File Copyright Online - File mutual Divorce in Delhi - Online Legal Advice - Lawyers in India

Investigation And Chargesheet

Investigation and chargesheet form the genesis of the Criminal Trial. Chargesheet is the outcome of investigation. Under Section 157 of the Code of Criminal Procedure, the procedure of investigation in criminal cases has been incorporated. It requires the intimation of information to the police officer on the commission of a crime.

Before the commencement of the investigation, the police officer has to satisfy himself about certain grounds. If the grounds are present, the investigation shall be begun with. What is the procedure followed by the police while investigating a criminal case? Let's take a look –-

Investigation:

The procedure elaborated below is the one for cognizable offences. The investigation includes all the procedures which are done by the police officer under the Code for the collection of evidence. The investigation may be conducted by a police officer who has been assigned the case.

The Magistrate can also authorize any other person to conduct the investigation on his behalf. The police on registration of FIR shall upon perusal of the facts of the case decide the line of investigation i.e whether there is circumstantial evidence or eyewitnesses.

Circumstantial evidence is the something which is a chain of circumstances that lead to the crime for example previous animosity, threats, last seen theory. It is basically connection of various circumstances to the crime. On the other hand eyewitnesses are those who have seen the incident take place.

Three types of reports are required to be prepared at three different stages of investigation are as follows:

  1. A preliminary report from the officer-in-charge of a police station to the Magistrate under Section 157.
  2. Section 168 requires the submission of a report from a subordinate officer to the officer-in-charge of the station.
  3. Section 173 requires a final report to be submitted to the Magistrate as soon as the investigation is completed.

The investigation of a case begins after the preliminary report is submitted by the police officer to the Magistrate.
  1. Sending Report To The Magistrate:

    The report which is sent to the Magistrate is defined as the police report. It is forwarded by the Police Officer to the Magistrate. This is the Preliminary Report which informs the Magistrate that the police officer shall be investigating that particular case.

    Section 158 of the Code of Criminal Procedure speaks about the submission of the report to the Magistrate. It is done so that the Magistrate is able to control the investigation process and give any directions under Section 159 of the Code of Criminal Procedure if necessary. The directions were the instructions given to the Police Officer for conducting the investigation. If the police officer is not pursuing the investigation further, this has to be mentioned in the report which is to be sent to the magistrate.

  2. Report To Be Sent Without Any Delay


    The Report needs to be sent to the magistrate without any delay. In Nalli v. State, the Madras High Court had to acquit a person accused of murder on the grounds that an unexplained and inordinate delay was there in dispatching the first information report to the Magistrate however the Hon'ble Supreme Court in Ombir Singh V. State of Uttar Pradesh and Another on 26/5/2020 has held that mere delay in forwarding FIR to Magistrate by itself is not a ground to acquit the accused. The report has to be sent in a reasonable amount of time i.e 24 hours.

    The use of the term forthwith in Section 157(1) was explained by the Hon'ble Supreme Court in Alla China Apparao v. State of Andhra Pradesh stating that the expression forthwith would undoubtedly mean within a reasonable time and without unreasonable day. If any delay is being caused in sending the report, it should be explained properly citing the reasons for the same.

Order Of Investigation By The Magistrate

Under Section 159 of the Code, the Magistrate has been given the powers to direct an investigation into the case. If on receiving the report, the Magistrate thinks fit that it is necessary to conduct an investigation, he shall direct a subordinate magistrate to conduct a preliminary inquiry.

The magistrate can also off the case in the manner provided by the Code if sufficient grounds are not present.

However, the Magistrate has not been empowered to stop an investigation, after the commencement of the same. In S.N. Sharma v. Bipen Kumar, it was held by the Supreme Court that the Magistrate has no power to stop the investigation and direct magisterial inquiry.

