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Zero FIR :-Whenever a Police officer in charge lodges an FIR but believe that hw does not

have jurisdiction to investigation ,such an FIR ultimately transferred to other Police station.

When a Statement Amounts to F.1.R.? The question whether a statement is FIR. or is one

made after the receipt of F.I.R. assumes importance. It has been held that first information is that

information which is given to the police first in point of time (on the basis of which theinvestigation has been commenced) and not that which the police may select and record as first

information. When a person reported to the police officer that he had seen a certain woman with

her throat cut, and the officer had not made a record of that fact, but subsequently treated aninformation lodged by the womans father as first information in the case, held that the

unrecorded information was in fact the first information, and not that given by the womans

father.

However, any sort of information given first in point of time is not necessarily first informationwithin Sec. 154. It is necessary that such information must relate to a cognizable offence on the

face of it, and not merely in the light of subsequent events. Sec. 154 does not necessarily

contemplate that only one information of a crime should be recorded as FIR., but all informationgiven to the police before investigation is started, may amount to first information. Therefore,

information lodged at two different police stations regarding the same offence would both beadmissible in evidence. However, there is a trend of courts acceptance ofF.I.R. as statements

which give circumstances of the crime with a view that the police officer might proceed to

investigate

If any oral information relating to the commission of a cognizable offence is given to

police officer, but the same is not recorded and the police officer proceeds to the scene of

offence and there records Statements of witnesses, none of such statements would amountto FIR. Because in such a case the real FIR. is the unrecorded oral information given to the

lice officer by the informant [S. V Madar v State of Mysore (1980) 1 SCC 479].

The following points may be noted about a FI.R.

(1) It should be information of fact disclosing the commission of a cognizable offence.

(2) It should not be vague or indefinite.

State of UP vR.K Srivastava (1989) 4 SCC 59]. If the allegations made in the F.I.R. are takenat their face value and accepted in their entirety do not constitute an offence, the criminalproceedings instituted on the basis of such F.I.R. should be quashed

(3) It may be given by anybody; the injured should not always b,e the first informant.

(4) It is not necessary that the offender or the witnesses should be named.

The following do not come within the purview of a F.I.R., namely:

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(1) A statement given to the police after investigation have commenced.

(2) A statement made by a witness during investigation.

(3) A titement recorded by an officer-in-charge on the basis of his personal knowledge after the

original information was received.(4) A report by a police officer informing his superior that he had been told of the possible

commission of a dacoity at some time in the future.

(5) A complaint made orally or in writing to a Magistrate.

Provisions Relating to F.l.R.

(i) Police duty to record informationWhen any information disclosing a cognizable offencelaid before the officer-in-charge of a police station, he has no option but to register the case on

the basis thereof (State of Haryana vBhajan Lal, 1992 CrLJ 527 (SC); Satish Kumar Goel vState, 2000 CrLJ 2176 (Del)].

Further, refusal to record an F.I.R. on the ground that the place of crime does not fall within theterritorial jurisdiction of the police station, amounts to dereliction of duty. Information diout

cognizable offence would have to be recorded and forwarded to the police station having

risdiction [State of AR vPunati Ramulu AIR 1993 SC 2644.

(ii) Certain provisions of Sec. 154 are non-mandatoryThe provisions of Sec. 154regarding reading over of information after it is reduced to writing, signing of the same by the

person giving the information and entering its substance in the prescribed manner are not

mandatory. These requirements are merely procedural and the omission of the one or the othercannot affect the legal consequences which follow the information given under Sec. 154

(iii) Act of giving and recording constitute one transaction The giving of first information

and recording the same is a continuous process. The nature of that process cannot be altered by

reason of the fact that the investigation might have commenced at an intermediate point beforethe recording of the FIR. was complete, unless there is definite evidence to show that what was

stated or recorded after the investigation has commenced was ascribable to some inquiry made in

the meantime by a police officer investigating the offence

(iv) First information report and MagistrateThe endorsement by the Magistrate, on the

copy of the F.I.R. was held to besufficient and the absence of seal did not make any difference[S.Bhimappa v State of Karnataka AIR 1994 SC 848].

(v) FIR. and accusedThe FIR. is a public document and an accused is entitled to haveits certified copy. The denial of the copy willbe violative of Art. 21 of the Constitution

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Importance of F.I.R.First information report is important from many point of views. It is a

statement made soon after the occurrence, hence, the memory of the informant is fresh and it is

also unlikely that he had opportunities of fabrication. Delay in giving information is, therefore,viewed with grave suspicion. The First Information need not contain the name of witnesses8 or

other minute details. Where the first information report is also a dying declaration, it can be used

as a substantive or primary evidence as a dying declaration. Where First Information Report canbe tendered in evidence under any provision contained in the Evidence Act, such as a dyingdeclaration or as a part of informants conduct under Section 8 it can be used as a substantive

evidence.

It was held inKirender Sarkar and Others v. State of Assam, that First Information Report is not

supposed to be encyclopaedia of the entire events and cannot contain the minutest details of the

events. When essentially material factq are disclosed in the F.LR. that is sufficient. The FirstInformation Report lodged under Section 154 Cr. P. Code is not a substantive evidence and it

cannot be used for contradicting testimony of eye-witnesses except that it may be used f the

purpose of contradicting maker of report. Though naming of accuse persons in F.I.R. cannot be

ignored but failure to name one or few accused c be no reason to disbelieve testimony of crucialwitnesses.

Evidentiary value of FIR :- Although FIR recorded by the police is of considerable value at thetrial showing as it does on what materials the investigation commenced, it is not a piece of

substantive evidence, but may only be considered for the purpose of corroboration under section

157 of the Indian Evidence Act, if all the provisions thereof are complied with. It is admissible inevidence against the maker or informant. It can be used only as a previous statement admissible

to corroborate or contradict a statement made by the informant subsequently in court. It can,

therefore, be used only for the purpose of corroborating or contradicting the maker thereof. TheFIR is never treated as a substantive piece of evidence. It can only be used for corroborating or

contradicting its maker when he appears in court as a witness. Its value must depend upon thefacts and circumstances of a given case; Dharma Ram Bhagare v. State of Maharashtra, 1974

(II) SCJ 349.

Delay in lodging FIR :- Delay in giving first information can be condoned if there is satisfactoryexplanation. Whether the delay is so long as to throw a cloud of suspicion. on the deeds of the

prosecution case must depend upon a variety of factors. When there is criticism on the ground

that FIR in a case was delayed, the Court has to look at the reason why there was such a delay.

There can be a variety of genuine causes for FIR lodgment to get delayed. Where the delay infiling F.l.R. is due to its being lodged at a wrong police station, it was held to be reasonably

explained. Where the accused himself gives the first information the fact of his giving the

information is admissible against him as evidence of his conduct under Section 8 of the EvidenceAct. If the information is non-confessional, it is admissible against the accused as an admissionunder Section 21 of the Evidence Act and is relevant. But a confessional first information report

by the accused to a police officer cannot be used against him in view of Section 25 of the

Evidence Act. Rural people might be ignorant of the need for informing the police of a crime

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without any lapse of time. This kind of unconversantness is not too uncommon among urban

people also. They might not immediately think of going to the police station.

It was held in Utpal Das and Another v. State of West Bengal, that first information report does

not constitute substantive evidence. However, it can only be used as a previous statement for

purposes of either corroborating its matter or for contradiction. And in such a case previousstatement cannot be used unless attention of witness has first been drawn to those parts by which

it is proposed to contradict the witness.

It was held in State of Himachal Pradesh v. Gianchand, that the delay in lodging F.I.R. cannotbe used as a ritualistic formula for doubting the prosecution case and discarding the same solely

on that ground. If the delay is explained to the satisfaction of the court it cannot by itself be aground for disbelieving and discarding the entire prosecution case.

