of the police, beyond the period of fifteen days, if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this section for a total period exceeding—

(i) one hundred and twenty days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years ;

(ii) sixty days, where the investigation relates to any offence, and on the expiry of the said period of one hundred and twenty days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this section shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter ;”

(ii) in paragraph (b), for the words “no Magistrate shall”, the words “no Magistrate shall, except for reason to be recorded in writing” shall be substituted ;

(iii) the Explanation shall be numbered as Explanation II and before Explanation II as so renumbered, the following Explanation shall be insterted, namely :—

“Explanation I.—For the avoidance of doubts, it is hereby declared that, notwitstanding the expiry of the period specified in paragraph (a) the accused person shall be detained in custody so long as he does not furnish bail.”

Amendment to apply to investigation.—The provisions of Section 167 of the Code of Criminal Procedure, 1973, as amended by this Act, shall apply to every investigation pending immediately, before the

commencement of this Act, if the period of detention of the accused person, had not, at such commencement, exceeded sixty days.

Haryana.—[Amended by Haryana Act 20 of 1981, Section 2 (w.e.f. (22-12-1981)].

After Section 167 insert the following Section 167-A, namely :—

“167-A. Procedure on arrest by Magistrate.—For the avoidance of doubt, it is hereby declared that the provisions of Section 167 shall, so far as may be, apply also in relation to any person arrested by, or under any order or direction of, a Magistrate whether executive or judicial.”

Orissa.—[Amended by Orissa Act No. 11 of 1997, Section 2 (w.e.f. 5-11-1997)

In Section 167 of the Code of Criminal Procedure, 1973, in paragraph (a) of the proviso to sub-section (2),—

(i)for the words “under this paragraph” the words “under this section” shall be substituted; and

(ii)for the words “ninety days” wherever they occur, the words “hundred and twenty days” shall be substituted.

Punjab.—[Amended by President Act 1 of 1984, Section 2 (w.e.f. 23.6.1984)].

In sub-section (2) of Section 167 of the Code of Criminal Procedure, 1973. In its application to the State of Punjab, for the words “fifteen days” at both the places where they occur, the words “thirty days” shall be substituted.

Rajasthan.—In Section 167, in its application to the State of Rajasthan, in proviso to sub-section (2),—

(i) for the existing paragraph (b) the following shall be substituted namely :—

“(b) Where the accused is in police custody no Magistrate shall authorise detention in any custody under this section unless the accused is produced before him in person ;

(bb) where the accused in judicial custody, no Magistrate shall authorise detention in any custody under this section unless the

accused is produced before him either in person or through the medium of electronic video linkage.”

(ii) for the existing Explanation II, the following shall be substituted, namely :—

“Explanation II.—If any question arises whether an accused person was produced before the Magistrate as required under paragraph (b) and (bb), the production of the accused person may be proved—

(i) by his signature on the order authorising detention, if he is produced in person, or

(ii) by a certificate to the effect that he was produced through the medium of electronic video linkage recorded by the Magistrate on the order authorising detention, if he is produced through the medium of electronic video linkage.” [Vide, Rajasthan Act 16 of 2005, Section 2 (w.e.f. 16.7.2005).]

Tripura.—[Amended by Tripura Act No. 6 of 1992, Section 2 (w.e.f. 29.7.92)].

In Section 167 in its application to the State of Tripura in paragraph (a) of the proviso to sub-section (2)—

(a) for the words “ninety days” wherever they occur the words “one hundred eighty days” shall be substituted.

(b) for the words “sixty days” wherever they occur the words “one hundred twenty days” shall be substituted.

Uttar Pradesh.—[Amended by Act No. 18 of 1978]

“167-A. Procedure on arrest by Magistrate.—For the avoidance of doubts, it is hereby declared that the provisions of Section 167 shall, so far as may be, apply also in relation to any person arrested by, or under any order or direction of, a Magistrate, whether executive or judicial.”