Investigation in a country or place outside India (Section 166A)
In the course of an investigation of an offence, it is required that the investigation or search has to be carried out in a country or a place outside India. For doing so, an application of request can be made by the investigating officer, and any Criminal Court may issue a letter of request to the Court or any authority of that country. 1. Procedure Relating to Accused
The Procedure Relating to Accused is mentioned in Section 41 in The Code Of Criminal Procedure, 1973 it states when police may arrest without warrant.
  1. who has been concerned in any cognizable offence, or against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists, of his having been so concerned; or
     
  2. who has in his possession without lawful excuse, the burden of proving which excuse shall lie on such person, any implement of house- breaking; or
     
  3. who has been proclaimed as an offender either under this Code or by order of the State Government; or
     
  4. in whose possession anything is found which may reasonably be suspected to be stolen property and who may reasonably be suspected of having committed an offence with reference to such thing; or
     
  5. who obstructs a police officer while in the execution of his duty, or who has escaped, or attempts to escape, from lawful custody; or
     
  6. who is reasonably suspected of being a deserter from any of the Armed Forces of the Union; or
     
  7. who has been concerned in, or against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists, of his having been concerned in, any act committed at any place out of India which, if committed in India, would have been punishable as an offence, and for which he is, under any law relating to extradition, or otherwise, liable to be apprehended or detained in custody in India; or
     
  8. who, being a released convict, commits a breach of any rule made under sub- section (5) of section 356; or
     
  9. for whose arrest any requisition, whether written or oral, has been received from another police officer, provided that the requisition specifies the person to be arrested and the offence or other cause for which the arrest is to be made and it appears therefrom that the person might lawfully be arrested without a warrant by the officer who issued the requisition.
Any officer in charge of a police station may, in like manner, arrest or cause to be arrested any person, belonging to one or more of the categories of persons specified in section 109 or section 110.

41A. Notice of appearance before police officer:

The police officer shall], in all cases where the arrest of a person is not required under the provisions of sub-section (1) of section 41, issue a notice directing the person 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, to appear before him or at such other place as may be specified in the notice.

(2) Where such a notice is issued to any person, it shall be the duty of that person to comply with the terms of the notice.

(3) Where such person complies and continues to comply with the notice, he shall not be arrested in respect of the offence referred to in the notice unless, for reasons to be recorded, the police officer is of the opinion that he ought to be arrested.

(4) Where such person, at any time, fails to comply with the terms of the notice or is unwilling to identify himself, the police officer may, subject to such orders as may have been passed by a competent Court in this behalf, arrest him for the offence mentioned in the notice.

Procedure when the investigation is not complete within twenty-four hours
Section 57 of the Criminal Procedure Code requires that no person shall be detained in custody without a warrant after the completion of twenty-four hours.

So, what happens after this twenty-four-hour period is over?

Under section 167 of the Code, provisions have been made when the investigation is not complete. This is done only if it is believed that there are reasonable grounds for his accusation, and the investigation is still incomplete. The investigating officer shall forward a copy of the diary entries and also the accused to the Judicial Magistrate after the twenty-hour period gets over.
The main objective behind producing the accused before the Magistrate is to validate the action of remand by him. It is to show that remand is necessary for the accused. And, also for providing an opportunity to the accused to contradict the grounds on which the police is asking for remand.

The Magistrate needs to exercise his mind judicially while giving remand to the accused.
The investigation has to be completed within a period of ninety days or sixty days, otherwise, the accused shall be released on bail under the proviso to Section 167(2) of the Code.

4. Procedure relating to witnesses

  1. Attendance of witnesses
    The police officer who is pursuing the investigation is empowered to require the attendance of the witnesses. The witnesses shall be such who are acquainted with the facts and circumstances of the case. The powers have been conferred under Section 160 of the Code.

    The provisions of Section 160 of the Code explicitly mention that no male below fifteen years or a woman shall be called to attend at any other place than the place where she resides.
    The non-compliance of summons under Section 160 of the Code is punishable under Section 174 of the Code.