Ravinder Kumar v. State of Punjab, (2001) 7 SCC 690. :- In any case, where there is delay inmaking the FIR, the Court has to look at the cause of it and if such causes are not attributable to

any effort to concoct a version no consequence shall be attached to the mere delay in lodging theFIR;

Amar Singh v. Baiwinder Singh, (2003) 2 SCC 518: 1 (2003) SLT 733. :- There is no hard and

fast rule that any delay in lodging the FIR would automatically render the prosecution casedoubtful. It necessarily depends upon facts and circumstances of each case whether there hasbeen any such delay in lodging the FIR which may cast doubt about the veracity of the

prosecution case and for this a host of circumstances like the condition of the first informant, the

nature of injuries sustained, the number of victims, the efforts made to provide medical aid tothem, the distance of the hospital and the police station, etc. have to be taken into consideration.

There is no mathematical formula by which an inference may be drawn either way merely on

account of delay in lodging of the FIR;

State of Himachal Pradesh v. Gian Chand, (2001) 6 SCC 71: III (2001) SLT 740. :- Delay in

lodging the FIR cannot be used as a ritualistic formula for doubting the prosecution case anddiscarding the same solely on the ground of delay in lodging the first information report. Delay

has the effect of putting the Court on its guard to search if any plausible explanation has been

offered for the delay, and if offered, whether it is satisfactory or not. If the prosecution fails tosatisfactorily explain the delay and there is a possibility of embellishment in the prosecution

version on account of such delay, the delay would be fatal to the prosecution. However, if the

delay is explained to the satisfaction of the Court, the delay cannot be itself be a ground for

disbelieving and discarding the entire prosecution case;

Sahebrao v. State of Maharashtra, 11(2006) CCR 158 (SC). The settled principle of law of this

Court is that delay in filing FIR by itself cannot be a ground to doubt the prosecution case anddiscard it. The delay in lodging the FIR would put the Court on its guard to search if any

plausible explanation has been offered and if offered whether it is satisfactory;

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Every information relating to the commission of a cognizable Offence shall be reduced to

writing [Sub-s. (1).A careful and accurate record of thefirst information has always been

considered as a matter of the highest importance by the courts in India, the object of the firstinformation being to show what was the manner in which the occurrence was related when the

case was first stated.

The Supreme Court has held that first information report is not substantive evidence. It cannot be

preferred to the evidence given by the witness in court. However it can be used to corroborate

or impeach the testimony of the person holding it under s. 145, 157 and 158 of the Evidence Act.It can also be used under section 32 and s. 8(J) and (k) of the Evidence Act. An FIR can be used

to discredit the testimony of the maker of the report, but even if he gives entirely different

version the prosecution case cannot be thrown out.The Informationgiven under this section is

generally referred to as FIR. The requirements of this section in regard to reading over of theinformation after it is reduced to writing, the signing of the same by the person giving the

information and the entering of the substance of that information in the prescribed manner, are

not mandatory these requirements are merely procedural and the omission of the one or the other

cannot affect the legal consequences which follow the information given under the section.

The Word information means something in the nature of a complaint or accusation or at leastinformation of a crime, given with the object of putting the police in motion in order to

investigate, as distinguished from information obtained by the police when actively investigating

a crime.

Right to copy of report and to submit substance to Superitendent of Police. :- The informantis, as of right, entitled to receive a copy of the information as recorded free of cost. If the

information is not recorded by the poiice-officer the informant can approach the Superintdant ofpolice by sending him the substance of the information by post. Such officer can investigate the

case himself or direct an investigation by his subordinate officer.

Public Document._ The First Information Report is a public document and an accused is

entitled to have its certified copy. The denial of a copy will be against the principles of natural

justice and violative of Article 21 of the Constitution.

General Diary: In every Police Station, Out post, investigation Centre, Station houses etc, ageneral diary book is to be maintained duplicate. And every activity of the police right from theofficer-in-charge to the entry is to be noted down serially by putting number and d and time

against each to avoid manipulation.

If commission of non-cognizable crime is reported to the police Then police will enter it intogeneral diary book and proceed with the enquiry. A court of law can call for the general diary at

any time f verification of certain facts.

Case Diary :The diary referred to in Section 172Cr. P.C. is known as Special diary or Case

diary. As provided in Sec. 172 of Cr. P. C. any officer prescribed by the government will

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copy thereof given a copy duly signed by the officerin charge.

4. Entry in the general diary or its copy is to be sent

to the higher police officer.

4.FIR must be sebt to a Magistrate

within 24 hours.

155. Information as to non-cognizable cases and investigation of such cases.:-

Bare Act

(a) in formation to the police as to non-cognizable offence.If any person givesinformation to an officer in charge of a police station of the commission of a non-cognizable offence, the officer shall enter or cause to be entered the substance of the

information in a book prescribed for this purpose. The officer shall then refer the

informant to the magistrate [S. 155(1)]. The police officer has no further duty unless he is

ordered by a magistrate to investigate the case.

(b) Powers of the police to investigate a non-cognizable case depend on Magistratesorder.Theprimary rule is that no police officer shall investigate a non-cognizable case

without the order of a magistrate having power to try such case or commit the case for

trial [S. 155(2)]. The Code does not expressly give power to a magistrate to orderinvestigation into a non-cognizable case. Such a power, however, can be implied from the

wording of S. 155(2). The Code does not give any direction or guidance to the

magistrates as to how and in what circumstances the power to order investigation is to be

exercised. Certainly the power is not to be exercised arbitrarily or capriciously. Probablythe magistrate is to consider the totality of the circumstances and consider whether it

would not be just and proper to ask the police to investigate the non-cognizable case. If amagistrate, who is not empowered, erroneously orders in good faith an investigationunder S. 155(2), the proceedings shall not be set aside merely on the ground of his not

being so empowered [see S. 460(b)].

(c) A case consisting of both cognizable and non-cognizable offences:In a situation wherea criminal case consists of both cognizable and non-cognizable offences, a question may

arise as to whether the case is to be treated as a cognizable case or a non-cognizable case.To meet such a situation S. 155(4) provides that where a case relates to two or more

offences of which at least one is cognizable, the case shall be deemed to be a cognizable

case, notwithstanding that the other offences are non-cognizable. A case alleging

commission of offences under Sections 494 and 498-A IPC could be investigated by thepolice, though offence under S. 494 is a non-cognizable offence, by virtue of S. 155(4).

(d) Powers to investigate a non-cognizable case:Where a magistrate under S. 155(2) gives anorder to a police officer to investigate a non-cognizable case, the police officer receiving

such order may exercise the same powers in respect of the investigation (except the power to

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(i) Section 155(2) of the new code prohibits investigation by a police officer into a non-

cognizable offence without the order of a magistrate. A violation of the provision would

stamp the investigation with illegality;

(ii) This defect in the investigation can be obviated and prejudice to the accused avoided

by the magistrate ordering investigation under S. 202 of the Code;

(iii) The report of a police officer following an investigation contrary to S. 155 (Cr) couldbe treated as a complaint under S. 2(d) and S. 190(1) (a) of the code if at thecommencement of the investigation the police officer is led to believe that the case

involved commission of a cognizable offence or if there is doubt about it and

investigation establishes only commission of a non-cognizable offence;

(iv) If at the commencement of the investigation it is apparent that the case involved only

commission of a non-cognizable offence, the report followed by investigation cannot betreated as a complaint under S. 2 (h) or S. 190(a) of the Code.

2. This rule is not applicable where while investigation a cognizable offence anothercognizable offence is also made out. S. 155(4) Cr.P.C. says that where a case relates to

two or more offences of which at least one is cognizable, the case shall be deemed to be a

cognizable case, not withstanding that the other offences are non-cognizable. During theinvestigation of cognizable offence, a Police officer can look into a non-cognizableoffence and investigation would not be rendered illegal in spite of express prohibition

contained in S. 155 Cr.P.C.

3. Similarly while investigating a cognizable case, if a non-cognizable offence is made out,the police can send a complaint for the commission of non-cognizable offence and the

court can take cognizable on it irrespective of the fact that no sanction for investigationu/s 155 (2) Cr.P.C. was taken for investigation of this non cognizable offence.

4. A Police Officer, however, cannot investigate into another and separate noncognizableoffence in case he is not authorised by a magistrate while investigating a particular non-

cognizable offence under particular orders.

