INVESTIGATION PROCESS

Research Project submitted in the fulfilment of the course titled:

COMPARATIVE CRIMINAL PROCEDURE

A Research Proposal made by:

RASHMI SINGH
Roll No: 459
LLM

Research Proposal submitted to:

Prof. Dr. G.P Pandey

CHANAKYA NATIONAL LAW UNIVERSITY

NYAYA NAGAR, MITHAPUR, PATNA-800001
September, 2022
 Acknowledgement
Writing this research project has been fascinating and extremely rewarding. I would like to
thank a number of people who have contributed to the final result in numerous ways.

To commence with, I express my sincere and deepest gratitude to my faculty and supervisor,
Prof. Dr. G.P Pandey, for his immense support and guidance throughout the course of my
research. He has played an instrumental role in the development of this research work. While
he allowed this paper to be worked upon independently, he steered me in the right direction
whenever he thought it was needed. I will forever be thankful for his patience and motivation.
I am also thankful to my family and friends for their constant support and encouragement
during the course of this research.

2
 Table of Contents
INTRODUCTION ..........................................................................................................................................4
AIMS AND OBJECTIVE OF RESEARCH ..................................................................................................5
REVIEW OF LITERATURE ........................................................................................................................5
RESEARCH QUESTIONS ............................................................................................................................6
RESEARCH METHODOLOGY ...................................................................................................................6
LIMITATIONS OF THE STUDY .................................................................................................................6
STEPS IN INVESTIGATION........................................................................................................................7
COMMON LAPSES AND MALPRACTICES IN INVATIGATIVE PROCESS....................................... 24
CONCLUSION AND SUGGESTIONS ....................................................................................................... 35
BIBLIOGRAPHY ........................................................................................................................................ 39

3
 CHAPTER 1

INTRODUCTION
Investigation term is derived from Latin word “investigare” which means “to trace out” or “to
search into”. Investigation means to collect all the facts & evidence which will help in the
determination of victim, suspect, objective of crime, modus operandi of crime, and which
all elements are necessary to convict the criminal. In brief, the main objective of
investigation is to collect various type of evidence for the purpose of any inquiry or trial. The
process of investigation can be different in civil as well as criminal cases. However,
investigation is a primary step, which is conducted by the investigative agencies, which may
be police; CBI, CID & other agencies, and it usually starts after lodging the First Information
Report (FIR) in the police station. FIR deals with the section 154-155 of the Criminal Procedure
Code (CrPC). If the officer-in-charge of a police station suspects the commission of an offence
from statement of FIR or when the magistrate directs or otherwise, the officer or any
subordinate officer is duty-bound to proceed to the spot to investigate the facts and
circumstances of the case and if necessary, take measures for the discovery and arrest of the
offender.

Investigation primarily consists of ascertaining facts and circumstances of the case. It includes:

1. Searching of scene of crime;

2. Collection of evidence;
3. Gathering of facts and information;
4. Preserve and security of scene of crime;
5. Discovery of any article or object used for the commission of the crime;
6. Interrogation and examination of various persons including the accused and taking of
their statements in writing;
7. Arrest of the suspected offender;

For the sake of simplicity, Criminal investigation can be carried out in various types of crimes
such as-

• Warrant case
• Summons case

4
 • Bailable offences
• Non-bailable offences
• Cognizable offences
• Non-cognizable offences

All type of cases can have slightly different type of steps but they are almost same.
Investigation mainly consists of ascertaining facts and circumstances of the case. It includes:

1. To search the scene of crime whether it is indoor, outdoor, and mobile or primary and
secondary.
2. The recognition, preservation, collection, labelling and handling, and transportation of
physical evidences.
3. To gather the information about facts and circumstances.
4. Identification of victim.
5. Recognition and arrest of the suspected offender.
6. Searching of crime committed article or object.
7. Establish link between scene of crime, victim, and suspect.

Aims and objective of research

The aim and objectives of this research work are as follows:

• To analyse the different steps in investigation

• To analyse common lapses and malpractices in investigative process in Bihar

Review of literature
R. V Kelkar's lectures on criminal procedure: Fourth edition by K N Chandrasekharan
Pillai (2016)

Shri Kelkar's treatise 'Lectures on Criminal Procedure' is primarily intended to impart

knowledge of the subject to the law student and arouse his interest. The book is an abridged
and improved version of the 'Outlines of Criminal Procedure". The existing book is for the
most part section wise commentaries supported by relevant case-law.

Criminal Procedure, 4th edition by CK Thakker 'Takwani' and MC Thakker (2015)

5
The book discusses and explains with clarity and precision, the principles of criminal
jurisprudence which are the core of criminal procedure. Justice Thakker has taken particular
care to deal with controversial matters like anticipatory bail, arrest of judicial officers, search
and seizure, etc. The book is marked with a high sense of purposefulness and pragmatism.

Research questions
Researcher would like to find answers to the following questions:
1. What is the importance of the different stages of investigation?
2. What are the common lapses and malpractices in investigation process in Bihar?

Research methodology
The researcher will be using secondary sources for data collection. The secondary sources for
this research paper are Supreme Court and High Court judgements, books, newspaper,
articles written by many authors, and other such sources.

Limitations of the study

Due to time and monetary constraints, the research is conducted with limited online
resources. It is made solely for academic purpose and may need to be revised in
future as per further legal developments. Finally, the reader is cautioned that the
researcher is a novice trying to dive into the vast ocean of legal research and learn the
process.

6
 CHAPTER 2

STEPS IN INVESTIGATION

Investigation of cases by Police Officer-in-Charge

Any Police Officer-in-Charge may, without the order of a Magistrate, investigate any
cognizable case which a Court having jurisdiction over the local area within the limits of
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 the Criminal Procedure
Code, 1973. A Magistrate of Court of Law is empowered under Sec 190 Cr. P.C to order such
investigation, and the word ‘investigation’ has been defined in Sec 2 (h) of The Criminal
Procedure Code, 1973, and it includes all the proceedings under the Code for collection of the
evidence conducted by a Police officer or by any person other than a Magistrate who is
authorized by a Magistrate in this behalf. An investigation officer or agency cannot refrain
from conducting investigation on ground that it had no territorial jurisdiction to investigate
offence, when directed by a Magistrate , as reported in Rasiklal v. State of Gujarat AIR 2010
SC [Link] , when a complaint was lodged or referred to Police, and the First Information
Report (FIR) was sent to Court, in the course of the Investigation and interrogation of the
accused, if it was revealed commission of the several offences, on the basis of such information
itself, the investigating officer shall proceed with the investigation ,and if necessary, to take
measures for the discovery and arrest of the offenders and file charge sheet where a prima facie
case has been made out.

Final Report or Challan or Charge-Sheet

The Criminal Procedure Code, 1973, Sec173 (2) refers to the Final Report (Challan) or Charge-
Sheet of Police Officer on completion of Investigation.
The Report forwarded by the Investigation Officer is either a Final Report (Challan), where no
case has been made out or is a Charge-Sheet where a prima facie case has been made out. In
Sec 173(2) (e), Criminal Procedural Code (Cr. PC) the only requirement is to furnish
information to the Court concerned by the officer –in-charge of the Police station whether the
accused had been arrested or not. It does not mean that it is necessary to arrest the accused
before submission of charge-sheet in every case. Arrest of the accused is justified or necessary

7
only if a prima facie case is made out, according to the Supreme Court in Lalji Yadav V. State
of UP, 1998 Cri. L J 2366.

Alternatives before Magistrate in a Final Report by Police Officer.

Wherever a Final Report is forwarded by investigating Police in a case, u/s 173(2) (i) of Cr. P.
C, and is placed before to a Magistrate, several situations may arise. The Report may conclude
that an offence appears to have been committed by a particular person and persons, and in such
a case Magistrate may either: -
1) accept Report and take cognizance of offence and issue process,
2) may disagree with the report and drop the proceeding or to take cognizance on the basis of
report / material submitted by the Investigation Officer,
3) may direct further investigation under Sec 156(3) and require Police to make report as per
Sec 173(8) -(AIR 1968 SC 117; AIR 1980 SC 1883 / AIR 1955 SC 196).
4) may treat the Protest Complaint as a complaint, and proceed u/s 200 & 202 of Cr. P.C.
On completion of Investigation, Statement of Final Report u/s 173 (2) (ii) of Cr. P. Cis
mandatorily to be given to the complainant, and the Magistrate must give notice to the
informant and provide him an opportunity to be heard at the time of consideration of the report
(R. Rathinasabapathy V. State, 2004 Cri. L J 2735 (Mad).