West Bengal.—(i) Amended by West Bengal Act 24 of 1988, Section 4].

In Section 167 of the principal Act,—

(a) for sub-section (5), the following sub-section shall be substituted :—

“(5) If, in respect of—

(i) any case triable by a Magistrate as a summons case, the investigation is not concluded within a period of six months, or

(ii) any case exclusively triable by a Court of Session or a case under Chapter XVIII of the Indian Penal Code (45 of 1860), the investigation is not concluded within a period of three years, or

(iii) any case other than those mentioned in clauses (i) and (ii), the investigation is not concluded within a period of two years, from the date on which the accused was arrested or made his appearance,

the Magistrate shall make an order stopping futher investigation into the offence and shall discharge the accused unless the officer making the invetigation satisfies the Magistrate that for special reasons and in the interests of justice the continuation of the investigation beyond the periods mentioned in this sub-section in necessary.”

(b) in sub-section (6), after the words “any order stopping further investigation into an offence has been made”, the words “and the accused has been discharged” shall be inserted.

(ii) [Amendment by West Bengal Act XX of 2004, Section 3.]

In the proviso to sub-section (2) of Section 167 of the principal Act, for Clause (b), the following clause shall be substituted.

“(b) no Magistrate shall authorise detention under this section—

(i) in the police custody, unless the accused is produced before him in person everytime till the accused is in police custody.

(ii) in the judicial custody, unless the accused is produced before him either in person or through the medium of electronic video linkage.”

COMMENTS

Application for police custody—Must be strictly considered on materials as it involves fundamental right and personal liberty of individual.—There was averment that it was apprehension of investigating agency that respondent might have connection with other absconding accused and that respondent might have known hiding places of absconding accused and places where arms, ammunitions and explosives where hidden. It was not sufficient and

could not be made basis for ordering police custody. Application for grant of police custody must be strictly considered on materials as it involves fundamental right and personal liberty of individual.—State v. Sundaramoorthy, 2008 Cri LJ 898 (Mad).

Bail—For failure to file charge-sheet within stipulated period.—Offence was under MCOC Act. Apical Court was empowered to extend period of detention in judicial custody upto 180 days in view of amendment to Section 167 (2) made by Section 21(2) of MCOC Act, 1999. Due to failure to file Challan/Charge-sheet before Special Court within period of 180 days of arrest and first order of remand to police custody, accessed was entitled to bail.—Rajesh v. State of Maharashtra, 2008 Cri LJ 3810 (Bom).

Bail—Grant for default could not be put on a higher pedestal than bail granted otherwise.—It was substance of accusation and belief of Magistrate and not the nomenclature under which case was registered. Every person released on bail under Section 167 (2) shall be deemed to be so released under provisions of Chapter XXXIII of Code. But, that did not ipso facto mean that bail order assumes content and character of bail order of the kind conceived under Sections 437 and 439. Bail granted for default could not be put on a higher pedestal than bail granted otherwise.—Usha Devi v. State of Bihar, 2006 Cri LJ 4435 (Pat).

Cancellation of bail.—When bail granted otherwise than under Section 167 (2) (a) could be cancelled, if investigation discloses commission of graver offence, there was no justification to hold that an accused released on bail on default, his bail could not be cancelled on submission of charge-sheet in case it discloses commission of graver offence. But, mere submission of charge-sheet for graver offence only shall by itself be not the ground for cancelling bail. Before cancelling bail, Court will have to be further satisfied that case was of such a nature in which no Court would have accepted plea of bail.—Usha Devi v. State of Bihar, 2006 Cri LJ 4435 (Pat).

Commencement of proceedings—Issuance of process.—Inquiry under Section 167(2) could be equated with that contemplated under Section 207. This inquiry was not administrative but was judicial inquiry.—Gulam Mohd. Kabir Mohd. Mir v. State of Maharashtra, 2008 Cri LJ 2826 (Bom).