5. If while investigation a non-cognizable case, in fact a cognizable offence is made out, thePolice Officer is duty bound to bring the offence at once on the Crime Register i.e.

Register No. l (F.1.R) and to Report to the magistrate that he is dealing with the offence

u/s 157 Cr. P.C. and to act accordingly.

156. Police officers power to investigate cognizable cases.;- (Bare Act)

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COMMENT.In the case of a cognizable offence the police may hold an investigation

irrespective of any order of the Court. Courts have no control in suchcases over the

investigation, or over the action of the police in holding such investigation.

Investigation of cognizable offence [Sub-section (1).This subsection enables the police to

investigate cognizable offence committed beyond their local jurisdiction.

Duty of police on receipt of FIR._The registration of an FIR empowers the officer in charge ofthe police station to commence investigation with respect to the crime reported to him. A copy ofthe FIR is required to be sent forthwith to the magistrate empowered to take cognizance of such

offence. After recording the FIR officer in charge of the police station is obliged to proceed in

person or depute one of his subordinate officers not below such rank as the State Govt.may, bygeneral or special order, prescribe to proceed to the spot to investigate the facts and

circumstances of the case and if necessary, to take measures for discovery and arrest of the

offender.

Order of investigation [Sub-section (3).This sub-section empowers Magistrate to order apolice inquiry in a case where the Magistratedoes not himself issue process at once. The word

Magistrate mentioned in section 156 (3) means Judicial Magistrate who is competent to takecognizance of a offence and not Executive Magistrate. This sub-section empowers a Magistrate

to order the investigation of an offence of which he may have taken cognizance under s. 190. He

may do so even before the examination of the complainant. Thus the Magistrate is not bound totake cognizance of the offence or receiving a complaint and he may, without taking cognizance

direct investigation of the case by the police under sub-section (3) of this section. A Magistrate

can also under s. 159 direct an investigation or preliminary inquiry into a case which may have

been reported by the police as not worth investigating. The power to order police investigationunder s. 156(3) is different from the power to direct investigation conferred by s. 202(1). The

first is exerciseable at the pre-cognizance stage, the second is at the post-cognizance stage whenMagistrate is seized of the case. The power under s. 156(3) can be invoked by the Magistrateonly before he takes cognizance of the offence under s. 190. The magistrate can without taking

cognizance of a private complaint which may be exclusively triable by a Court of Sessions, refer

it for investigation under section 156 (3).

The powers of police under the Cr. P.C. to investigate a cognizable offence are wide andunfettered, but the condition precedent for taking up investigation is that the police must havereason to suspect commission of a cognizable offence . whether on information or otherwise and

that can only be when FIR and other material is disclose a cognizable offence.

A magistratehas no power under s. 156(3) to direct the CBI to conduct investigate any offence.

The primary responsibility for conducting investigation into offences in cognizable cases vests in

the in-charge police officer. Section 156 (3) of the Code empowers a Magistrate to direct suchofficer in-charge of the police station to investigate any a cognizable case over which such

Magistrate has jurisdiction . Though a Magistrate under s. 156(3) can only direct an officer in

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charge of a police station to conduct such investigation and not a superior police officer

nevertheless, when such an order is passed any police officer, superior in rank of such officer,

can as well exercise the power to conduct an investigation, and all such investigations wouldthen be deemed to be the investigation conducted by the officer in charge of a police station.

A Magistrate has no power to order investigation under this section after the issue of process tothe accused. When investigation of a cognizable offence has been started by the police, the

Magistrate has no power to stop it and order for magisterial inquiry. In case of mala fide exercise

of power of investigation by police the remedy is to invoke writ jurisdiction. Where theMagistrate orders investigation by the police before taking cognizance under Section 156(3) of

the Code and receives the final report from the police he has power to issue notice to the

complainant, record his statement and the statement of other witnesses, and issue process under

Section 204 of the Code. The legal propositions that emerge in this regard are

1. A Magistrate can order investigation under Section 156(3) only at the pre-cognizancestage i.e.,before taking cognizance under Sections 190, 200, and 204 and where a

Magistrate decides to take cognizance under the provisions of Chapter XIV he is notentitled by law to order any investigation under Section 156(3), though in cases not

falling within the proviso to Section 202, he can order an investigation by the policewhich would be in the nature of an inquiry as contemplated by Section 202 of the Code.

2. Where the Magistrate chooses to take cognizance he can adapt any of the followingalternatives

a) He can peruse the complaint and if satisfied that there are sufficient grounds forproceeding he can straightaway issue process to the accused but before he does so he

must comply with the requirements of Section 200 and record the evidence of the

complainant or his witnesses.

b) The Magistrate can postpone the issue of process and direct an inquiry by himself.c) The Magistrate can postpone the issue of process and direct an inquiry by any other

person or an investigation by the police.

(3)In case the Magistrate after considering the statement of the complainant and thewitnesses or as a result of the investigation and the inquiry ordered, is not satisfied, thatthere are sufficient grounds for proceeding, he can dismiss the complaint.

(4) Where a Magistrate orders investigation by the police before taking cognizance underSection 156(3) of the Code and receives the report thereupon, he can act on the report anddischarge the accused or straightaway issue the process against the accused or apply his

mind to complaint filed before him and take action under Section 190 of the Code.

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Madhubala v. Suresh Kumar 1997 cr. L.J. 3757 SC that once a complaint disclosing a

cognizable offence is made before a Magistrate, he may take cognizance upon the same

under Section 190(1)(a) or order an investigation by the police under Section 156(3) Cr. P.Code. Whenever a Magistrate directs an investigation on a complaint the police has to

register a cognizable case treating the same as F.I.R. Once such a direction is given under

sub-section (3) of Section 156 the police is required to investigate into that complaint underSection 156(1) and on completion of investigation to submit a police report in accordancewith Section 173(2) on which a Magistrate may take cognizance under Section 190(1)(b) and

not under Section 190(1)(a).

InRamesh Bhai Pandurao Hedau v. State of Gujarat,(2010) 2 Cri. L.J 2441 (S.C.). it was held

that the power to direct an investigation is available to the Magistrate both under section 156(3)

and Section 202, Cr. P.C. The power under section 156(3) is exercised at pre-cognizance stagewhile the power to direct a similar investigation under section 202 is exercised at the post-

cognizance stage. In the present case the Magistrate has chosen to adopt the latter course and has

treated the protest petition filed by the appellant as a complaint under section 200 of the Code

and has therefore proceeded under section. 202 Cr.P.code and kept the matter with himself for aninquiry in the facts of the case. There is nothing irregular in the manner in which the Magistrate

has proceeded and if at the stage of sub-section (2) of Sec. 202, Magistrate deems it fit, he mayeither dismiss the complaint under section 203 or proceed in terms of section 193 and commit thecase to Court of Session.

InRasikial Dalpatram Thakkar v. State of Gujarat,(2010) Cr. L.J. 884 (S.C.). it has been heldthat where an investigation is undertaken at the instance of the Magistrate a Police Officer

empowered under sub-section (1) of section 156 is bound, except in specific and specially

exceptional cases, to conduct such an investigation. The Investigating agency cannot refrain fromconducting investigation on the ground that it had no territorial jurisdiction to investigate offence

as the offence had been committed beyond its territory.

It was held inMohd. Yousuf v.Afaq Jahan,2006 Cr. L.J. 788 (S.C.). that investigation

envisaged in Section 156 is different from investigation under Section 202. Section 156 falls

within Chapter XII which deals with powers of Police Officers to investigate cognizableoffences. Investigation under Section 202 is contained in Chapter XV. Investigation under

Chapter XII can be commenced even without order of Magistrate but that does not mean that

when a Magistrate orders investigation under Section 156(3) it would be a different kind of

investigation. Such investigation ends with submission of report under Section 173. Investigationunder Section 156 is before a Magistrate takes cognizance and the one under Section 202 is after

taking cognizance and is therefore of a limited nature. It is for helping the Magistrate to decide

whether or not there is sufficient ground for him to proceed further.