    The person who is required to appear when served summons does not do so shall be liable to simple imprisonment up to one month or with a fine up to INR 500 or both. The section only requires the attendance of the witnesses and furnishing of relevant information about them. The police officer cannot insist upon the witnesses for the production of documents before him. The order which requires the attendance of a person needs to be in written form.

  2. Examination of witnesses
    The most crucial part of the investigation lies in the examination of witnesses. The statement made by them can hold a person guilty. The police officer who is investigating the case has been empowered to conduct witness examination. The witnesses are bound to answer the questions which are related to the case truly. Section 161 lays down the procedure for the examination of witnesses by the police.

    The investigating officer shall examine the persons who are acquainted with the facts of the case. It is the duty of the investigating officer to record the statements of the eyewitnesses without any delay. After examining the witnesses, it is required by the police officer to write down the statement made by the witness.There should be no delay on the part of the police officer investigating the case in examining the witnesses.

    In the event of a delay of the examination of the witness, the onus lies on the investigating officer for explaining the reasons for the delay. In a case before the Hon'ble Supreme Court, there was an unexplained delay for ten days, and there were some contradictions as well, the Supreme Court was of the opinion that evidence became suspect owing to the delay.
    Whereas, when the delay has been properly explained, it does not have any adverse impact upon the probable value of a particular witness.

    The police officer while examining the witnesses is not bound to reduce the statements made into writing.

    It is preferred that the statements should be written or the substance of the whole examination should be written down at least.

    The recorded statements are required to be noted down in the case diary maintained under Section 172 of the Code.
  3. Statements to the police not to be signed
    The statements which are made by the witnesses during the examination needs to be signed by the witness who is making such a statement. The statements so made shall not be used for any other purpose.

Statements made under Section 161 can be used for contradiction

Section 161 of the Code requires the person who is acquainted with the facts of the case to make statements to the police.

Such statements can be used for the purpose of contradiction by the Prosecution or the Accused. For example, if a witness in court says:
I saw Mahesh running with a knife covered in blood from her home, this statement can be contradicted by the statement, I did not see Mahesh running with a knife covered in blood from her home.

Recording of the statement under Section 164 Cr.P.C

Section 164 of the Code envisages the provisions for the recording of statements in the presence of a Magistrate. The confession has to be recorded in the course of the investigation. No confession shall be recorded by a police officer.

Warning to the accused or the person making a confession
Before recording the confession, it has to be explained to the person making the confession that he is not bound to make a confession. And, if he does so, it can be used as evidence against him as well. The statement made by a person should be recorded with his consent and voluntarily. It is a statutory obligation which is imposed by the Code on the Magistrate to make the accused aware of his rights.

Also, a person cannot be kept in custody if before recording the statement, he states that he does not want to do so.

Recording of the statement when the Magistrate does not have jurisdiction
The Magistrate may record a statement of the witness even if he does not have jurisdiction in the case. The Magistrate who recorded this confession shall forward the same to the Magistrate by whom the case is to be inquired.

The authority of recording confessions is exclusively vested with the Judicial Magistrate under the Code.
Furthermore, the confessions which are recorded under this Section must be in the course of an investigation.

Signature of the accused on the confession
The confession which has been made by the accused should be duly signed by him. If the confession has not been signed, it is not admissible in evidence. It is absolutely mandatory to obtain the signature of the accused.

A confession under this section should be made either in the course of the investigation or before the commencement of inquiry or trial.

What happens if the confession is made to an unauthorized person?
In Sasi v. State of Kerala, it was held by the Supreme Court that it is not necessary to make a confession before an authorized person only. The Supreme Court had said, Any person to whom a confession has been made can give evidence of it in the court regarding the confession. Also, if it is made to such a person, the court has to look after this. The court needs to see that the person before whom such a confession is being made can be believed or not.

Recovery And Search
Search to be conducted by the police officer
A police officer or the investigating officer has been empowered under section 165 of the Code to search the premises whenever he feels necessary or has reasonable grounds to believe the same. The investigating officer or the officer-in-charge conducts the search when he believes that there are sufficient or reasonable grounds to pursue the same. The search is conducted when there is an absolute necessity for the same.