Compulsive bail—Grant of.—Accused granted default bail was re-arrested on ground of non-compliance of conditions of bail. He was not entitled to bail under proviso to Section 167(2) again. But Court was precluded from using its discretion under Section 439.—Nishil v.

Station House Officer, Alathur Police Station, Ernakulam, 2008 Cri LJ 2467 (Ker).

Default bail—Failure to take cognizance within prescribed period.—Change sheet was filed on last day of prescribed period. Cognizance could not be taken by Court as legal debate was raised by accused that charge sheet was incomplete. Arguments spill over next day making it obligatory on part of Magistrate to decide rival contentions. In such event order taking cognizance was bound to be passed after expiry of period stipulated in Section 167(2). Accused could not take advantage of his own act. He was not entitled to bail.—Gulam Mohd. Kabir Mohd. Mir v. State of Maharashtra, 2008 Cri LJ 2426 (Bom).

Extinguishment of right of compulsory bail.—Accused was released on bail but by the time he had furnished bail bond charge-sheet was filed, right of accused to be released on bail got extinguished.—Gyan Chandra Agrawal v. Central Bureau of Investigation Camp, Bhilai, 2007 Cri LJ 2851 (Chh).

Filing of challan for offence under Section 304 B, IPC—Permissible period for filing challan is 90 days.—Where minimum and maximum sentences are prescribed both are imposable depending on the facts of the cases. It is for the Court, after recording conviction, to impose appropriate sentence. It cannot, therefore, be accepted that only the minimum sentence is provided that does not mean that the sentence imposable is only the minimum sentence. The High Court’s view in the impugned order that permissible period of filing of challan is 90 days is the correct view. Contrary view expressed by Jharkhand, Delhi and Karnataka High Courts is not correct. Himachal Pradesh, Rajasthan and Punjab and Haryana High Courts taking the view 90 days is the period have expressed the correct view.—Bhupinder Singh v. Jarnail Singh, AIR 2006 SC 2622 at 2625-2626 : II (2006) DMC 334 : 2006 Cri LJ 3621 : (2006) 6 SCC 277 : (2006) 3 SCC (Cri) 101.

Grant of default bail—Determination of period for filing of challan.—Maximum sentence that could be imposed for offence charge was to be seen. Accused was charged for offence under Section 467 and 409, which is punishable with imprisonment for life or imprisonment for 10 years and fine. In such cases, period of filing of charge-seet/challan was ninety days and not sixty days. Grant of bail for not filing charge-sheet/ challan within sixty days was liable to be set aside.—State of Gujarat v. Laxmansingh Chandrasinh Padhiyar, 2008 Cri LJ 3843 (Guj).

Meaning and significance of expression “Punishable’’ in Section 167 (2), proviso.—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 imposing a sentence comes only after recording the order of conviction of the accused person. The significant word in the proviso is “punishable’’. The word “punishable’’ as used in statutes which declare that certain offences are punishable in a certain way means liable to be punished in the way designated. It is ordinarily defined as deserving of or capable or liable to punishement, capable of being punished by law or right, may be punished or liable to be punished, and not must be punished.—Bhupinder Singh v. Jarnail Singh, AIR 2006 SC 2622 at 2625-2626 : II (2006) DMC 334 : 2006 Cri LJ 3621 : (2006) 6 SCC 277 : (2006) 3 SCC (Cri) 101.

Release of accused on bail—Not allowed.—Accused was alleged to have committed offence under Section 304 Part II for which prescribed period of punishment was ten years. bar of 60 days would not come into play and accused could not be released.—Lakhan Tomer v. State of U.P., 2008 Cri LJ 1521 (All).

Release on bail—Computation of period on detention.—For failure to file charge-sheet within the prescribed period, period of 90 or 60 days should be counted from date of first order of remand and not from date of arrest of surrender of accused.—Nijamuddin Mohammad Bashir Khan v. State of Maharashtra, 2006 Cri LJ 4266 (Bom).