In criminal trial one of the cardinal principles for the Court is to look for plausible explanationfor the delay in lodging the report. Delay defeats the chance of the unsoiled and untarnished

version of the case to be presented before the Court at the earliest instance. That is why if there isdelay in either coming before the police or before the Court, the Courts always view the

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allegations with suspicion and look for satisfactory explanation. If no such satisfaction is formed,

the delay is treated as fatal to the prosecution case. It was further explained that Section 156

deals with powers of police officers to investigate cognizable offences. Section 202 which fallsin Chapter XV dealing with the stage after cognizance, also refers to the power of a magistrate

to direct an investigation by a police officer. But the investigation envisaged in Section 202

is different from the investigation contemplated in Section 156. The investigation contemplatedby Section 202 is of a limited nature for helping the Magistrate to decide whether he shouldproceed further.

The clear position, therefore, is that any judicial Magistrate, before taking cognizance of the

offence, can order investigation under Section 156(3) of Cr.P. Code. If he does so, he is not to

examine complainant on oath because he was not taking cognizance of any offence therein. For

the purpose of enabling the police to start investigation it is open to the Magistrate to direct thepolice to register an F.I.R. There is nothing illegal in doing so. After all, registration of an

F.I.R. involves only the process of entering the substance of the information relating to the

commission of the cognizable offence in a book kept by the officer-in-charge of the police

station indicated in Section 154 of Cr.P.C. Even if a Magistrate does not say in so many wordswhile directing investigation under Section 156(3) that an F.I.R. should be registered, it is the

duty of the police officer-in-charge of the police station to register the F.I.R. regarding thecognizable offence disclosed by the complainant because that police officer could take furthersteps contemplated in Chapter XII of the Cr.P.C only thereafter.

Power of Writ Courts to monitor progress of investigation. InKunga Nima Lepcha v.

State of Sikkim,(2011) 2 Cr. L.J. 2911 (S.C.). it was pointed out that it is true that in the past, the

Supreme Court as well as various High Courts have indeed granted remedies relating toinvestigations in criminal cases. That is in the past writ jurisdiction has been used to monitor the

progress of ongoing investigations or to transfer ongoing investigations from one Investigatingagency to another. Such directions have been given when a specific violation of fundamental

rights is shown, which could be the consequence of apathy or partiality on part of investigatingagencies among other reasons. In some cases judicial intervention by way of writ jurisdiction is

warranted on account of obstructions to the investigation process such as material threats to

witnesses, the destruction of evidence or undue pressure from powerful interests. In all thesecircumstances the writ courts can only play a corrective role to ensure that integrity of the

investigation is not compromised. However it is not viable for a writ court to order the initiation

of an investigation. That function clearly lies in the domain of the executive and it is upto theinvestigating agencies themselves to decide whether the material produced before them provides

a sufficient basis to launch an investigation. There are provisions in the Code of Criminal

Procedure which empower the courts of first instance to exercise a certain degree of control overongoing investigations. The scope for intervention by the Trial Court is hence controlled bystatutory provisions and it is not advisable for writ courts to interfere with criminal investigations

in absence of specific standards for the same.

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157. Procedure for investigations.:- (Bare Act)

Section 157 provides the manner in which investigation is to be conducted where the

commission of cognizable offence is suspected and authorises an officer-in-charge of a police

station not to investigate if he considers that there is no sufficient ground for such investigation.Thus it regulates the procedure for investigation. It requires that prompt intimation of every

complaint or information made to an officer-in-charge of a police station of the commission of a

cognizable offence shall be given to the Magistrate having jurisdiction. The extraordinary delayin sending the F.I.R. is a circumstance which provides a legitimate basis for suspecting that the

first information report was recorded much later than the stated date and about affording

sufficient time to the prosecution to introduce improvements and embellishments and set up a

distorted version of the occurrence. The suspicion hardens into a definite possibility when thecase made in court differs at least in two very important particulars from that narrated in the

F.I.R. In such a case the evidence of the eye-witnesses cannot be accepted at its face value.

The importance of prompt dispatch of a copy of the FIR to a magistrate empowered to takecognizance of such an offence can be hardly over-emphasised. The time at which the report is

received by the magistrate concerned goes a long way in coming to the proper conclusion as totime at which the FIR may have been written, lodged or registered. Failure to send a report to the

magistrate as required by this provision is a breach of duty and may go to show that the

investigation in the case was not just, fair and forthright and that the prosecution case must be

looked at with great suspicion. No doubt, the non-compliance of Ss. 154 and 157 does notconstitute a ground to throw away a prosecution case but it does emerge as a factor to be

seriously reckoned with while appreciating the entire evidence. Its non-observance is bound to

cast some shadow on the case, obviously to its detriment, because of the adverse inference.However, where the FIR, was actually recorded without delay and the investigation started on

the basis of that FIR and there is no other infirmity, then howsoever improper or objectionablethe delayed receipt of the report by the magistrate concerned be, it cannot by itself justify the

conclusion that the investigation was tainted and the prosecution unsupportable.

There are, however, two circumstances in which it is not necessary. for the police officer incharge of a police station to proceed to the spot and to investigate the case. These circumstances

are as follows

(a)Where the case is not of a serious nature and the information as to the commission of theoffence has been given against any person by name [Proviso (a) to S. 157(1)1. The police

officer in such a case is required to state in his report to the magistrate his reasons for not

proceeding to the spot for investigation [S. 157(2)]. The Code has not given any guidanceto the police officer as to the circumstances in which the case might be considered as not

serious. However, if the police officer wrongly considers a case as not serious or

otherwise, the superior police officer through whom the report is sent to the magistrate,

can always give appropriate directions to the officer in charge of a police station to setright the course of his action.

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(b) If it appears to the officer in charge of a police station that there is no sufficient groundfor entering on an investigation he shall not investigate the case [Proviso (b) to S.

157(1)1. Here again the police officer is required by the Code to state in his report hisreasons for not proceeding to investigate. The police officer is further required to notify

immediately to the informant, if any, in the manner prescribed by the State Government,

the fact that he will not investigate the case or cause it to be investigated [S. 157(2)1.This would enable the informant to approach a magistrate or a superior police officer forredress, if he feels aggrieved by the view taken by the police officer in charge of a police

station. As the report to the magistrate is to pass through the hands of a superior police

officer, he can issue appropriate instructions to the officer in charge of the police stationregarding the investigations into the case.

The magistrate receiving the above-said report of a police officer under S. 157, may direct aninvestigation, or if he thinks fit, may at once proceed to depute any magistrate subordinate to him

to proceed to hold a preliminary enquiry into, or otherwise to dispose of the case in the manner

provided in the Code (S. 159). This provision does not confer a magistrate a general power to

direct investigation. The power to direct investigation is to be used when it appears from thepolice report under S. 157 that the police are neglecting their duties or are desisting from

investigation on insufficient grounds. The power of the police to investigate any cognizableoffence is uncontrolled by the magistrate, and it is only in cases where the police decide not toinvestigate the case that the magistrate can intervene and either direct investigation, or in the

alternative, himself proceed or depute a magistrate subordinate to him to proceed to enquire into

the case.

Report :- Forthwith.- The report is to be sent forthwith to the Magistrate. This is designed to

keep the Magistrate informed of the investigation so as to be able to control the investigation andif necessary to give appropriate direction U/S 159. But the mere fact of the delayed receipt of the

report by the Magistrate, if there be no prejudice caused to the accused, cannot by itself lead tothe conclusion that the investigation is tented . Section 157 of the Criminal Procedure code

requires a Police Officer to undertake investigation if on information received or otherwise, theofficer has reason to suspect the commission of an offence. The power to investigate conferred

under section 157 of the Cr.P.C does not necessarily flow from judgment of First Information

report prescribed under section 154 of the Criminal Procedure Code and the police officer isentitled to undertake investigation from information received.

Report made by police-officer in compliance with this section are not public documents within

the meaning of s.74 of the Indian Evidence Act and consequently the accused is not entitled,

before trial, to have copies of such reports.

In State of UP. v. Gokaran, the steps in investigation by way of drawing inquest report and other

Panchanamas started soon after receipt of information but the special report to be sent to the

Magistrate was delayed. It was held that every delay in sending report to the Magistrate underSection 157 would n necessarily lead to the inference that the F.I.R. has not been lodged at the

time stated or has been ante timed or ante dated or that the investigation is not fair and forthright.