Section 93(1) of the Code of Criminal Procedure provides for the grounds under which a warrant for search shall be issued. Moreover, the search has to recorded in the diary otherwise it becomes illegal.

Procedure for search
The investigating officer would go to the locality where the offence was committed and get two people called the ‘Panchas'. The evidence given by the Panchas is of paramount importance. They sign a document called the Panchnama which contains the evidence collected out of the search. It is signed by them which validates the search and the procedure adopted during the investigation.

What does Panchnama mean?

Panchnama has not been defined anywhere in the law. However, it is a document which holds great value in criminal cases. The Panchnama states things which were found at a particular place and at a particular time. Not only the Criminal Courts but also the Civil Courts use it.

After this, a memorandum of the search is prepared by the investigating officer or the officer-in-charge. It needs to be submitted to the Magistrate.

The police officer-in-charge or the investigating officer who has a valid warrant is to be allowed to conduct the search of a place. Force may be used if he is not allowed to do so. The search is not just only of the premises but also of a person. If it is a female, a female officer shall search her with utmost decency.

The search of the closed place or of a person has to be made before two respectable persons of the society. These respectable persons are known as the ‘Panchas'. They need to sign the document validating the search. However, the Panchas need not necessarily be called as witnesses.

A search of a place entered by a person who is sought to be arrested
Under Section 47 of the Code, the search of a place can be conducted by the police when they have to arrest a person. The police can break in and enter if they are not being allowed in the place. There is also an allowance for no-knock break-in to take place: this is done to take the person by surprise.

A search memo is prepared by the officer which needs to be sent to the Magistrate. The same memo is sent by the Magistrate to the owner of the occupier of the place.

A subordinate officer may be appointed in the place of the officer who is unable to conduct the search in person. The police officer needs to record his reasons for not being able to conduct the search in writing.

Moreover, proper reasons shall be recorded for conducting the search. This means that the police officer should be satisfied that there is a need for conducting a search to further the investigation. The basic objective of conducting a search is to find evidence which may help in solving the case.

The Exclusionary Rule

The exclusionary rule of evidence states that the things which are found out of an illegal search are not admissible in evidence. This is a principle of US jurisprudence found in the case of Silverthrone Lumber Co. v. USA. In India, such a rule is not applicable. One needs to show that the search was unjust in nature to find the application of this rule.

In Pooran Mal v. Dy. Of Inspections, it was however held by the court that:
Any statute can call for search and seizure to be conducted, as long as it broadly follows the principles as laid down in the CrPC. It was also said that the findings of a search and seizure cannot be held as inadmissible merely on the ground of the illegality of the search and seizure. Also, the court held that if there are some materials acquired during the search which are useless, this doesn't mean the entire evidence is inadmissible. There is no constitutional principles or fundamental rights interpretation which gives for the exclusion of evidence.

Production of documents or other things
Section 91 of the Code of Criminal Procedure states that whenever a Court or the officer-in-charge of a police station feels that a document or some other thing is necessary for the purpose of the investigation, such Court may issue summon or the officer may in writing, order the person in whose possession the document is to be produced. The document shall be produced at the date and time specified in the summons served to the person. This section does not apply to a person who is accused and on trial.

The Court cannot issue a summons for the production of a document or a thing by the accused. This is because it will become self-incrimination under Article 20(3) of the Constitution of India.
In fact, documents which are not a part of the charge-sheet can also be received in evidence for prosecution after the commencement of the trial. This was observed by the Karnataka High Court in a petition filed by an accused in the case of BL Udaykumar v. State of Karnataka.

The documents which are required to be produced under this Section shall be the ones which form the subject matter of the criminal offence.

In H.H. The Nizam of Hyderabad v. A.M Jacob, it was held by the Calcutta High Court that the document which is needed to be produced must have some relation to, or connection with, the subject-matter of the investigation or inquiry, or throw some light on the proceedings, or supply some link in the chain of evidence.