Further Investigation Order U/s 173(8) Cr. P.C

Magistrate may direct further investigation under Sec 156(3) and require Police to make report
as per Sec 173(8) where a Final Report is placed before him under Sec 173 (2) (AIR 1968 SC
117; AIR 1980 SC 1883 / AIR 1955 SC 196). Also, further investigation is not altogether ruled
out merely because cognizance has been taken by the Court. When defective investigation
comes into light during course of trial, it may be cured by further investigation if circumstances
so permitted. It would be ordinarily be desirable that Police should inform the Court and seek
formal permission to make further investigation when fresh facts come to light instead of being
silent over the matter keeping in view only the need for an early trial. The right of Police, even
after submission of a report u/s (173(2) Cr. P.C, is not exhausted, and the Police can exercise
such right as often as necessary when fresh information comes into light (Ram Lal Narang V.
State of Delhi AIR 1979 SC 1791).

Powers of Revision U/s 397 Cr. P. C

8
The High Court or Sessions Court may call for and examine the records of any proceedings
before any inferior criminal courts under the Powers of Revision. However, an application can
be moved only to one Court, and no further application by same person shall be entertained by
the other of them. In (Rajathi V. C. Ganesan, 1999, 6 SCC 326; A.I.R 1999 SC 2374), where
First revision was dismissed by the Sessions Court, and second revision by High Court in
exercise of inherent powers under Sec 482 which powers are not a substitute for a second
revision under sec 397(3) and Supreme Court held that High Court wrongly exercised its
jurisdiction under Sec 482 Cr P C.
In Sabir V. Jaswant, 2002 Cr. L. J 4563 All, the Allahabad High Court held that the revision
against the order of Magistrate under Sec 156(3) directing the Police to interfere the case and
investigate is maintainable. Therefore, Sessions Judge committed no illegality in admitting the
revision and staying the operation of the Order.

To proceed against a person who is not charge-sheeted- Sec. 319 of Criminal Procedural
Code.

The discretion of the trail court to proceed against the person who is not an accused at the trail
if it appears from the circumstances of the case, that such person, other than the accused, is
involved in the crime is quintessence of Sec 319 Cr. P.C (Girish Yadav & Others, appellants,
V. State of MP, respondent, AIR 1996 SC 3098).Thus, the trail court in India is vested with
ample powers to proceed against an accused any time during the trail, if a person is not charge-
sheeted by the investigating Police Officer. In Ranjit Singh V. State of Punjab, 1998 (7) SCC
149, it was envisaged that the evidence tendered during trail of the case if the offence is to be
tried by a Court of Session, and it was held: - Material placed before committal Court cannot
be treated as evidence. Sessions Court, however, is competent to issue process against a person
who is not charge-sheeted U/s 319 after the trail is begun and recorded some evidence of the
prosecution (Tek Narayan Prasad Yadav V. State of Bihar 1999 SCC (Cri) 356). Even if the
trail is completed, fresh trail of the newly added person is mandatory, as held in (Shashikant
V. Tarkehwar Singh 2002 Cr. L J 2806 / A I R 2002 SC 2031 / (2002) 5 SCC 738).

Re-investigation of the Case.

After the order for further investigation, then for the second time the Magistrate cannot compel
the police to take a particular view in the matter and submit the challan in the case. if the

9
Magistrate does not agree with the opinion formed by the Police and still suspects that an
offence has been committed, he is entitled, notwithstanding the opinion of the Police, to take
cognizance under Sec 190 (1) (c) of the Cr. P.C, but he cannot direct the Police to re-investigate
the matter for the third time (Harinder Pal Singh v. State of Punjab, 2004 Cri. L J 2648 P&H).

The case for re-investigation is altogether a subject matter and discretion of the concerned High
Court or Supreme Court under Article 226 and Article 32 of the constitution, respectively or
under 482 of Cr.P.C; or may be considered by the Supreme Court of India, the ultimate
appellate forum. In Kashmiri Devi v. Delhi (Admn)AIR 1988 SC 1323, the case for re-
investigation was considered. In this case the Act of Police in shielding the guilty members of
Delhi Police was apparent and with that design the investigating agency had committed a
different story neglecting the eye-witness account. In Pannalal v. Veer Bhan 1992 Jab L J 327,
the discretion for a re-investigation was denied, since the facts and stage of the case was entirely
different and held that for re- investigation of the case unless some fresh facts have come to
light or additional evidence has been discovered or there exit compelling fresh grounds, the
Court would be slow in directing re-investigation.

Inherent Powers of High Court U/s 482 of Cr. P. C

The provision u/s 482 Criminal Procedure Code states that nothing in Cr. P.C shall be deemed
to limit or affect the Inherent Powers of High Court to make such orders as necessary to effect
of any order under Cr. P.C to prevent the abuse of the process of any of the Court or otherwise
to secure the ends of justice. Thus, the High Court U/s 482 Cr. P.C is having ample powers to
order for fresh investigation or re-investigation (State of Punjab V. Central Bureau of
Investigation & Others (2011) 11 SCR 281). Limitation for further investigation u/s 173 (8) of
Cr .P.C, for further investigation by Sub-Ordinate Courts , where charge sheet has filed will
not apply to the power’s u/s 482 Cr.P.C by the High Court ( State of West Bengal & Others V.
Committee for Protection of Democratic Rights, West Bengal & Others ( 2010) SC 2 SC 571).

In State of Haryana v. Bhajan Lal(1992 Supp (1) 335) , Supreme Court has given certain
guiding principles as follows:

10
"(1) where the allegations made in the first information report or the complaint, even if they
are taken at their face value and accepted in their entirety do not prima facie constitute any
offence or make out a case against the accused.
(2) Where the allegations in the first information report and other materials, if any,
accompanying the FIR do not disclose a cognizable offence, justifying an investigation by
police officers under Section 156(1) of the Code except under an order of a Magistrate within
the purview of Section 155(2) of the Code.
(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence
collected in support of the same do not disclose the commission of any offence and make out
a case against the accused.
(4) Where the allegations in the FIR do not constitute a cognizable offence but constitute only
a non-cognizable offence, no investigation is permitted by a police officer without an order of
a Magistrate as contemplated under Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable
on the basis of which no prudent person can ever reach a just conclusion that there is sufficient
ground for proceeding against the accused.
(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the
Act concerned (under which a criminal proceeding is instituted) to the institution and
continuance of the proceedings and/or where there is a specific provision in the Code or Act
concerned, providing efficacious redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the
proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the
accused and with a view to spite him due to private and personal grudge."

In M/s Zandu Pharmaceuticla Works Ltd V. Md. Sharaful Haque , AIR 2005 SC 9, the
complainant was an employee against a company, wherein parallel Labour Court / Civil cases
were pending, and Supreme Court held that the proceedings were with malicious / ulterior
motives , and complainant did not approach with clean hands, and thereby exercise of powers
under Sec 482 is justifiable.

The Supreme Court in Madhavrao Jiwajirao Scindia & Others v. Sambhajirao Chandrojirao
Angre & Others (1988) 1 SCC 692 observed in as under:
“The legal position is well settled that when a prosecution at the initial stage is asked to be
quashed, the test to be applied by the court is as to whether the uncontroverted allegations as

11
made prima facie establish the offence. It is also for the court to take into consideration any
special features which appear in a particular case to consider whether it is expedient and in the
interest of justice to permit a prosecution to continue. This is so on the basis that the court
cannot be utilized for any oblique purpose and where in the opinion of the court chances of an
ultimate conviction is bleak and, therefore, no useful purpose is likely to be served by allowing
a criminal prosecution to continue, the court may while taking into consideration the special
facts of a case also quash the proceeding even though it may be at a preliminary stage”.