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Though ordinarily investigation is undertaken by a police officer on information the receipt of

information is not a condition precedent for investigation. It can be initiated either on

information or otherwise.

In State of Jammu and Kashmir v.Mohan Sin gh,2006 Cr.L.J 169 SC F.I.R. was recorded in the

evening but a copy of the same was not sent to the Magistrate at his residence during night.However, it was sent at the earliest on next day in Court. It was held that it cannot be said that

there was delay much less inordinate delay in sending a copy of report to the Magistrate.

Therefore, the prosecution case cannot be thrown out on the ground of delay in sending a copy ofreport to the Magistrate.

The words first information received refer to the information furnished and recorded under

Section 154. Though ordinarily investigation is undertaken on information received by a police

officer, the receipt of information is not a condition precedent for investigation. The words or

otherwise are wide enough to include every source of information other than that furnished

and recorded under Section 154. Investigation may, however, be commenced even when policeare led to believe through their own knowledge or by means of credible though informal

intelligence that a cognizable offence has been committed.

In Shashikant v. Central Bureau of Investigation,2007 Cr. L.J. 995 (S.C.). an anonymouscomplaint alleging corrupt practice by a member of special police force was received.

Authorities on the basis of said complaint initiated preliminary enquiry against him. The

Supreme Court held that such course is permissible. Although ordinarily in terms of Section 154

of the Code, when a report is received relating to the cognizable offence, a First InformationReport should be lodged, to carry out a preliminary inquiry even under the Code is not unknown.

When an anonymous complaint is received, no investigating officer would initiate investigativeprocess immediately thereupon. It may for good reasons carry out preliminary enquiry to find outthe truth or otherwise of the allegations contained therein. Only when a F.I.R. is lodged, the

officer-in-charge of the police station is statutorily liable to report about it to a Magistrate who is

empowered to take cognizance in terms of proviso to Section 157(1) of the Code. Proviso (b)appended thereto empowers the Investigating Officer not to investigate where it appears to him

that there is no sufficient ground to entering into an investigation. The question therefore, as to

whether an empowered officer who had made investigation or caused the same to be made in a

cognizable offence within the meaning of Section 157 of the Code or had not initiated aninvestigation on the basis of an information which would not come within the meaning of

Section 154 of the Code is essentially required to be determined in the fact situation in each case.

In State v. Jayapaul,2004 Cr. L.J. 1819 (S.C.). the police officer received certain discreetinformation about the commission of certain crime, which, according to his assessment,

warranted a probe and therefore, made up his mind to investigate. The formality of preparing the

F.I.R. in which he records the factum of having received the information about the suspectedcommission of the offence and then taking up the investigation after registering the crime, does

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3. Such person shall attend.Aperson who fails to comply with the orderof the policemay be prosecuted for disobedience under s. 174 of the I.P.C.

Payment of expenses to witness [Sub-section (2)1.Reasonable expenses ofwitnesses to

attend at places other than their residence may be paid.

161. Examination of witnesses by police.:- Bare Act

A police officer making investigation can examine the witnesses acquainted with the facts of thecase and reduce. them to writing if he so wishes. Section 161 does not authorise beating or

confining a person with a view to induce him to make a statement. State of Andhra Pradesh v.Venugopal, AIR. 1964 S.C. 33.

The object of S. 161 is to obtain evidence which may later be produced at the trial. In case oftrial before a court of session or in case of trial of a Warrant-case, a charge may be framed

against the accused on the basis of the statement recorded by the police officer under S 161.

Before trial copies of scuh statements are to be furnished to the accused, free of cost.Thisrequirement is also applicable to the accused in a case instituted otherwise than on police report.

Recording a statement is not obligatory. The police should not extract information by usingforce. A statement made under this section during investigation of the cross case is absolutely

inadmissible.

The Supreme Court observed in a subsequent case on the subject; there could be no rule ofuniversal application that if there is any delay in the examination of a particular witness the

prosecution version becomes suspect. If the explanation offered for such delay is plausible and

acceptable and the court accept the same as plausible, there is no reason to interfere with the

conclusion. Further the investigating officer has to be specifically asked as to the reasons for thedelayed examination where the accused raised a plea that there was unusual delay in the

examination of the witnesses.

Mere delay in examination of the witnesses for a few days cannot in all cases be termed to be

fatal so far as the prosecution is concerned. There may several reasons. When the delay isexplained, whatever be the length of the delay ,the court can act on the testimony of the witness

if it is found to be cogent and credible.

May examine orally any person supposed to be acquainted with the facts of the case.No oathor affirmation is required in an examinaion under this section. It is not obligatory to reduce to

writing the statement of the person examined.

Any person.The words any person are quite general and would include accused person also.

Such person must be one acquainted with the facts and circumstances of the case. The purpose ofexamination is to obtain evidence preliminary to arrest. If the police have sufficient evidence to

arrest a person they should not proceed under this section.

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Bound to answer truly.The word truly has been added in the new Code and did not appear

in the old one. The law now expressly requires a person to answer the question truly. He can

refuse to answer. He can refuse to answer incriminating questions. A person who gives a falseanswer to a question under this section may be prosecuted under Section 182 of Indian Penal

Code.

Sub-section (3).This sub-section makes it clear that a police officer is not bound to record

any statements of witnesses examined, though he may do so if he likes. Statements should be

recorded as far as possible in the very words of the person examined. The section prohibits therecording of statements in a boiled form. Recording of statements in a boiled form will not make

the evidence inadmissible at the trial, though it may become relevant for considering their

credibility. Where the statement of witnesses is recorded, the police is obliged to make copies of

those statements available to the accused before the commencement of the proceedings.

The discretion given to the Investigating officer under this subsection in the matter of recordingstatement of witnesses should not be exercised in such a manner as to handicap the accused in

their defence or to deprive the Court of valueable material for ascertaining the truth. While thefailure to comply with the requirements of section 161(3) might affect the weight to be attached

to the evidence of the witnesses, it would not render it inadmissible.

Relevant fact not mentioned in s. 161 statement:- where a relevant fact was not mentioned in the

statement of the witness under s. 161 but was deposed before the court in his testimony, the courtsaid that this would not be a ground for rejecting his evidence if it is otherwise creditworthy and

acceptable. An omission on the part of a police officer cannot take away the nature and character

of the evidence.

Evidentiary value of statement.Statements recorded by the investigating officer under Section

161 cannot be used as substantive evidence before court. When statement of a witness has notbeen recorded under Section 161 at the time of investigation but he is examined in the court thenhis evidence can be acted upon only when no prejudice is caused to the accused.

Delay in examination of witnesses.In State of UP. v. Satish, there was delay in examination of

witnesses by investigating officer and investigating officer was not questioned on the aspect ofdelay. It was held that delay in examining witnesses by investigating officer does not ipso factomake prosecution version suspect. Investigating officer should have been categorically

questioned on the aspect of delayed examination. Since this has not been done disbelieving

version of witnesses was improper.

InNandini satpathy 1978 SCC (Cri) 236 case the Supreme Court has extensively consider the

prameters of S. 161(2) of the CrPC and the scope and ambit of Art. 20(3) of the Constitution.According to the Supreme Court, the accused person cannot be forced to answer questions

merely because the answers thereto are not implicative when viewed in isolation and confined to

that particular case. He is entitled to keep his mouth shut if the answer sought has a reasonable

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also amount to statements. It does not include the record of a search made by the police or

signatures taken on blank paper for the purpose of comparison. Tehsildar Singh AIR 1959 SC

1012

Santa Singh v State of Punjab AIR 1956 sc 526] A statement made to a third person in the

presence of a police officer is not within this section. Every statement made to a person assistingthe police during the course of investigation cannot be treated as a statement to the police. Thus,

if after arranging the identification parade the police leave the field and allow the identification

to be made under the sole direction of thepancha witnesses, the statements of the identifyingwitnesses made to thepancha witnesses would be outside the purview of Sec.