Under section 92 of the Code, if a document or other thing or a parcel is in the custody of a postal or telegraph authority, and the Magistrate whether Judicial or Executive, any of the Courts wanted that that document for the purpose of investigation, such Magistrate or the Court may order the authority to produce the document before them.

Report to be filed before the Magistrate after completion of the investigation
Section 173 of the Code requires the investigating officer to file a report before the Magistrate after the collection of evidence and examination of witnesses are done with. This section requires that each and every investigation shall be completed without any unnecessary delay.

Section 173(2) requires the:
  1. the names of the parties;
  2. the nature of the information;
  3. the names of the persons who appear to be acquainted with the circumstances of the case;
  4. whether any offence appears to have been committed and, if so, by whom;
  5. whether the accused has been arrested;
  6. whether he has been released on his bond, and if so, whether with or without sureties;
  7. whether he has been forwarded in custody under section 170 to be submitted in the closure report before the Magistrate.
The report under section 173 is called as the Completion Report. Also known as the charge sheet. Sending such a report is extremely necessary and mandatory.
In the report, the officer also needs to communicate the action which shall be taken by him.

The final report will be of two kinds:
  1. Closure Report
  2. Charge Sheet/Final Report

Closure Report
Closure report is the one in which it is stated that there is not enough evidence to prove that the offence has been committed by the accused. Once the closure report is filed before the Magistrate, he may accept and the report the case as closed, direct a further investigation into the case, issue a notice to the first informant as he is the only person who can challenge the report or he may directly reject the closure and take cognizance of the case.

The report under Section 169 of the Code can be referred to as the Closure Report.

Charge Sheet
What is a Charge Sheet?
A charge sheet is a final report prepared by the investigation or law enforcement agencies for proving the accusation of a crime in a criminal court of law. The report is basically submitted by the police officer in order to prove that the accused is connected with any offence or has committed any offence punishable under any penal statute having effect in India. The report entails and embodies all the stringent records right from the commencement of investigation procedure of lodging an FIR to till the completion of investigation and preparation of final report. Section 173 of the Code of Criminal Procedure, 1973 provides for report of the police officer. Filing of the Charge-Sheet indicates the end of investigation.

Contents of a Charge-Sheet
Section 173 (2) prescribes the details which need to be mentioned in a charge-sheet and they are as under:
  1. the names of the parties;
  2. the nature of the information;
  3. the names of the persons who appear to be acquainted with the circumstances of the case;
  4. whether any offence appears to have been committed and, if so, by whom;
  5. whether the accused has been arrested;
  6. whether he has been released on his bond and, if so, weather with or without sureties;
  7. whether he has been forwarded in custody under section 170.

Purpose of a Charge-sheet
The purpose of a charge-sheet is to notify a person of criminal charges being issued against them. After the charge-sheet is filed, the person against whom the charge-sheet has been filed comes to be known as an accused. The filing of charge-sheet with the magistrate indicates commencement of criminal proceedings.

By Whom and Before Whom can a Charge-sheet be filed?
The Officer-in-Charge of the police station which conducts the investigation files the charge-sheet before the magistrate who has jurisdiction to take cognizance of the matter.
The Magistrate cannot take cognizance of a crime before filing of a charge-sheet. In R.R. Chari v. State of U.P, it was observed that taking cognizance refers to the application of judicial mind before the court. This means that before the charge-sheet is filed, the Magistrate cannot form an opinion as to the guilt or otherwise of the accused.

Time-Period for filing charge-sheet
In cases where the offence is punishable with imprisonment of less than 10 years, the final report u/s 173 shall be filed by the investigation agency within 60 days and in cases where the offence recorded to have been committed is punishable with imprisonment for more than 10 years, life imprisonment or death penalty, the investigation agency, in such matters, have to file their report within 90 days from the date of the FIR being registered.