Release on bail allowed.—Right under proviso (a) to Section 167 (2) is indefeasible. It was enforceable by accused only from time of default till filing of challan or charge-sheet.—Singamala Sankara Nath v. State of A.P., 2007 Cri LJ 884 (AP).

Release on bail—Offence under Section 366, IPC.—Where release on bail for failure of Investigating Officer to file charge-sheet within prescribed period. Offence was under Section 366 of IPC. Prescribed punishment for said offence is imprisonment which may extend to term of 10 years. Meaning thereby term of imprisonment can be for clear period of 10 years or less. Case would be covered by provision of Section 167 (2) (a) (ii) for which prescribed period of investigation is 60 days. Accused was entitled to bail. Provisions of Section 167 (2) (a) (i) prescribing 90 days period to file charge-sheet apply to cases where minimum period of imprisonment is 10 years meaning thereby imprisonment could be for period of 10 years or more. Offence under Section 366 not covered by said provision.—Nijamuddin Mohammad Bashir Khan v. State of Maharashtra, 2006 Cri LJ 4266 (Bom).

Remand of accused to police custody proper.—Cases regarding land dispute etc. under Sections 420, 406 etc. of I.P.C. were registered against accused. Accused was examined by doctors at civil hospital and found medically all right. Magistrate also noted that there was no order of civil Court about ownership of suit land. Before passing order, Magistrate had verified all details, applying his mind and after satisfaction remanded accused to the police custody. order of remand was not liable to be quashed.—Bharat Inder Singh Chahal, v. State of Punjab, 2007 Cri LJ 4490 (P & H).

Statutory bail—Exclusion of day of arrest.—Period during which Magistrate may authorize detention of accused in judicial custody was to be computed from date of judicial remand granted by Magistrate. It was only when accused after being arrested was produced on next day before Magistrate that exclusion of day of arrest while computing period of detention in judicial custody would be justified. Judicial remand of accused was ordered on 31.3.2006. As 29.6.2006 was 91st day, hence, accused were justified in moving application for release. Accused were entitled to bail. Held, that mere filing of challan subsequently on same day at 4.00 p.m. could not in any manner frustrate indefeasible right of being released on bail.—Sunil Singh v. State of Chhattisgarh, 2007 Cri LJ 510 (Chhat).

168. Report of investigation by subordinate police officer.— When any subordinate police officer has made any investigation under this Chapter, he shall report the result of such investigation to the officer in charge of the police station.

169. Release of accused when evidence deficient.—If, upon an investigation under this Chapter, it appears to the officer in charge of the police station that there is not sufficient evidence or reasonable ground of suspicion to justify the forwarding of the accused to a Magistrate, such officer shall, if such person is in custody, release him on his executing a bond, with or without sureties, as such officer may direct, to appear, if and when so required, before a Magistrate empowered to take cognizance of the offence on a police report, and to try the accused or commit him for trial.

COMMENTS

Final Report—Cognizance of offence—Powers of Magistrate.—F.I.R. was filed alleging offences punishable under Sections 420/406/408 I.P.C. Materials collected by Investigating Officer were short of submitting charge sheet. On direction of High Court, Investigating Officer made further investigation and submitted his third final report. magistrate should be given a chance to apply his

judicial mind as to whether the Final Report could be accepted into to or not. Direction was issued to Magistrate to consider report in light of guidelines given by Supreme Court.—Irom Shyam Sigh v. State of Manipur, 2008 Cri LJ 3162 (Gau).

Release of accused—Notice to complainant before passing order not necessary.—There was release of accused on ground that evidence against him was not sufficient. Notice to complainant before passing order under Section 169 was not necessary. Such notice would be necessary only when Magistrate though report was sent to him under Section 173 did not deem it proper to take cognizance against him.—Abdul Razak Abdul Gani Dunge v. State of Maharashtra, 2008 Cri LJ 133 (Bom) (Nagpur Bench).