Ram vjS. Chauhan AIR 1975 sc 667 A statement of a witness recorded by the police during theinquest under Sec. 174 of the code will be within the inhibition of Sec.

Statement made to a police officer.This section applies only to a statement made to a policeofficer in the course of investigation. A statement made to a third person in the presence of a

police officer is not within this section. It includes a confession made to a police officer in thecourse of an investigation, and any other statement of the accused person. This section does not

bar a statement made in a letter written to the police officer.

Sec. 162(1) Proviso.InBhagwan Das v. State of (N.C.T.) of Delhi (2011) 3 Cr. L.J. 2903(S.C.)., the mother of accused gave statement to police that her son had told her that he had killeddeceased. But when she was confronted with this statement before the court she resiled from her

earlier statement and therefore was declared hostile. It was held that her subsequent denial in

court is not believable because she had afterthoughts and wanted to save her son (the accused)from punishment. Her Statement to police can be taken into consideration in view of proviso to

section 162(1) Criminal Procedure Code. It is duty of the court to separate grain from chaff.

Further maxim (falsus .n uno falsus in omnibus false in one particular, false in all) has noapplication in India.

In the course of an investigation.Sec. 162 only puts restrictions on the use of statementsmade to an investigating officer during the course of investigation. It does not say that every

statement made during the period of investigation comes within the ambit of its prohibition. The

FIR. is not a statement within the meaning of this section because it is a statement made beforethe investigation begins .It is only a statement made in the course of an investigation that is

prohibited from being used as evidence. The statement made by witnesses to a police officer in

the course of investigation can be used for the purpose of contradicting the witness in the manner

provided by Section 145 of the Evidence Act but it cannot be used as substantive evidence. The

first information report about the commission of a crime is not a statement within the meaning ofthis section because it is a statement made before the investigation begins and is, therefore,

admissible in evidence, The words in the course of in the context of this section import that the

statement must be made as a step in a pending investigation to be used in that investigation anddo not refer to the period of time between beginning and end of investigation.

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Statement reduced into writing.A police officer to whom a statement is made by any

person in the course of investigation is not bound to reduce such statement into writing. But if he

writes it down, he must write the statement of such witnesses separately. The person making thestatement cannot be required to sign it.

State ofRajasthan v Teja Ram (1999) 3 SCC 507 :- Sec. 162(1) lays down that no statementmade by any person to a police officer in the course of an investigation, shall, if reduced to

writing be signed by the person making it. However, if an investigating officer has by mistake

obtained the signature of the accused on seizure memo in violation of Sec. 162(1), it shall notvitiate the whole proceedings

State of UP vMK Anthony AIR 1985 SC 48 If the officer obtains the signature of a witness onhis recorded statement, the evidence of the witness is not thereby rendered inadmissible. It

merely puts the court on caution and may necessitate an in-depth scrutiny of such evidence

Use of Statements Made to the Police in Evidence [Sec. 162) :- The statements given to the

police during investigation cannot be used as substantive evidence; they can only be used forraising suspicion against credibility of the witness. Sec. 162 can be used for a three-fold purpose,

namely:(i) It may be used by the defence for contradicting the prosecution witness.

(ii) It may be used by theprosecution for contradicting the prosecution witness with thepermission of the court. This might be desirable if a prosecution witness is won over by the other

side.

(iii) The witness whose previous statement is so used may be re-examinedby way of an

explanation, if necessary.

However, the restrictions on the use of previous statements of witnesses are unnecessary in any

otherproceeding. The ban imposed by Sec. 162 appears sweeping and wide; but its language isnot explicit or specific enough to extend the prohibition to the use of wide and special powers of

the court to question a witness, expressly and explicitly given by Sec. 165 of the Evidence Act in

order to secure the ends of justice [Raghunandan v State of UP AIR 1974 SC 463].

In general, a statement made to the police (by way of F.I.R. or recorded during policeinvestigation) cannotbe considered as substantive evidence i.e. as evidence of facts stated

therein. Because it is not made during trial, it is not given on oath, nor is it tested by cross-examination. If the person making any such statement to the police subsequently appears and

gives evidence in court at the time of trial, his former statement could, however, be used tocorroborate or to contradict his testimony (if the statement is by way of FIR. or it is not made

during police investigation), or to contradict his testimony, if it is a statement made during policeinvestigation. It may be noted that the evidentiary value of the F.I.R is far greater than that of any

other statement recorded by the police during investigation.

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Sec. 162(1) lays down that no such statement or any record of such a statement, whether in a

police diary or otherwise, or any part of such statement or record, be used for any purpose other

than those stated in the section at any inquiry or trial in respect of any offence underinvestigation at the time when such statement was made. Theproviso to Sec. 162(1) provides

that such statement, if duly proved, may be used by the accused or by the prosecution (with the

permission of the court) to contradict such witness (maker of the statement), when called for theprosecution in an inquiry or trial, in the manner provided by Sec. 145 of the Evidence Act; andwhen it is so used, any part thereof may also be used in the re-examination of such witness, but

for the purpose only of explaining any matter referred to in his cross-examination.

The right guaranteed to an accused under Sec. 162 is total and absolute. Sec. 162 strikes an

equitable via media. On the one hand, it enacts an absolute bar against statements made before a

police officer being used for any purpose whatsoever (viz, inadmissible in evidence), and on theother hand, it enables the accused to rely on it for the limited purpose of contradicting a witness,

by drawing his attention to parts of the statement intended for contradiction. Such a statement

cannotbe used for corroboration of a prosecution/ defence witness. Thus, there is a general bar

against its use being made, subject to a limited exception in the interests of the accused. Thisbeing so, it is clear that the exception cannot override the general rule itself.

Statements Can Only be Used for Contradiction: Explanation to Sec. 162 :- Sec. 162implicitly prohibits the use of the statements for the purpose of coroboration or seeking

assurance for prosecution story. That is based on the assumption that the police cannot be trusted

for recording the statements correctly and that the statements cannot be relied on by theprosecution for the corroboration of their statements as the statements recorded might be of self

serving nature.

The statement can be used for the purpose of contradiction. Contradiction means the setting up

of one statement against another and not the setting up of a statement against nothing at all . If awitness in a court says, I saw A tunning away, he may be contradicted by his statement to thepolice I did not see A running away. But theExplanation to Sec. 162 makes it clear that a

significant omission (to state a fact or circumstance in the statement) may in the particular

context amount to contradiction.

Tehsildar Singh AIR 1959 SC 1012 Statement can be used for the purpose of contradicting aprosecution witness. The statement is not to be used for the purpose of cross-examining awitness because it enables the accused to elicit what the witness stated before the police

.statement cannotbe used for contradicting a court witness or defence witness.

Laxman Kalu v State of Maharashtra AIR 1968 SC 1390 When a person whose statement hasbeen recorded under Sec. l61, is not examined as a prosecution witness but as a witness in

defence, the proviso to Sec. 162(1) does not come into play at all, and the prosecution cannot be

allowed to confront such a defence witness with his previous statement recorded duringinvestigation under Sec. 161

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Baladin v State of UP AIR 1956 SC 181 Significance of material contradictions may not be the

same in every case. Ordinarily, the contradictions between the statements are valuable material

in favour of the accused for the purposes of challenging the reliability of the witness. However,where the police records are tainted to favour the accused, the court would not attach same

significance to the contradiction and omissions contained in such tainted record. In such a case,

the court should carefully weigh the evidence given by the witness in court on its own meritsonly.

A statement (or part) which is not reduced into writing by a police officer cannotbe usedfor contradiction. However,Explanation to Sec. 162provides that an omission to state a fact or

circumstance in the recorded statement may amount to contradiction, if it appears to be

significant and otherwise relevant having regard to the Context in which such omission occurs;

whether it does or not will be a question of fact

Every omission does not amount to contradiction unless that omission vitally touches the veryfactum which is required to be proved by the prosecution

Tehsildar Singh v State of UP [AIR 1959 SC 1012], held that only those omissions in the police

statement of a prosecution witness can be used for the purpose of contradiction as can be deemedby necessary implication to be included in the express recorded statement. No other omission can

be permitted to be used as a contradiction. The court rejected the other view viz, view that

omissions must be in regard to the important features of the incident in the statement madebefore the police. It said that this view introduces an uncertain element, namely, ascertainment of

what a particular witness would have stated in the circumstances of a partiular case and what the

police officer should have recorded. Such a construction is notpermisib1e as what was not stated

could go in on the sly in name of contradiction.