In State of W. Bengal & another V. Moh. Khalid & Others (1995 AIR 785 / 1995 SCC 91(684)
regarding the exercise of inherent jurisdiction in quashing under Section 482 of the Code it was
held that in the following three cases it can be done:-
(i) When there is a legal bar to prosecution.
(ii) The FIR and the complaint do not make out the offence.
(iii) When there is no legal evidence.

The High Court can interfere during investigation:-

(i) not under the inherent powers but under the Constitution of India;
(ii) after cognizance before charges are framed.
This can be done both under the inherent powers and Article 226 of the Constitution of India:-
(a) on account of the existence of legal bar or where there is no material for issuing process or
action;
(b) there is not enough/no legal evidence;
(c) after charges are framed when there is legal evidence to sustain the charges.

In Rameshchandra Nandlal Parikh V. State of Gujarat and Anr. ( AIR 2006 sc 915 / Cr. LJ
964), Supreme Court had considered its extraordinary power under Article 136 of the Indian
Constitution, wherein which, the Gujarat High Court declined to exercise its power under Sec
482 Cr.P.C . Considering the nature of allegations involved and the facts and circumstances of
the case, Supreme Court was also of the view of the Gujarat High Court.

In State of Bihar v. Murad Ali Khan, 1988 (4) SCC 655 at pages 662-663: (AIR 1989 SC 1)
(at p. 5), Supreme Court held:
"It is trite that jurisdiction under S. 482, Cr. P. C., which saves the inherent power of the High
Court, to make such orders as may be necessary to prevent abuse of the process of any Court

12
or otherwise to secure the ends of justice, has to be exercised sparingly and with
circumspection. In exercising that jurisdiction, the High Court should not embark upon an
enquiry whether the allegations in the complaint are likely to be established by evidence or not.
That is the function of the trial Magistrate when the evidence comes before him. Though it is
neither possible nor advisable to lay down any inflexible rules to regulate that jurisdiction, one
thing, however, appears clear and it is that when the High Court is called upon to exercise this
jurisdiction to quash a proceeding at the stage of the Magistrate taking cognizance of an offence
the High Court is guided by the allegations, whether those allegations, set out in the complaint
or the charge-sheet, do not in law constitute or spell out any offence and that resort to criminal
proceedings would, in the circumstances, amount to an abuse of the process of the Court or
not”.

In Municipal Corporation of Delhi v. R. K. Rohatgi, 1983 (1) SCC 1 at page 6: (AIR 1983 SC
67) (at p. 70), Supreme Court reiterated: "It is, therefore; manifestly clear that proceedings
against an accused in the initial stages can be quashed only if on the face of the complaint or
the papers accompanying the same, no offence is constituted. In other words, the test is that
taking the allegations and the complaint as they are, without adding or subtracting anything, if
no offence is made out then the High Court will be justified in quashing the proceedings in
exercise of its powers under Sec. 482 of the present Code”.

Thus, only in cases where the High Court finds that there has been failure of justice or misuse
of Judicial mechanism or procedure, sentence or order was not correct, the High Court, in its
discretion, prevent the abuse of the process or miscarriage of justice by exercise of jurisdiction
under Sec 482 (Rajinder Prasad V. Bashir & Ors., J T 2001 97) SC 652).

Powers of High Courts and Supreme Court of India.

Though there are fundamental differences as to “further investigation’ and “re- investigation”,
it may be noted that, in a given situation, a Superior Court, High Court or Supreme Court, can
exercise the constitutional powers under section 226 and 32 respectively of the Constitution of
India, and could direct a “State” to get an offence investigated and / or further investigated by
a different agency Mithabhai Pashbahi Patel V. State of Gujarat ( 2009 6 SCC 332).

13
In Vineet Narain & Others V. Union of India (1988) 1 SCC 266, Supreme Court held “We
have taken the view that, given the political personalities of the propel to be investigated in the
"Jain diaries" case and the time already lost in commencing the investigation it was
advantageous not to hear the matter through and issue a writ of mandamus, leaving it to the
authorities to comply with it, but to keep the matter pending while the investigations were being
carried on, ensuring that this was done by monitoring them from time to time and issuing orders
in this behalf.

The sum and substance is that the CBI and other Governmental agencies had not carried out
their public duty to investigate the offences disclosed; that none stands above the law so that
an alleged offence by him is not required to be investigated; that we would monitor the
investigations, in the sense that we would do what we permissibly could to see that the sense
that we would do what we permissibly could to see that the investigations progressed while yet
ensuring that we did not direct or channel those investigations or in any other manner prejudice
the right of those who might be accused to a full and fair trial. We made it clear that the task
of the monitoring court would and the moment a charge-sheet was filed in respect of a particular
investigation and that the ordinary processes of the law would then take over. Having regard
to the direction in which the investigations were leading, we found it necessary to direct the
CBI not to report the progress of the investigations to the person occupying the highest office
in the political executive this was done to eliminate any impression of bias or lack of fairness
or objectivity and to maintain the credibility of the investigations. In short, the procedure
adopted was of "continuing mandamus".

Thus, Supreme Court directed:-

1. The Central Vigilance Commission (CVC) shall be given statutory status.
2. Selection for the post of Central Vigilance Commissioner shall be made by a Committee
comprising the Prime Minister, Home Minister and the Leader of the Opposition from a panel
of outstanding civil servants and others with impeccable integrity to be furnished by the
Cabinet Secretary. The appointment shall be made by the President on the basis of the
recommendations made by the Committee. This shall be done immediately.
3. The CVC shall be responsible for the efficient functioning of the CBI. While Government
shall remain answerable for the CBI's functioning, to introduce visible objectivity in the
mechanism to be established for over viewing the CBI's working, the CVC shall be entrusted
with the responsibility of superintendence over the CBI's functioning. The CBI shall report to

14
the CVC about cases taken up by it for investigation; progress of investigations; cases in which
charge sheets are filed and their progress. The CVC shall review the progress of all cases moved
by the CBI for sanction of prosecution of public servants which are pending with competent
authorities, especially those in which sanction has been delayed or refused.
4. The Central Government shall take all measures necessary to ensure that the CBI functions
effectively and efficiently and is viewed as a non-partisan agency.
5. The CVC shall have a separate section in its Annual Report on the CBI's functioning after
the supervisory function is transferred to it.
6. Recommendations for appointment of the Director, CBI shall be made by a Committee
headed by the Central Vigilance Commissioner with the Home Secretary and Secretary
(Personnel) as members. The views of the incumbent Director shall be considered by the
Committee for making the best choice. The Committee shall draw up a panel of IPS officers
on the basis of their seniority, integrity, experience in investigation and anti - corruption work.
The final selection shall be made by Appointments Committee of the Cabinet (ACC) from the
panel recommended by the Selection Committee. If none among the panel is found suitable,
the reasons the reasons thereof shall be recorded and the Committee asked to draw up a fresh
panel.
7. The Director, CBI shall have a minimum tenure of two years, regardless of the date of his
superannuation. This would ensure that an officer suitable in all respects is not ignored merely
because he has less than two years to superannuate from the date of his appointment.
8. The transfer of an incumbent Director, CBI in an extraordinary situation, including the need
for him to take up a more important assignment, should have the approval of the Selection
Committee.
9. The Director, CBI shall have full freedom for allocation of work within the agency as also
for constituting teams for investigations. Any change made by the Director, CBI in the Head
of an investigative team should be for cogent reasons and for improvement in investigation,
the reasons being recorded.
10. Selection/extension of tenure of officers up to the level of Joint Director (JD) shall be
decided by a Board comprising the central Vigilance Commissioner, Home Secretary and
Secretary (Personnel) with the Director, CBI providing the necessary inputs. The extension of
tenure or premature repatriation of officers up to the level of Joint Director shall be with final
approval of the Board. Only cases pertaining to the appointment or extension of tenure of
officers of the rank of Joint Director or above shall be referred to the Appointments Committee
of the Cabinet (ACC) for decision.