170. Cases to be sent to Magistrate when evidence is sufficient.—(1) If, upon an investigation under this Chapter, it appears to the officer in charge of the police station that there is sufficient evidence or reasonable ground as aforesaid, such officer shall forward the accused under custody to a Magistrate empowered to take cognizance of the offence upon a police report and to try the accused or commit him for trial, or, if the offence is bailable and the accused is able to give security. shall take security from him for his appearance before such Magistrate on a day fixed and for his attendance from day to day before such Magistrate until otherwise directed.

(2) When the officer in charge of a police station forwards an accused person to a Magistrate or takes security for his appearance before such Magistrate under this section, he shall send to such Magistrate any weapon or other article which it may be necessary to produce before him, and shall require the complainant (if any) and so many of the persons who appear to such officer to be acquainted with the facts and circumstances of the case as he may think necessary, to execute a bond to appear before the Magistrate as thereby directed and prosecute or give evidence (as the case may be) in the matter of the charge against the accused.

(3) If the Court of the Chief Judicial Magistrate is mentioned in the bond, such Court shall be held to include any Court to which such Magistrate may refer the case for inquiry or trial, provided reasonable notice of such reference is given to such complainant or persons.

(4) The officer in whose presence the bond is executed shall deliver a copy thereof to one of the persons who executed it, and shall then send to the Magistrate the original with his report.

171. Complainant and witnesses not to be required to accompany police officer and not to be subjected to restraint.—No complainant or witness on his way to any Court shall be required to accompany a police officer, or shall be subjected to unnecessary restraint or inconvenience, or required to give any security for his appearance other than his own bond :

Provided that, if any complainant or witness refuses to attend or to execute a bond as directed in Section 170, the officer incharge of the police station may forward him in custody to the Magistrate, who may detain him in custody until he executes such bond, or until the hearing of the case is completed.

172. Diary of proceedings in investigation.—(1) Every police officer making an investigation under this Chapter shall day by day enter his proceedings in the investigation in a diary, setting forth the time at which the information reached him, the time at which he began and closed his investigation, the place or places visited by him, and a statement of the circumstances ascertained through his investigation.

[82][(1-A) The statements of witnesses recorded during the course of investigation under Section 161 shall be inserted in the case diary.

(1-B) The diary referred to in sub-section (1) shall be a volume and duly paginated.]

(2) Any Criminal Court may send for the police diaries of a case under inquiry or trial in such Court, and may use such diaries, not as evidence in the case, but to aid it in such inquiry or trial.

(3) Neither the accused nor his agents shall be entitled to call for such diaries, nor shall he or they be entitled to see them merely because they are referred to by the Court ; but, if they are used by the police officer who made them to refresh his memory, or if the Court uses them for the purpose of contradicting such police officer, the provisions of Section 161 or Section 145, as the case may be, of the Indian Evidence Act, 1872 (1 of 1872), shall apply.

COMMENTS

Case diary—Proof of Document.—Slip was attached to injury report which formed part of case diary. Reliance on note was not made in slip. Without proof of such document and without drawing attention of investigation officer towards it was improper.—Hari Yadav v. State of Bihar, 2008 Cri LJ 821 (SC).

Defect in investigation whether fatal ?.—Defect in investigation was not fatal when testimony of witnesses was found credible and cogent. Hence, failure to mention date and time when investigation was started was not fatal.—Arif Khan v. State of Uttaranchal, 2006 Cri LJ 4564 (U’chal).

173. Report of police officer on completion of investigation.—(1) Every investigation under this Chapter shall be completed without unnecessary delay.

[83][(1-A) The investigation in relation to rape of a child may be completed within three months from the date on which the information was recorded by the officer-in- charge of the police station.]

(2) (i) As soon as it is completed, the officer incharge of the police station shall forward to a Magistrate empowered to take cognizance of the offence on a police report, a report 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.

[84][(h) whether the report of medical examination of the woman has been attached where investigation relates to an offence under Sections 376, 376-A, 376-B, 376-C or 376-D of the Indian Penal Code (45 of 1860).]