The apex court opined that though a particular statement is not expressly recorded, a statementthat can be deemed to be a part of that expressly recorded can be used for contradiction, notbecause it is an omission strictly so called but because it is deemed to form part of the recorded

statement. As to the meaning of contradiction, it has been stated thus the statement befote the

police officer and the statement in evidence before the court are so inconsistent andirreconcilable with each other that both of them cannot co-exist, it may be said that one

contradicts the other.

The apex court gave three illustrations to explain when an omission amounts to contradiction:

(a)When a recital is necessarily implied from the recital/recitals found in the statementInthe recorded statement before the police, the witness states that he saw A stabbing B at aparticular point of time, but in the witness box he says that he saw A and C stabbing B at

the same point of time; in the statement before the police the word only can be impliedi.e. the witness saw only A stabbing B. Thus, the omission of the word only in this case

amounts to contradiction,

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(b)A negative aspect of a positive recital in a statementIn the recorded statement beforethe police the witness says a dark man stabbed .B, but in winess box he says a fair man

stabbed B; the earlier statement must be deemed to contain the recital not only that theculprit was a dark complexioned man but also that he was not of fair complexion. Thus,

the omission in the earlier statement would amount to contradiction.

(c)When the statement before thepolice and that before the court cant stand togetherThe witness says before the police that A after stabbing B ran away by a northern lane,

but before the court he says that he ran towards the southern lane, as he could not haverun away towards the northern lane as well as southern lane, if one statement is true, the

other must be necessarily false. Thus, this also amounts to a contradiction.

Proviso to sub-section (1).Proviso to sub-section (1) enacts that a statement falling under thissection can be used for a limited purpose under the circumstances specified therein. Beforeproviso may apply the following three conditions must be fulfilled

(i) statement must have been reduced to writing;

(ii) the witness must have been called for the prosecution; and(iii) the written statement must be duly proved.

If these conditions are not fulfilled, a statement made to the police in the course of investigationcannot be proved even though the person who made the statement is dead, unless the statement

comes within Section 32(1) of the Evidence Act. Where a witness is called by the defence his

previous statement cannot be used either by the prosecution or by the defence for the purpose of

contradicting or corroborating him under the provisions of the Evidence Act.

If duly proved.There is no presumption of genuineness of the statement reduced to writing.They cannot be admitted in evidence straightway but they must be duly proved. They can be

duly proved by eliciting admission from witnesses during cross-examination, or through the

investigating officor when he is in the witness-box or by calling someone who was present when

the record was made.5 Statement cannot be proved by oral evidence of the police officer, hisanswers must be checked up with his diary.

Omission.Only those omissions in the police statement of a prosecution witness can be used

for the purpose of contradiction as can be deemed by necessary implication to be included in the

express recorded statement. No other omission can be permitted to be used as a contradiction,

however important it might be.

In Gopal v. Subhash, the question was whether omission to state a fact amounts to contradiction.In this case some prosecution witnesses stated before police that all the accused persons exhortedto commit offence, whereas other prosecution witnesses did not make any such allegation as

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regards alleged exhortation on the part of all the accused. It was held that omissiqn to state a fact

on their part amounts to contradiction and common object of unlawful assembly cannot be

inferred.

163. No inducement to be offered.:- (1) No police officer or other person in authority shall

offer or make, or cause to be offered or made, any such inducement, threat or promise as is

mentioned in section 24 of the Indian Evidence Act, 1872 (1 of 1 872).

(2) But no police officer or other person shall prevent, by any caution or otherwise, any person

from making in the course of any investigation under this Chapter any statement which he may

be disposed to make of his own free will:

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

164.

164. Recording of confessions and statements.:-

Statement u/s 164 Cr. P.C (Confession)

A Police Officer should be careful to see that the witnesses who have come forward with certainstatements on which he has built the case will remain intact at the time making depositions in

Court. In India, there are so many factors working in favour of the accused. They will try to win

over the witnesses by all the means at their disposal and will like the witnesses to change theirstories subsequently to save the accused . The witnesses too, have no such scruples as to stick to

truth. Civic sense and religious scruples have net so much developed that the witness will always

stick what he honestly believed once to be true, He can be easily molded to what ever version

one likes under the allurement of money or other material advantages temporary gain. Therefore,there is nothing wrong if a Police Officer takes advantage S. 164 Cr.P.C. and gets the statements

of witnesses recorded under that section.

Object of Section 164: The object of recording of statements U/s 164 of the Cr. P.C. is of two-

folds, namely confession of an accused is to be recorded U/s 164 of the Cr. P.C. after giving due

caution to him. It also prescribes the law for recording statements of an informant witness of acriminal case. It is to be borne in mind that the recording of statement of confessions U/s 164 of

the Cr. P.C. is a procedure of investigation. In course of investigation of a case, a police officer

investigating the same statement of an accused as the case may be U/s 164 of the Cr. P.C. are

may apply for recording of statement of witnesses or confessional used for contradiction or

corroboration of the statements of witnesses on oath before the court during trial.

Scope.This section is not exhaustive and does not limit the generality of s. 21 of the EvidenceAct as to the relevancy of admission. The effect of this section, when read with ss. 24, 25, 26 and

29 of the Evidence is that

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The acid test which distinguishes a confession from an admission is that where conviction can be

based on the statement alone, it is a confession and where some suppmentary evidence is needed

to authorise a conviction, then it is an admision. Notwithstanding the use of the word may, allconfessions should be recorded. Recording means writing down the confession and not merely

filling a written confession written by the accused while in the police custody and admitted by

him to be correct when read over to him by the Magistrate. A confession made to a Magistrateand not recorded by him cannot be proved at the trial of the person making the confession bytendering the oral evidence of the Magistrate.

Procedure of Recording Statement under Sec- 164 :- The mode of recording a confession is

not the same as in case of recording a statement . The mode of recording confession is much

more elaborate so as to ensure that free and voluntary confessions alone are recorded under the

section. The provisions of Sec. 164 is a safety valve meant to muzzle involuntary confession.The object of S. 164 read with the Judges Rules i.e.the Executive instructions of the High

Court, is to find whether the statement sought to be made by an accused is perfectly voluntary or

not. Therefore the act of recording confession under S. 164 is a solemn act, and in discharging

his duties under the section, the magistrate must take care to see that the requirements of lawunder Sec. 164 must be fully satisfied. An analysis of the section will bring out the following

points

(1)A confession or a statement can be recorded only by a metropolitan magistrate or ajudicial magistrate. The proviso to sub-sec. (1) makes it clear that a police officer on

whom the powers of a magistrate have been conferred by any law, will not be consideredcompetent to record confession under S. 164. If any executive magistrate or any other

magistrate not empowered under sub-sec. (1) records a confession, the record of the

confession cannot be put in evidence, and further no oral evidence of the magistrate toprove the confession in such a case shall be admissible.

(2) Confessions or statements can be recorded under S. 164 either in the course of aninvestigation, or at any time afterwards before the commencement of inquiry or trial.

Even if the confession is recorded after the commencement of enquiry or trial, it can still

be used in evidence; but sec. 164 would not relate to such a confession and the samewould be recorded by the trial court or the court making the inquiry.

(3) Before recording any such confession, the magistrate is required to explain to the personmaking the confession that

(i) he is not bound to make such a confession, and

(ii) if he does so it may be used as evidence against him.

These provisions contained in S. 164(2), if administered in the proper spirit, are mostsalutary. They should not degenerate into idle formalities. The warnings set forth in S.

164 are merely illustrative and not exhaustive. It is also very necessary that the magistrate

should disclose his identity to such person so as to assure him that he is no longer in thehands of the police. It has been held that if after the warning, the recording of confession

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is postponed to another day or if the recording continues on another day, a fresh warning

is necessary before a confession or part of a confession is recorded on the other day.