15
11. Proposals for improvement of infrastructure, methods of investigation, etc. should be
decided urgently. In order to strengthen CBI's in-house expertise, professionals from the
revenue, banking and security sectors should be inducted into the CBI.
12. The CBI Manual based on statutory provisions of the Cr. P.C. provides essential guidelines
for the CBI's functioning. It is imperative that the CBI adheres scrupulously to the provisions
in the Manual in relation to its investigative functions, like raids, seizure and arrests. Any
deviation from the established procedure should be viewed seriously and severe disciplinary
action taken against the concerned officials.
13. The Director, CBI shall be responsible for ensuring the filing of charge sheets in courts
within the stipulated time limits, and the matter should be kept under constant review by the
Director, CBI
14. A document on CBI's functioning should be published within three months to provide the
public with feedback on investigations and information for redress of genuine grievances in a
manner which does not compromise with the operational requirements of the CBI.
15. Time limit of three months for grant of sanction for prosecution must be strictly adhered
to. However, additional time of one month may be allowed where consultation is required with
the Attorney General (AG) or any other law officer in the AG's office.
16. The Director, CBI should conduct regular appraisal of personnel to prevent corruption
and/or inefficiency in the agency.

Limitations of power of the High Court under Article 226

In the State of Maharashtra v. Abdul Hamid Haji Mohammed, 1994 (2) SCC 664: (1994 AIR
SCW 2930), after holding that the High Court in writ petition under Article 226 can interfere
only in extreme cases where charges ex facie does not constitute offence under TADA it was
held in paragraph 7 at pages 669-70: (at p. 2934 of SCW) as under:
"The first question is: Whether the High Court was empowered in the present case to invoke
its jurisdiction under Article 226 of the Constitution to examine the correctness of the view
taken by the Designated Court and to quash the prosecution of the respondent under the TADA
Act? Shri Jethmalani contended, placing reliance on the decisions in R. P. Kapur v. State of
Punjab, and State of Haryana v. Bhajan Lal, 1992 that in the facts of this case, the High Court
had such a jurisdiction since there is no accusation against the respondent in the charge-sheet
filed in the Designated Court which, if believed, must result in his conviction for an offence
punishable under TADA Act. We are not impressed by this argument of Shri. Jethmalani. It is

16
no doubt true that in an extreme case if the only accusation against the respondent prosecuted
in the Designated Court in accordance with the provisions of TADA Act is such that ex facie
it cannot constitute an offence punishable under TADA Act, then the High Court may be
justified in invoking the power under Article 226 of the Constitution on the ground that the
detention of the accused is not under the provisions of TADA Act. We may hasten to add that
this can happen only in extreme cases which would be rare and that power of the High Court
is not exercisable in cases like the present where it may be debatable whether the direct
accusation made in conjunction with the attendant circumstances, if proved to be true, is likely
to result in conviction for an offence under TADA Act. The moment there is a debatable area
in the case, it is not amenable to the writ jurisdiction of the High Court under Article 226 of
the Constitution and the gamut of the procedure prescribed under TADA Act must be followed,
namely, raising the objection before the Designated Court and, if necessary, challenging the
order of the Designated Court by appeal in the Supreme Court as provided in Sec. 19 of TADA
Act. In view of the express provision of appeal to the Supreme Court against any judgment,
sentence or order, not being an interlocutory order of a Designated Court, there is no occasion
for the High Court to examine merits of the order made by the Designated Court that the Act
applies. We have no doubt that in the present case wherein the High Court had to perform the
laboured exercise of scrutinizing the material containing the accusation made against the
respondent and the merits of the findings recorded by the Designated Court holding that the
provisions of TADA Act were attracted, there was sufficient indication that the writ jurisdiction
of the High Court under Article 226 of the Constitution was not available. The ratio of the
decisions of this Court in R. P. Kapur and Bhajan Lal on which reliance is placed by Shri.
Jethmalani, has no application to the facts of the present case. There was thus no justification
for the High Court in the present case to exercise its jurisdiction under Article 226 of the
Constitution for examining the merits of the controversy much less for quashing the
prosecution of respondent Abdul Hamid in the Designated Court for offences punishable under
TADA Act."

In State of Bihar v. P.P. Sharma, 1992 (I) SCC 222: (1991 AIR SCW 1034), Supreme Court
had ruled that writ petition should not be entertained against charge-sheet while exercising
jurisdiction. If the matter is considered on merits in the guise of prima facie evidence, it would
amount to a pre-trial.

17
In State of Bihar v. P.P. Sharma, 1992 Supp (1) SCC 222 at pp. 224-225: (1991 AIR SCW
1034) (at pp. 1052, 1067, 1068), the Supreme Court held:
"At a stage when the police report under Section 173, Cr. P. C. has been forwarded to the
Magistrate after completion of the investigation and the material collected by the Investigating
Officer is under the gaze of judicial scrutiny, the High Court would do well to discipline itself
not to undertake quashing proceedings in exercise of its inherent jurisdiction. In this case the
High Court fell into grave error in appreciating the documents and affidavits produced before
it by treating them as evidence, delving into the disputed questions of fact in its jurisdiction
under Article 226/227 and pronouncing the respondents to be innocent and quashing the
criminal proceedings by converting itself into a trial Court. This was not at all a case where
High Court should have interfered in the exercise of its inherent jurisdiction. The appreciation
of evidence is the function of the criminal Courts the Special Judge was seized of the matter.
He had heard the argument on the question of cognizance and had reserved the orders. The
High Court did not even permit the Special Judge to pronounce the orders. The High Court,
under the circumstances, could not have assumed jurisdiction and put an end to the process of
investigation and trial provided under the law.
....Entertaining the writ petitions against charge-sheet and considering the matter on merit on
the guise of prima facie evidence to stand an accused for trial amounts to pre-trial of a criminal
trial under Article 226 or 227 even before the competent Magistrate or the Sessions Court takes
cognizance of the offence. The charge-sheet and the evidence placed in support thereof form
the base to take or refuse to take cognizance by the competent Court. It is not the case that no
offence had been made out in the charge sheets and the first information report. Grossest error
of a criminal case in exercising its extraordinary jurisdiction under Art. 226. ....."

Investigation by Special Agencies like CID , CBI, and NIA

The Police Commission of 1902-03, recommended the formation of a Criminal Investigation

Department for each of the provinces, and that the Criminal Investigation Department (CID)
should be constituted under Deputy Inspector General of Police for the purpose of collecting
and distributing information regarding organized crimes as well as to undertake the
investigation of specialized crimes that require technical expertise. On 21 March, 1905,
Government of India accepted the proposal of the Commission and implemented the same.

18
The CID takes over matters usually by a request from the State government and, or on the
Directives of Director General of Police of the concerned State. Other than these, CID conducts
investigation under the Supreme Court or High Court Orders.

The Central Bureau of Investigation traces its origin to the Special Police Establishment (SPE)
which was set up in 1941 by the Government of India. The functions of the SPE then were to
investigate cases of bribery and corruption in transactions with the War & Supply Department
of India during World War II. Superintendence of the S.P.E. was vested with the War
Department.

Even after the end of the War, the need for a Central Government agency to investigate cases
of bribery and corruption by Central Government employees was felt. The Delhi Special Police
Establishment Act was therefore brought into force in 1946. This Act transferred the
superintendence of the SPE to the Home Department and its functions were enlarged to cover
all departments of the Govt. of India. The jurisdiction of the SPE extended to all the Union
Territories and could be extended also to the States with the consent of the State Government
concerned.

The DSPE acquired its popular current name, Central Bureau of Investigation (CBI), through
a Home Ministry resolution dated 1.4.1963. Initially the offences that were notified by the
Central Government related only to corruption by Central Govt. servants. In due course, with
the setting up of a large number of public sector undertakings, the employees of these
undertakings were also brought under CBI purview. Similarly, with the nationalization of the
banks in 1969, the Public Sector Banks and their employees also came within the ambit of the
CBI.

The CBI takes over matters usually by a request from State government to Central government,
and Central government agrees based on CBI comments. Other than these, CBI conducts
investigation under the Supreme Court or High Court Orders.