(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 this section 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.

(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 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 sub-section (5).

(8) Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under sub- section (2) has been forwarded to the Magistrate and whereupon such investigation, the officer in charge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed ; and the provisions of sub- sections (2) to (6) shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under sub-section (2).

COMMENTS

Bigamy—Quashing of charge-sheet.—Complaint was filed by aggrieved person but none of the witnesses could say marriage was performed in his presence and any ritual as provided in Hindu Law for valid marriage took place. By evidence collected by I.O., second marriage was not proved nor there was prima facie evidence regarding said marriage. Proceedings under charge-sheet in question under Section 494, IPC were quashed.—Suraj Lal Jaiswal v. State of U.P., II (2006) DMC 1 (All).

Filing of charge-sheet—Referring matter by C.B.I. Director for opinion to Attorney General of India not permissible.—Entire investigation and law officers team of CBI was ad idem in its opinion on filing of charge-sheet. Dissenting opinion only by Director of prosecution was based on interpretation of legal evidence, though that stage was not arrived. Referring matter by Director, CBI, for opinion to Attorney General of India is not permissible.—M.C. Mehta v. Union of India, AIR 2007 SC 1087 : (2007) 1 SCC 110 : (2007) 1 SCC (Cri) 264 : (2007) 53 AIC 192.

Filing of report of police-Xerox copies when could be filed.—Original photographs relied upon were filed along with report under Section 173 (2). It could be taken back with permission of Court to be produced as and when required. Alternatively, xerox copies could be filed along with certificate that they could be compared with originals, as and when so directed by Court.—Bhupinder Singh v. Jarnail Singh, AIR 2006 SC 2622 : (2006) 6 SCC 277 : (2006) 3 SCC (Cri) 101 : 2006 AIOL 423 : 2006 (8) SCJD 162.

Final report—Validity of its acceptance.—Offence were dishonest misappropriation of property and criminal conspiracy. it was alleged by petitioner that respondents in collusion with others had executed sale deed and sold property on basis of fake power of attorney. Magistrate had drawn presumption that power of attorney is valid since petitioner’s signature exist on it but on opportunity was given to petitioner to rebut presumption Prima facie offence under Section 404, I.P.C. made out. Order of Magistrate accepting negative final report and dismissing protest petition was improper.—Prabhat Bhatnagar v. State, 2007 Cri LJ 4349 (Raj) (Jaipur Bench).

Final Report by Police—Non-filing of all documents with final report—Effect of.—It is true that ordinarily all documents accompany the charge-sheet. But, in this case, some documents could not be filed which were not in the possession of the CBI and the same were with the GEQD. The said documents are said to have been filed on 20-1-2006 whereas the appellant was arrested on 12-2-2006. Appellant does not contend that he has been prejudiced by not filing

of such documents with the charge-seet. No such plea in fact had been taken. Even if all the documents had not been filed, by reason thereof submission of charge-sheet itself doe not become vitiated in law. The charge-sheet has been acted upon as an order of cognizance had been passed on the basis thereof. Appellant has not questioned the said order taking cognizance of the offence. Validity of the said charge-sheet is also not in question.—Dinesh Dalmia v. C. B. I., AIR 2008 SC 78 at 83 : 2008 Cri LJ 337 : (2007) 8 SCC 770.

Final report by Police—Against absconding accused could be filed if I.O. finds sufficient evidence against accused.—A charge-sheet is a final report within the meaning of sub-section (2) of Section 173 of the Code. 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 therefor. One of the requirements for submission of a police report in 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, in our opinion, law does not require that filing of the charge-sheet must await the arrest of the accused.—Dinesh Dalmia v. C.B.I., AIR 2008 SC 78 at 82 : 2008 Cri LJ 337.