At What Stage Can a Charge Sheet be filed and Further Investigation
As mentioned earlier, a charge-sheet is ordinarily filed as a final report after the investigation is over. However, this was creating problems as the police often found further evidence after the filing of charge-sheet, but the courts were reluctant to accept the same once they took cognizance of the matter. Therefore, the need for amendment was felt and Section 173 (8) was introduced, which enabled the investigating agency to file further investigation.

In J. Jayalalitha v. State, the Court held as follows:
Section 173(8) of Code of Criminal Procedure empowers the prosecution to further investigate into the matter in respect of any offence, even after filing a report under Section 173(2) of Code of Criminal Procedure and to file a further report or reports regarding such evidence; and in which event the procedure provided under Section 173(2) to (6) shall apply again.
However, in Ram Lal Narang v, State, Delhi Administration it was held that the only requirement under Section 173 (8) is that the police officer inform the court and seek its permission before embarking on further investigation.

Moreover, in Bhagwant Singh v. Commissioner of Police & Anr., the court also observed that even after filing of the charge-sheet, if the court is not satisfied, the Magistrate may order for further investigation.

In fact in Kishan Lal v. Dharmendra Bafna, the court also observed that the order for further investigation may be made at various stages, including the stage of trial.
But the courts have also opined very often that the provision only permits a further investigation and must not be construed to be allowing a re-investigation.

Status of Statements/Confessions mentioned in a Charge-sheet
Section 161 of the Cr.P.C. empowers the investigating agency to record statements of the witnesses. Though it is not mandatory to record such statements, however, if any statement has been recorded, the police officer is obliged to mention the same in the charge-sheet.

However, these statements cannot be used to conclude whether a person is guilty of the offence or not.
The statements are admissible before the Court not as evidence for prosecution, but only for contradicting the statements made by the witnesses during cross-examination and to establish that it is a hostile witness. (Jayalakshmi v. State of Kerala)

Similarly, if a magistrate records statement of the accused under Section 164 Cr.P.C, there should be mention of same in the charge-sheet. (Patiram v. State of Maharashtra)

Process After Filing a Charge-Sheet
The report may conclude that an offence appears to have been committed by a particular person or persons and in such a case, the Magistrate may do one of three things:
  1. he may accept the report and take cognizance of the offence and issue process or,
  2. he may disagree with the report and drop the proceeding or,
  3. he may direct further investigation under sub- section (3) of Section 156.

Conclusion
The investigation process involved in criminal cases is extremely thorough. It involves a lot of procedures which need to be followed with due diligence. One mistake, and it can lead to the acquittal of an offender. The police leave no stones unturned while investigating the case. The investigation starts from the cognizance of the offence to the filing of the report under section 173 before the Magistrate. The guilty will get convicted after his Trial gets over and the Court finds proof that he committed the offence.

Message from the author of the article Ms.Swapana Pramod Kode


Written By Swapana Pramod Kode

Law Article in India

Ask A Lawyers

You May Like

Legal Question & Answers



Lawyers in India - Search By City

Copyright Filing
Online Copyright Registration


LawArticles

How To File For Mutual Divorce In Delhi

Titile

How To File For Mutual Divorce In Delhi Mutual Consent Divorce is the Simplest Way to Obtain a D...

Section 482 CrPc - Quashing Of FIR: Guid...

Titile

The Inherent power under Section 482 in The Code Of Criminal Procedure, 1973 (37th Chapter of t...

Increased Age For Girls Marriage

Titile

It is hoped that the Prohibition of Child Marriage (Amendment) Bill, 2021, which intends to inc...

Sexually Provocative Outfit Statement In...

Titile

Wednesday, Live Law reported that a Kerala court ruled that the Indian Penal Code Section 354, ...

UP Population Control Bill

Titile

Population control is a massive problem in our country therefore in view of this problem the Ut...

Privatisation Of Government Sector

Titile

Privatization of presidency Sector Although in today's time most of the services provided in ou...

Lawyers Registration
Lawyers Membership - Get Clients Online


File caveat In Supreme Court Instantly