Central Vigilance Commission is the authority of superintendence of CBI in the matter of

Prevention of Corruption Act, 1988; and in other matters, by Department of Personnel and
Training (DOPT).

19
National Investigation Agency (N I A), was formed after the terrorist attack in Mumbai, for
exclusive investigation into Terrorist and anti-national activities. Subject to the fact and
situation of each case the superior courts, at any time, can direct investigation by the superior
agency of the country.

In Uma Shankar Sitani v. Commissioner of Police, Delhi, 1995 Cri. L J 3612 P. 3613 9 SC),
the Supreme Court was of the opinion that the matter was to be investigated by an Independent
Agency. Further, in Nirmal Singh Kahlon V. State of Punjab & Others (2009 1 SCC 441), the
Supreme Court has sustained the order of High Court, directing investigation by the CBI even
after the filing of charge –sheet by the State Police. In P&H High Court Bar Association v.
State of Punjab, 1994 Cr. L.J 1368, A.I.R 1994 SC 1023 it was held that the facts and
circumstances of the case on hand, and to do complete justice in the matter and further to instill
confidence in the public mind it is necessary to have fresh investigation in the case through a
specialized agency like the Central Bureau of Investigation (CBI).

In A. Nallasivam V. State of Tamil Nadu, 1995 Cri L J 2754., the Madras High Court relied on
Syed Kaleenullah v. The Appraising Officer, Special Investigation Branch, Customs House,
Madras - 1 Crl. O.P. No. 5540 of 1993, wherein in a similar situation the High Court of Madras
directed investigation by the Central Bureau of Investigation and the relevant observation
therein is as follows :-
"To my mind, it appears that an effective and impartial investigation is totally necessary. No
useful purpose will be served by allowing the customs officials to investigate the matter any
further. Therefore, I am firmly of the view that further investigation must be conducted by the
CBI quickly and effectively, to find out all those involved in this crime of very great magnitude
and place them before the Judicial authority for trial.

In State of West Bengal v. Sampatlal , 1985 A I R 195 / SCR (2) 256, the Supreme Court has
held that when a direction is issued by the Court to the CBI to conduct investigation in the
crime, sanction under Section 6 of the Delhi Special Police Establishment Act was not
necessary.

Likewise, in Inder Singh v. State of Punjab, 1997 8 SCC 372, the Supreme Court has ordered
investigation by directing, the Central Bureau of Investigation, when the allegation was
abduction of seven persons ranging in age from 85 to 14 years by a senior police officer and

20
some policemen, using official machinery for the purpose and when the Court found that the
State police was acting leisurely and in irresponsible manner.

Thus, the Madras High Court in A. Nallasivam’s case held that the Central Bureau of
Investigation has to find out all those involved in the relevant crimes and place them before the
Judicial Authority for trial. The Central Bureau of Investigation was also directed to submit a
report to this court as to what it has done in the matter

The Supreme Court can exercise its powers under Art. 142 to order a CBI enquiry without State
government consent where such consent was required by the Statue. In Association of
Protection...V. St. of West Bengal and others 2007 (4) CHN 842, The Calcutta High Court held
that the powers of the High Court under Article 226 of the Constitution and of the Supreme
Court under Article 32 or Article 142(1) of the Constitution can be invoked, though sparingly,
for giving such direction to CBI to investigate in certain cases, (vide Kashmiri Devi V. Delhi
Administration and another 1988 AIR 1323). A two- Judge Bench of the Supreme Court has
by an order dated 10.03.1989, referred the question whether the High Court can order CBI to
investigate a cognizable offence committed within a State without the consent of that State
Government or without any notification or order having been issued in that behalf under
Section 6 of the Delhi Act.

Power to take Suo moto cases by Superior Courts.

The facts of State of Punjab V. Central Bureau of Investigation & Others, SLP Criminal No.
792 / 2008, (2011) 11 SCR 281 was :- On 13.11.2007, a news item was published in the
Hindustan Times headlined ‘Moga Sex Scandal’ and two ladies, namely, respondent no.3 of
Village Varsaal and her relative Manjeet Kaur of Village Badduwal had been arrested. This
news was also published in the Tribune dated 12.11.2007:-- The High Court took Suo motu
notice of the news items and issued notices to the State of Punjab, Senior Superintendent of
Police, Moga and Deputy Inspector General of Police, Ferozpur Range and directed the Deputy
Superintendent of Police, Bhupinder Singh, who was investigating into the case, to file the
status report of the investigation on the next date of hearing.

Matter was taken up the State of Punjab under Article 136 of the Indian Constitution. The
Supreme Court held that :- In “State of West Bengal and Others v. Committee for Protection

21
of Democratic Rights, West Bengal and Others [(2010) 2 SCC 571] a Constitution Bench of
this Court, while holding that no Act of Parliament can exclude or curtail the powers of the
High Court under Article 226 of the Constitution, has cautioned that the extra-ordinary powers
of the High Court under Article 226 of the Constitution must be exercised sparingly, cautiously
and in exceptional situations where it becomes necessary to provide credibility and confidence
in investigation or where the incident may have national or international ramifications or where
such an order may be necessary for doing complete justice and enforcing fundamental rights.
This caution equally applies to the cases where the High Court exercises inherent powers under
Section 482 of the Cr.P.C. to direct investigation by the CBI for securing the ends of justice
held, where charge sheet has been filed, and High Court held that the same cannot limit or
affect the inherent power of High Court to pass an Order u/s 482 for fresh investigation or re-
investigation is necessary to serve the ends of justice. This was a case where senior
functionaries of the State Police and political leaders were involved, and justice would not be
done if local police investigated, and thereby the High Court given direction u/s 482 Cr.P.C for
fresh investigation by CBI”.
Hence, concluded that it is not a fit case in which Supreme Court should exercise its powers
under Article 136 of the Constitution and grant leave to appeal. The Special Leave Petition
therefore dismissed

Completion of Investigation

As soon as investigation is complete, according to Sec 173 (2) of Cr. P.C, the Officer–In–
Charge 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 concerned Sate
Government. , and further investigation report, if any. However, the Report should contain
accompaniments which are required to be submitted under Sec 173(5) Cr.P.C, (Matchumari
Venkatarreddy V. State of Andhra Pradesh, 1994 Cri L J 257).

Cognizance and Dismissal of a Complaint or Discharge of the accused

On receipt of a Police Report, the Magistrate may (must) take cognizance, and shall decide, as
per Sec 190(1) (b) Cr. P.C, or proceed as per alternatives available with him under Cr.P.C. If
there is no sufficient ground for proceeding, Magistrate shall dismiss the complaint, as per Sec
203 of Cr.P.C, and shall briefly record his reasoning. Whereas in charge-sheeted case, upon

22
consideration of the record of the cases and the documents submitted, and after submission of
the accused and by the prosecution, if the judge considers that there is no sufficient ground for
proceeding, judge can discharge the accused u/s 227 of Cr. P.C; or to proceed for framing
charges as pr Sec 228 Cr. P.C.

23
 CHAPTER 3

COMMON LAPSES AND MALPRACTICES IN INVATIGATIVE PROCESS

Delay in filing FIR

The delay in registering FIR can be of three types. First is delay caused by the informant in
getting the FIR registered with the Police and secondly the delay on part of the police in getting
the FIR registered and thirdly delay in dispatching the FIR to the magistrate.

Delay in Lodging FIR By Informant

There is no duration of time which is fixed either by the legislature or the judiciary for giving
information of a crime to the police. However, it has been observed that FIR has to be filed
within reasonable time. The question of reasonable time being a matter is for determination
of court in each case. Mere delay in lodging the FIR with the police is therefore, not
necessarily, as a matter of law, fatal to prosecution. The effect of delay in doing so in the
light of the plausibility of the explanation forthcoming for such delay accordingly must fall
for consideration on all the facts and circumstances of a given case[5]. Even a long delay in
lodging FIR in murder can be condoned if witnesses have no motive of implicating accused
and have given plausible reason for delay. In the case of State of Rajasthan v. Om Prakash[6]
the Supreme Court observed that there was delay of nearly 26 hours in lodging the FIR. But
this did not affect the prosecution case as the case related to rape of a minor as in such case
the reputation and prestige of the family and career and life of a young child was involved.