Further investigation in murder case—Permission of Court necessary.—Police took up investigation and filed charge-sheet. But during pendency of case, file was transferred to CID for further investigation. Except representation of defacto complainant, there was no report of officer in charge of police station regarding obtaining further evidence. Permission of Court was necessary to conduct further investigation. Order of Special Judge rejecting application on ground that no formal permission was required was improper.—Koneru Vara Prasada Rao v. State of A. P., 2007 Cri LJ 2898 (A.P.).

Further investigation—Admissibility of.—Indisputably, the law does not mandate taking of prior permission fro the Magistrate for further investigation. Carrying out of a further investigation even after filing of the charge sheet is a statutory right of the police. A distinction also exists between further investigation and re-investigation. Whereas re-investigation without prior permission is necessarily forbidden, further investigation is not.—State of A. P. v. A. S. Peter, AIR 2008 SC 1052 at 1054 : (2008) 2 SCC 383.

Further investigation—After filing of final report.—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 under sub-section(2) thereof has been filed. A further investigation is permissible even if order of cognizance of offence has been taken by the Magistrate.—Dinesh Dalmia v. C. B. I., AIR 2008 Cri LJ 337 : (2007) 8 SCC 770.

Further investigation—Filing of additional charge-sheet after commencement of trial illegal.—Accused had escaped from Court custody. Cognizance was taken by Magistrate for offence under Section 224, IPC. Some of witnesses had turned hostile. Appropriate disciplinary action could be taken against them by the District Judge. District Judge cannot direct police to further investigate the matter and file additional charge sheet against accused. Filing of additional charge-sheet after commencement of trial was illegal.—Sadhu Narayana v. S.H.O. 1st Town P.S. Kadapa, 2006 Cri LJ 3038 (AP).

Further investigation—Propriety of.—Investigating Officer was bound to issue notice to person who gives first information in view of mandatory provisions of Section 173 (2).—K. Muralidharan v. State of Kerala, 2007 Cri LJ 417 (Ker).

Further investigation—When could be carried.—No application for police custody for further investigation was made while investigation was pending. No intimation also was made by Police Prosecutor as to intention of investigating agency for further investigation. Application for police custody filed after investigation was over and final report under Section 173 was submitted was not maintainable.—State v. Sundaramoorthy, 2008 Cri LJ 898 (Mad).

Investigation by C.B.I.—Could be directed during trial.—If there is necessity for further investigation the same can certainly be done as prescribed by law notwithstanding the fact that trial was started. The mere fact that there was be further delay in concluding that trial should not stand on the way of further investigation if that would help the Court in arriving at the truth and do real and substantial as well as effective justice. The above decision is being followed for the last quarter of century by the Courts in India. The above decision was followed recently by the Apex Court in Hasanbhai Valibhai Qureshi v. State of Gujarat and others, v. State of Gujarat and others, 2004 AIR SCW 2063 : 2004 Cri LJ 2018. Court have already held that Court was justified on evidence adduced before it in impleading the review petitioner as an accused. It is true that in all cases where CBI inquiry is ordered it is not necessary to stay the trial which is in progress. But, in the nature of the case, it is necessary that further proceedings

of the trial Court need be started only after CBI files further report and it is a fit case to allow the writ petition filed by the mother of the deceased by referring the mater to C.B.I.—J. Prabhavathiamma v. State of Kerala, 2008 Cri LJ 455 at 465, 466-467 (Ker).

Post-cognizance stage—Powers of Court.—Incident in question was an aftermath of Godhra carnage when Masjid was put on fire by mob. Said mob had not only damaged Masjid but pelted stones. many accused were charge-sheeted in respect of incident. Trial Court took cognizance and reaching to almost completion of trial to the stage of recording of deposition of 85 witnesses out of 96. Court was not empowered to direct police on its own to investigate further under Section 173 (8) after taking cognizance upon police report.—Miteshkumar Rameshbhai Patel v. State of Gujarat, 2006 Cri LJ 3198 (Guj).