Although FIR is not substantive evidence, it cannot be denied that it has probative value. If
there is unexplained delay in lodging FIR it can be fatal to the prosecution case. Although
delay in filing FIR does not result in quashing the FIR but nevertheless gives rise to suspicion
which puts the court on guard to look for the possible motive. Delay in giving first
information can be condoned if there is satisfactory explanation.

Delay by Police in Recording FIR By Police in Charge

At the stage of registration of a crime or the case, on the basis of information disclosing a
cognizable offence in compliance of the mandate of Section 154 of CrPc the concerned police

24
officer cannot embark upon an inquiry as to whether information laid by the informant is
reliable or genuine and to refuse registration of a case on that ground. It is therefore
manifestly clear that if the information disclosing cognizable offence is laid before a police
officer in charge of a police station satisfying the requirements of Section 154(1) of CrPC the
said officer has no other option except to enter the substance thereof in prescribed form that is
to register a case on basis of such information[7]

In the case of State of AP v. Punati Ramulu[8], the Supreme Court observed that
investigating officer has deliberately failed to record the FIR on receipt of information of a
cognizable offence of the nature, as in this case, and had prepared the FIR after reaching the
spot after due deliberations, consultations and discussions, the conclusion becomes
inescapable that the investigation is tainted and it would therefore, be unsafe to rely upon
such a tainted investigation, as one would not know where the police officer would have
stooped to fabricate evidence and create false clues.

The delay in registering FIR would make the FIR unreliable as well as bring suspicion on the
police officer and put a black mark on his method of working.
In the case of Mohindro v. State of Punjab, the complainant approached the police for
registering a case against the alleged accused but police never registered a case and never put
the law in motion and therefore she approached the high court.

The counsel for state argued that there has been an enquiry. The supreme court questioned
that how can there be an enquiry without registering a criminal case. The Apex court directed
that a case has to be registered on the basis of the report of the appellant and then the matter
has to be duly investigated

In an another case Abhay Nath Dubey v. State of Delhi where the police refused to register an
FIR and the High Court held that where a cognizable offence was prima facie disclosed and
he had no option but to embark on full-fledged inquiry too ascertain the genuineness or
reliability of such information and allegation and draw conclusions and render the
investigation redundant and to refuse registration of an FIR he would be breaching the
mandate of Section 154(1)[10]

The inaction of the police in non-registering an FIR was condemned by the Supreme Court in

25
the case of Lalitha Kumari v. State of UP. It showed frustration by observing that in spite of
law laid down by the court the police authorities concerned do not register FIRs unless some
direction is given by the Chief Judicial Magistrate of High Court of Supreme Court. In a large
number of cases, investigation do not commence even after registration of FIRs. The Court
reiterated that directions should be issued to the police to register FIR promptly and to give a
copy of the complainants. If the police do not comply with these instructions or initiate
investigation, magistrate could initiate contempt proceedings.

We have witnessed in the recent Unnao rape case how the accused went pillar to post for 4
months to get the FIR registered against the accused. The victim was raped in June 2017 and
she filed a complaint the very next day but an FIR was not registered. She then sent a
complaint to Superintendent of Police in Rai Bareli and then to High Court which directed
the police to register a complaint and it was finally registered in April 2018[12]. Instead of
protection to a physical and emotional victim there was only harassment all the way. The
court in this case transferred the case to CBI and this shows the inefficiency and laxity of
police as well as the political influence on system of police administration. In the recent rape
case of Veterinary doctor in Hyderabad where the victim’s family approached the police to
lodge a missing complaint the police is alleged to have made objectionable remarks instead of
registering an FIR and searching the victim.

In many cases where police officer refuse to register an FIR the matter does not reach the
court and offender goes Scot free. Refusal to register an FIR is a dereliction of duty of the
officer.

Delay by Police in Forwarding FIR To Magistrate

In cases of cognisable offence it the police delay in forwarding FIR to magistrate the trial and
the process is delayed and the accused may escape the claws of law. The police is cases like
theft are reluctant to record the FIR, instead they lodge a non-cognizable report (NCR) which
does not require them to investigate immediately. There is no time limit for sending the NCR
to magistrate for order of investigation so there is laxity in this matter. After 3-4 months NCR
is sent to magistrate when the traces of crime like theft, chain snatching is washed off.

26
Non-issuance of pre-arrest notice:

As per Section 41 A of the Code of Criminal Procedure (hereinafter, 'Cr. P.C.'), if any police
officer requires the participation of any individual who is not required to be fundamentally
arrested under Section 41(1) of Cr.P.C. or against whom a reasonable complaint has been made,
or credible information has been received, or a reasonable suspicion exists that he has
committed a cognizable offence, the official can give a notice for the equivalent.

The individual to whom the Notice is served is obliged to show up at the specified place and
time. The individual confirming to the Notice will not be arrested except if in any case
considered fit by the Police for which the official is duty-bound to record reasons in writing.
Inability to consent to the Notice is a ground for arrest.

In Arnesh Kumar's case, the directions laid down are a statutory set of instructions to avoid
unnecessary arrest. However, in this case, the safeguards deal with the incident of arrest and
the power of arrest itself is not curtailed thereby.

Violation of S. 160 CrPC:

Section 160 deals with Police officer' s power to require attendance of witnesses.

In cases where a notice under Section 160 of the Code is issued by the police, the police ought
to clearly spell out the details of the F.I.R/Case No. There are a score of benefits that accrue
basis this. An illustration would mend things in perspective, where a 160 notice delineates the
details of the F.I.R, and assuming the same is issued to an accused/one of the accused and
stipulates a period of two weeks for the noticee to appear before the police authorities in
furtherance of the investigation, then the noticee in such a case is at liberty to exercise his
legally permissible options within that time frame of two weeks against such a notice or the
F.I.R. The accused/noticee could utilize that time period to seek quashing of the F.I.R in
appropriate cases and could also pray for a stay of the investigation proceedings/stay of arrest.
This example is relevant firstly because, in cases of cognizable offences, the accused/noticee
is always vulnerable to an arrest by the police and secondly if the notice fails to give the details
of the F.I.R, it would not only be difficult for the accused/noticee to exercise his legal rights
but would also burden our already taxed Courts with unnecessary petitions seeking details from

27
where such a notice originates. Further, it can never be the intention of the legislature or the
Courts that there exists a period after the issuance of a 160 notice (one that fails to mention the
details of the F.I.R) wherein the noticee/accused is handicapped to initiate any legal remedy
available to him until call of the 160 notice is complied with. Thus, in appropriate cases, where
a Section 160 notice is issued, it would also serve well, the interests of all, to provide a copy
of the F.I.R to the noticee for him to optimally seek proper legal recourses and to choose from
an array of legal options that maybe available to the noticee.

Corruption by IO:

Often, it is seen that the IO isn't a man of impeccable reputation, and he accepts bribe to lead
the investigation astray.

In July 2022, it was reported from Shimla that Investigation Officer of a criminal case was
nabbed red handed while taking bribe of Rs 50000 by state anti-corruption sleuths here
Wednesday.
A Case( FIR No. 03/2022) was registered under section 7 of PC (Amended) Act, 2018 police
station SV&ACB, Shimla, has been registered against Krishan Lal S/o late Thebar Ram
resident of Bhanwar village under Police station Sundernagar and Mandi district.
The 56 years old accused is posted as Sub Inspector or Investigation Officer in Police Station
(Sadar) Shimla. On a tip , he was caught red handed by state vigilance and anti-corruption
bureau demanding and accepting Rs. 50000/- from a complainant, in lieu of favoring her in a
criminal case registered against her brother in Police Station Sadar Shimla.

Similarly, in July 2021, it was reported from New Delhi that a head constable and the
investigating officer (IO) in a case related to an alleged attack on two persons by a group of
men in Badarpur had been engaged in corruption. The constable had allegedly demanded the
bribe and received Rs 11,000 as part payment. A trap was laid by CBI and he was allegedly
caught red-handed on June 24 while demanding another Rs 8,000.
The court said that being the IO, it was his duty to investigate the matter impartially in the
interest of justice. “It also shows that the dominant position of the IO is sought to be
compromised against certain gains, which cannot be called legitimate. It is, hence, a very
serious and grave matter and cannot be brushed aside lightly towards the quantum of the trap
money.”

28
Not registering FIR

Sometimes police is unwilling to register a FIR whenever someone complaints about the
commission of an offence. This can be both legal and illegal. In cases where they don’t have
jurisdiction or is not in their legal capacity to take cognizance or the offence is of non-
cognizable nature, it will be held d legal. But where police refuses to file the complaint for
unconcealed reasons, without any substantial legal ground, it is contrary to law. Most of the
time it is not reported in order to reflect the peace in their area or to avoid laborious
investigation.

In Lalita Kumari vs. Govt. of Uttar Pradesh, the question before the Supreme Court was
whether a police officer is bound to register a First Information Report (FIR) upon receiving
any information relating to commission of a cognizable offence under section 154 of the Code
of Criminal Procedure, 1973 or the police officer has the power to conduct a preliminary
inquiry in order to test the veracity of such information before registering the same. The court
affirming the mandatory registration of FIR made the following observations:
• Registration of FIR is mandatory under section 154 of the Code if the information
discloses commission of a cognizable offence and no preliminary inquiry is permissible
in such a situation.
• If the information received does not disclose a cognizable offence but indicates the
necessity for an inquiry, a preliminary inquiry may be conducted only to ascertain
whether cognizable offence is disclosed or not.
• If the inquiry discloses the commission of a cognizable offence, the FIR must be
registered. In cases where preliminary inquiry ends in closing the complaint, a copy of
the entry of such closure must be supplied to the first informant forthwith and not later
than one week. It must disclose reasons in brief for closing the complaint and not
proceeding further.
• The police officer cannot avoid his duty of registering offence if cognizable offence is
disclosed. Action must be taken against erring officers who do not register the FIR if
information received by him discloses a cognizable offence.

29
 • The scope of preliminary inquiry is not to verify the veracity or otherwise of the
information received but only to ascertain whether the information reveals any
cognizable offence.
• As to what type and in which cases preliminary inquiry is to be conducted will depend
on the facts and circumstances of each case. The category of cases in which preliminary
inquiry may be made are as under:
• Matrimonial disputes/ family disputes, b) Commercial offences, c) Medical negligence
cases, d) Corruption cases and e) Cases where there is abnormal delay/laches in
initiating criminal prosecution, for example, over 3 months delay in reporting the matter
without satisfactorily explaining the reasons for delay.

The aforesaid are only illustrations and not exhaustive of all conditions which may warrant
preliminary inquiry.
• While ensuring and protecting the rights of the accused and the complainant, a
preliminary inquiry should be made time bound and, in any case, it should not exceed
7 days. The fact of such delay and the causes of it must be reflected in the General Diary
entry.
• Since the General Diary/Station Diary/Daily Diary is the record of all information
received in a police station, we direct that all information relating to cognizable
offences, whether resulting in registration of FIR or leading to an inquiry, must be
mandatorily and meticulously reflected in the said Diary and the decision to conduct a
preliminary inquiry must also be reflected, as mentioned above.”

Consequences of Non-Registration of FIR

Sub-section (c) of section 166A of the Indian Penal Code provides that whoever, being a public
servant fails to record any information given to him under sub-section (1) of section 154 of the
Code of Criminal Procedure, 1973 and in particular in relation to cognizable offence punishable
under section 354, section 354A, section 354B, section 354C, sub-section (2) of section 354D,
section 376, section 376A, section 376B, section 376C, section 376D or section 376E, section
509 shall be punished with rigorous imprisonment for a term which shall not be less than six
months but which may extend to two years and shall also be liable to fine.

30
This provision is not only applicable for certain offences against women but it makes
punishable the failure to record any information given to a public servant under Section 154(1),
which relates to registration of FIRs .Thus provision is applicable to any non-registration of
FIR under Section 154 of Criminal Procedure Code.
Therefore, if a police officer fails to register FIR on the basis of an information given to him
under Section 154 of the Criminal Procedure Code that discloses commission of a cognizable
offence, that police officer himself commits an offence under Section 166A(c) of the IPC. Such
a police officer can be punished for a term which may extend to one year or with fine or with
both.

Custodial violence and Custodial torture

• A recent instance of custodial violence took place in the State of Tamil Nadu in the
year 2020. Jayaraj and his son Fenix were picked up by the police for inquiry into
their alleged violation of the Indian Government’s COVID-19 lockdown rules. They
were sexually assaulted and tortured by the police which led to their deaths. The
torture continued for 7 hours and the police staff took turns in beating the two. They
were stripped naked which added to the brutality.

• In another case, 4 men accused of raping and murdering a 27-year-old veterinarian

were taken into custody. The news of rape had sparked a huge outrage all over the
country. The police during the investigation, fired upon the accused leading to their
death. This raised concerns about custodial violence and an inquiry was set up. A
panel headed by former SC Judge V.S. Sirpurkar found that the police fired at the
accused with an intention to cause death. The panel recommended filing murder
charges against the 10 policemen responsible for it.

• Recently Vikas Dubey, a gangster, was arrested for killing eight police personnel in
Kanpur. While he was being transported the next day, the vehicle carrying him met
with an accident and overturned. The police alleged that while a policeman was
fixing a flat tire, Dubey snatched his gun and tried to flee. This provoked the police
and he had to be shot. There have been several clues indicating that this was staged
and that it was another case of custodial violence.

D.K. Basu vs. State of West Bengal, 1997:

31
This case is important because the Supreme Court in this case recognised custodial violence
and police brutality. It stated that custodial violence is an attack on the dignity of a human
being. The court noted that enacting recommendations and policies have had no effect as a
death in police custody is increasing at an increasing rate. In this case, the Supreme Court laid
down 11 guidelines that are to be followed while making an arrest. These guidelines consist of
various rights that are available to every arrested person.

1. The police personnel must bear name tags with their designations while making
arrests or conducting an interrogation.

2. Arrest memo to be prepared and copy of it to be attested by a family member or a

respectable person of the locality. It must also be signed by the arrestee and must
include the date and time of the arrest.

3. In cases where a relative or family member of the arrestee is not present during the
arrest, he is entitled to inform one friend or relative or other person having an interest
in his welfare, of the arrest and location of detention.

4. Within 8-12 hours, the relative or friend of the arrestee must be informed of the time,
place of arrest, and venue of custody if they live outside the district or town.

5. Person arrested to be made aware of his right to inform someone of his arrest.

6. An entry to be made in the diary of the place of detention, name of the friend who
has been informed, and names and particulars of police officials in whose custody
the arrestee is.

7. Major and minor injuries to be recorded at the time of arrest and to be signed by
both the arrestee and the police officer. A copy of it is to be provided to the arrestee.

8. Medical examination by a doctor every 48 hours during the arrestee’s detention.

9. Copies of all documents are to be sent to the Magistrate.

10. Arrestees may be permitted to meet their lawyer during interrogation.

11. A police control room to be provided in all districts and arrests to be intimated within
12 hours to the control room.

32
Planting of evidence/ Fabricating false evidence

Sometimes, false version of events is noted down in case diary and witnesses are planted by
either IO or the accused. It has also been seen that false discoveries are shown and based on
that innocent persons are made accused in a crime.

Fabricating false evidence is an offence under Section 192 of Indian Penal Code. Some of the
illustrations given in Section 192 itself are as follows:

(a) A puts jewels into a box belonging to Z, with the intention that they may be found in that
box, and that this circumstance may cause Z to be convicted of theft. A has fabricated false
evidence.
(b) A makes a false entry in his shop-book for the purpose of using it as corroborative evidence
in a Court of Justice. A has fabricated false evidence.
(c) A, with the intention of causing Z to be convicted of a criminal conspiracy, writes a letter
in imitation of Z's handwriting, purporting to be addressed to an accomplice in such criminal
conspiracy, and puts the letter in a place which he knows that the officers of the police are
likely to search. A has fabricated false evidence.