Powers of Magistrate for taking cognizance of offence.—Even if police submits final form reporting the case to be false it was open to Magistrate not to accept the same and that cognizance of offence as disclosed in the case diary. Final arbiter in a situation like this was magistrate and not police. In a suitable case magistrate taking cognizance of offence could differ with the police report and take cognizance of offence even when police had reported the case to be false.—Rameshwar Singh v. State of Bihar, 2006 Cri LJ 4427 (Pat).

Powers of Magistrate for re-investigation of case.—Case was registered against accused under Sections 420, 467, 120-B, IPC. Police had submitted negative report after completion of investigation. Order of Magistrate directing Investigating Officer to carry out further investigation in a particular manner was liable to be set aside. Investigating Officer may make further investigation as per his satisfaction.—Pramod Kumar Saini v. State of Rajasthan, 2006 Cri LJ 3525 (Raj).

Report of Police Officer on investigation—Effect of non-description of offences in detail.—Non-description of offences in detail was not material. It could be urged at stage of framing charge that no offence was made out.—Parkash Singh Badal v. State of Punjab, AIR 2007 SC 1274 : (2007) 1 SCC 1 : 2007 (1) SCJ 255 : 2007 (12) SCJD 591.

Scope of Section 173 (8).—Section 173 (8) empowers further investigation but re-investigation was not permissible.—Miteshkumar Rameshbhai Patel v. State of Gujarat, 2006 Cri LJ 3198 (Guj).

Second charge-sheet—Submission of.—There was no fresh material for submission of second charge-sheet. Second charge-sheet was submitted only on the recommendation of evidence already collected at the time of earlier submission of charge- sheet. Submission of second charge-sheet on the basis of stale material could not be justified.—Manilal Keshri v. State of Bihar, 2006 Cri LJ 3981 (Pat).

Statutory bail—Right to be released on.—The power of a court to direct remand of an accused either in terms of sub-section(2) of Section 167 of the Code or sub-section(2) of Section 309 thereof will depend on the stages of the trial. Whereas sub-section (2) of Section 167 of the Code would be attracted in a case where cognizance has not been taken, sub-section (2) of Section 309 of the Code would be attracted only after cognizance has been taken. Remand of an accused is contemplated by the Parliament at two stages; pre-cognizance and post-cognizance. Even in the same case depending upon the nature of charge-seet filed by the investigating officer in terms of Section 173 of the Code, a cognizance may be taken as against the person against whom an offence is said to have been made out and against whom no such offence has been made out even when investigation is pending. So long a charge-sheet is not filed within the meaning of sub-section (2) of Section 173 of the Code, investigation remains pending. It, however, does not preclude an investigation officer, as noticed herein before, to carry on further investigation despite filing of a police report, in terms of sub-section (8) of Section 173 of the Code.—Dinesh Dalmia v. C.B.I., AIR 2008 SC 78 at 83-85 : 2008 Cri LJ 337 : (2007) 8 SCC 770.

Two Information Reports arising out of same incident—Validity of same investigating Agency (CBI) carrying out investigation under both FIRs.—Where two information reports have arisen out of the same incident, same Investigation Agency (CBI) carrying out investigation under both FIR was valid. Investigating Agency was not precluded from further investigation in spite of forwarding report under Section 173 (2) on a previous occasion.—Bank of Rajasthan v. Keshav Bangur, AIR 2008 SC 202 : 2008 Cri LJ 397.

Validity of acceptance of final report and rejection of protest petition.—Magistrate had not discussed any evidence collected by I.O. during investigation. Even no reference of such evidence had been given. Magistrate had illegally accepted final report only on ground that three witnesses were accused in cross case and only one witness was independent who had not filed his affidavit and cross case was filed in pesbandi only to create defence. Order passed was not in accordance with law because it was specifically alleged in protest

petition that statement of witnesses were not recorded and final report was submitted in arbitrary manner. Held that Magistrate committed manifest error by accepting final report.—Sita Ram v. State of U.P., 2006 Cri. L.J. 1433 (All).

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