Lack of forensic test on the crime scene

A report showed there’s a staggering pendency of 20,000 forensic tests at a Forensic Science
Laboratory (FSL) catering to Delhi police, and backlogs go up to 4-5 years. Forensics – chiefly
cyber, biological/DNA, chemistry and ballistics – are at the core of modern criminal investigation.
Also, good and timely forensic results upgrade the credibility of the justice system. However, for
every police force in the country, and not just Delhi’s, the forensic process is of little help.

Orders of the constitutional courts have noted the severe understaffing of FSLs. In Delhi, over
40% of sanctioned posts are lying vacant, in Karnataka and Haryana the figure is 64%. In Odisha,
which has the inglorious distinction of posting India’s second lowest conviction rate, 70% of
scientific officer posts and 40% of assistant SO posts were vacant. Even CBI, India’s premier
crime investigation agency, has blamed delay at the Central FSL end for its huge pendency rate.

Chargesheets are often filed without forensic reports because of the long delay in getting results.
In a domino effect, trials get delayed and under-trial prisoners are incarcerated longer. While

33
police look good in NCRB reports thanks to a high charge-sheeting rate, courts, hampered by lack
of evidence, preside over pendency rates of over 90% in rape and other serious offences.

Forensic labs aren’t uniformly distributed either. More populous UP and Bengal had four and two
functional regional FSLs respectively while much smaller Andhra Pradesh and Telangana had
five each in 2021. With emphasis shifting to mobile labs and crime scene expertise, many more
personnel are needed. Institutions like the National Forensic Sciences University can help tide
over shortage of experts. But governments must start allocating more funds to forensic
departments for upgrading technologies and filling vacancies.

34
 CHAPTER IV

CONCLUSION AND SUGGESTIONS

A few cases where the factors which impact the investigation process are given as below:

In Director, CBI v. Niyamavedi rep. by its Member K. Nandini, Advocate, [1995], it was laid
down that courts should not interfere in the investigation process when it is in progress in a
case. The observations/comments of the Court may derail the investigation and should be
avoided.

In Hussainara Khatoon v. Home Secretary, State of Bihar, [1979] it was held that Section
167(5) of CrPC is to be mandatorily complied with. The provision prescribes that a case which
is triable by a Magistrate as a summons case, and the investigation is not completed within 6
months from the date of arrest of accused, the Magistrate will have to make an order stopping
a further investigation into the offence. However, if the investigating officer satisfies the
Magistrate that the continuation of investigation beyond 6 months is necessary for the interest
of justice, then it shall be continued. The Supreme Court observed that since many under-trial
prisoners are languishing in jail, in these kinds of cases, Section 167(5) should be strictly
complied with. This provision enables the police to not be lethargic during the investigation
process and safeguards the interests of the under-trial prisoners who should not suffer in jail
more than their maximum punishment for their offence.

In CBI v. R.S. Pai, [2002], it was noted by the Supreme Court that if there is a mistake in not
producing all relevant materials at the time of submission of the charge sheet, then additional
documents can be allowed to be produced after the charge sheet with the permission of the
Court.

In Rotash v. State of Rajasthan, [2006] the truthfulness of FIR was in question as it did not
contain all the details in respect of the number of accused at the time of the registration. Another
accused was named later which can be allowed only when there is a satisfactory reason for
mentioning it in the first instance.

35
Delay in lodging of the FIR can prove fatal to the case as held by the Apex Court in Dilawar
Singh v. State of Delhi, [2007]. Delay can leave room for the complainant to make fabrications
upon the complaint. As a consequence, courts view the delay with suspicion and examine the
evidence adduced with a greater degree of caution and diligence.

In Ramesh Baburao v. State of Maharashtra, [2008], there were issues in the FIR as it was
stated to be antedated and did not contain all details as known to the informant. The question
was whether the second report lodged can be treated as the first FIR. The Court held that FIR
in a murder case has to be filed at the first instance without delay with all the information in
respect of the names of all the accused, names of eye-witnesses, weapons used etc.

In Hari Yadav v. State of Bihar, [2008], it was observed by the Apex Court that case diary has
to be maintained with due care and caution otherwise it may lead to the wrong acquittal of the
accused.

Section 167 deals with procedures when the investigation is not completed within 24 hours of
custody of the accused. The Magistrate has the power to detain the accused for a longer period
for the investigation to be completed by the officer in charge of the police station. In Dinesh
Dalmia v. Central Bureau of Investigation, [2008], it was noted that the object of the aforesaid
provision is to ensure that the police are vigilant in investigation and do not unnecessarily delay
the process. Sufficient incriminating material has to be collected within a reasonable time. This
provision is beneficial for the accused as after the expiry of the stipulated period of custody or
detention, the accused is entitled to file for bail on merits.

In Motilal v. State of Rajasthan, [2009], the investigation was remarked to be “Faulty” as the
inquest report had the date and time as 11th Nov 1993 at 10:30 and the FIR had the date as
11th Nov at 10:50 AM. The FIR was antedated and the Magistrate received the report only
after an unexplained delay of 5 days on 16th Nov.

In Zindar Ali v. State of West Bengal, [2009], the victim was allegedly raped by the accused
Zindar Ali. The victim woman went to the police station to file the complaint, however, the
police officer in charge refused to lodge the FIR and advised the victim to settle the matter.
Later, the Chief Judicial Magistrate ordered the police to register the case. Despite the order,
the police took 5 months to commence the investigation. This delay by the police officer was

36
extremely fatal as the quality of medical evidence has deteriorated after 6 months of the
incident. This investigation process was highly criticized by the court.

Improvements that can be made in the state of investigation process

1. The timely lodging of FIR will improve the rate of conviction.

2. Negating the gravity of offences or false implications should be strictly penalized.

3. Inordinate delay in visiting the crime scene should be avoided. The reconstruction
of the crime scene should be done immediately after the registration of FIR.

4. Genuine and regular entries should be made in General Diaries maintained during
the investigation under Section 172 of the Criminal Procedure Code.

5. Scientific experts should be increased in the clues team for a better and faster
investigation process.

6. Intensive and practical training needs to be regularly imparted on police personnel

in respect of procedures and law.

7. Improving the infrastructure and updating the technology in the police stations is
the need of the hour.

8. Section 164 of CrPC deals with the procedure of recording confessions and
statements. Confession must lead to some discovery of material to make it
admissible in court.

9. Separating other duties of police from the investigation will reduce the burden of
too many tasks on a limited number of police officers.

10. The media’s interference should be restricted since it has the potential to hamper the
investigation.

11. The statements of witnesses should be recorded through audio-visual means and
should be submitted to court immediately to minimize manipulations and
alterations.

12. Video graphing can prove to be useful in proving that there was no use of
threat/coercion to record the statements.

37
 13. Police accountability has to be made stricter and any lapse on their part should not
be excused.

14. A legal officer should be appointed to assist the police during the investigation
process. It can help the police officers to know the intricacies of the law of evidence.

15. Witnesses can be given a travel allowance which will act as an incentive to come
forward and prove evidence.

16. Salaries of the police personnel should be increased as per their burden of work.

17. The investigating officer should be present throughout the trial to give necessary
inputs to the judge as and when required.

The investigation includes finding the guilty, gathering evidence, identifying witnesses, and
ascertaining if the crime has happened. It is crucial that this entire process is not interfered with
and is conducted with proper means and assistance. Otherwise, justice will be denied at the
hands of our legal system to many victims.

38
 BIBLIOGRAPHY

Books

1. R V Kelkar's Lectures on criminal procedure (4th edition)(2006)

2. CK Takwani's Criminal procedure (4th edition)(2015)

Online resources

1. [Link]
2. [Link]
worry/#Lapses_that_occur_during_the_investigation_process
3. [Link]
4. [Link]
5. [Link]
procedure1973--to-attend-or-not-to-attend
6. [Link]
high-court-201442
7. [Link]
sec-41a-crpc-while-arresting-an-accused-read-order-183760
8. [Link]
[Link]
9. [Link]
[Link]

Reports

1. Law Commission of India report no. 154

2. Report of Committee on Reforms of Criminal Justice System (Justice Malimath
Committee report)

39