(4) Sub-section (2) of S. 164 further enjoins the magistrate not to record any such confessionunless, upon questioning the person making it, he has reason to believe that it was made

voluntarily. Failure to convey the caution invalidates the confession and renders itinadmissible in evidence [Kehar Singh AIR 1989 SC 683]. The record must show the

warning given to the accused. It would not be enough to state after due warning. Where

warning has actually been given but has not been recorded, the Magistrate may beexamined on the point .

Shivappa v State of Karnataka, 1995 SCC (Cri.) 3231. :-The Magistrate must

satisfy himself that no pressure or force used on the accused.

Chandran v State, 1978 CrLJ 1693 (Sc):-The expression reason to believe

imports a very high degree of expectation wrought by reason, a satisction fast-rooted in

terra firma, free from doubt as to the truth of the fact perceived and believed.

Shankaria v State of Rajasthan, 1978 CrLJ 1251 SC A confession recorded under

Sec. 164 becomes voluntary when it is made by the accused out of repentance after duecaution with reasonable time for reflection in order to remove completely any threat or

torture, inducement or promise by the arresting agency and when it precludes the

possibility of tutoring.For the exercise of jurisdiction to record confession under S. 164, it is a sine qua non that

the magistrate must have reason to believe that the confession is being voluntarily

madeThe following directions are normally followed by magistrates in order to ensure

that a confession is made voluntarily

(a)After giving warnings to the person making a confession under sub-sec. (2), themagistrate should give him adequate time to think and reflect. Normally such person, if

coming from police custody, is sent to jail custody at least for a day before his confessionis recorded. It may ho be ut there is no statutory provision in S. 164 or elsewhere, or even

nn executive direction issued by the High Court that there should be an interval of 24hours or more between the preliminary questioning of the accused and the recording of

his confession. How much time for reflection should be allowed to an accused person

before recording his confession, is a question which depends on the circumstances ineach case.

(b) Every enquiry must be made from the accused as to the custody from which he wasproduced and as to the custody to which he was to be consigned and the treatment he had

been receiving in such custody in order to ensure that there is no scope for any sort of

extraneous influence proceeding from a source interested in the prosecution still lurkingin the accuseds mind. If marks of injuries are found on the person of the accused, heshould be asked how he received them.

(c)The accused should be assured, in plain terms, of protection from any sort ofapprehended torture or pressure from such extraneous agents as the police or the like in

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case he declines to make a statement. As a further safeguard to ensure that the confession

is voluntary, sub-sec. (3) prohibits a remand to police custody of the accused if he

expresses his unwillingness to make the confession when produced before the magistrate;this does not of course mean or imply that remand has to be made if the accused wants to

confess. It has been held that after confession the accused, as a matter of rule, should be

sent to judicial lock-up and on no account be returned to police custody.

(d)The accused should particularly be asked the reason why he is going to make a statementwhich would surely go against his self-interest in course of trial and he should further betold in order to remove any lurking suspicion in his mind that even if he contrives

subsequently to retract the confession, it will be evidence against him still. The

magistrates failure to ask why the accused wanted to confess was however held to be anoncompliance of form curable under S. 463.

(e)The magistrate recording the confession must appreciate his function as one of a judicialofficer and he must apply his judicial mind to the task of ascertaining that the statementthe accused is going to make is of his own accord and not on account of any influence on

him. The magistrate must put questions to the accused in order to ascertain the

volentariness of the confession, and the record of the confession must show that questionswere so asked to ascertain voluntariness. It would be necessary in every case to

put the questions prescribed by the High Court Circular, but the question should not be

allowed to become a matter of mere mechanical enquiry and no element of casualnessshould be allowed to creep in.

(f) A confession must be perfectly voluntary otherwise the court should reject it. The termvoluntary means one who does anything of his own free will A magistrate recording

confession must make inquisitorial enquiry and make adequate exercise to ascertain the

impelling reason of the prisoner to confess his guilt.

(g)To adjudge voluntariness, the magistrate should take note of two basic factors.First the existing mental condition of the prisoner. Secondly, the magistrate must satisfythe court by documentary oral evidence that he had fully exercised his judicial mind to

get the real motive or the impelling factor which prompted the prisoner to make the

confession.

(h)There is no requirement that the magistrate should make a separate statement of reasonsfor believing that the confession was made voluntarily. It was sufficient that his statement

was recorded in the memorandum. It was further held that it was illegal for the trial court

to compare the confessional statement with the record of Accuseds statement in the

police case diary.Lokeman shah versus state of west Bengal AIR 2001 SC 1760Voluntariness is the

essence of the confession This is the material substance behind any connfession. The rest

part of the requirements under s. 164 relates to the form. Where the Magistrate failed to

ask any question to the accused whether he was under any inducement from police it

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indicated that the Migistrate failed in searching voluntariness before recording the

confession and thus the very essence of the confession was not made out.

(5)Sub-section (4) requires that a confession shall be recorded in the manner provided in S.281 for the recording of the examination of an accused person. Accordingly, the whole of

the confession, including every question put to the accused and every answer given byhim shall be recorded in full. The record shall, if practicable, be in the language in which

the accused gave the confession or if that is not practicable, in the language of the Court.

The record shall be shown or read to the accused, or if he does not understand thelanguage in which it is written, shall be interpreted to him in a language which he

understands, and he shall be at liberty to explain or add to his answers. The confession so

recorded shall be signed by the accused person making the confession. There is no

provision in S. 281 for administering oath to an accused. Therefore no oath can beadministered to the accused who is making a confessional statement before a magistrate;

and if oath in fact is administered it will be contrary to the provisions of S. 281 and as

such the confessional statement would lose its evidentiary value.

(6) Section 164 does not mention the place and time of the recording of a confession.However it has been held that the magistrate should record the confession in open courtand during court hours.

(7) The magistrate recording a confession or statement under S. 164 is required to send therecord directly to the magistrate by whom the case is to be inquired into or tried. Such

record is admissible in evidence even though the magistrate making the record is not

called as a witness to formally prove it at the trial of accused person. Because, according

to S. 80 of the Evidence Act, the Court is required to presumethat the record isgenuine, that any statement as to the circumstances under which it was made are true and

that such confession or statement of the accused was duly recorded.

(8) Questions may arise to the legal consequences of non-compliance with the provision of sec164.. The magistrate recording the confession. may not belong to the class of magistratesmentioned in S. 164(1); the person making the confession might not have been cautioned as

required by S. 164(2); or the magistrate might have failed to record the confession or the

statement in accordance with S. 164(4) i.e. not in the manner provided by S. 281; or the

magistrate might have failed to make a memorandum as required by S. 164(4). Section 463 isdesigned to cure to some extent the defects and irregularities in the recording of the

confession or other statement of the accused under 5. 164.

(9)Section 164 is applicable to confessions and statements recorded by magistrates during thecourse of an investigation or at any time afterwards before the commencement of the inquiryor trial. If the confession is recorded by a magistrate when no investigation had begun, themandatory procedure laid down in S. 164 is not applicable in such a situation. In a case

where the accused after committing murder went to a magistrate and made a confessional

statement and the magistrate recorded the statement and the accused signed it, it was held

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that though the procedure laid down in S. 164 was not followed, yet as no investigation of

crime registered against the accused was in progress, the confession was admissible in

evidence. There is nothing in the language of S. 164 to enable us to go to the extent ofconverting a mode of performance of duty of certain magistrates during a certain period into

a disability of all those who may hold magisterial office to give evidence of confessional

statements even other than those covered by S. 164. However, where the accused is inducedto make a statement or confession to a person other than a magistrate or the police merely asa colourable pretence for the purpose of avoiding the letter of the law, such a statement or

confession must be held to have been made in the course of an investigation within the

meaning of Ss. 162 and 164, and it must be rejected, as in its spirit it is in violation of theprovisions of those sections.

Thus, the whole confession, including every question put to the accused and every answer givenby him shall be recorded infull. The record shall, if practicable, be in the language in which the

accused gave the confession or if that is not practicable, in the language of the court. The recordshall be shown! read/ interpreted to him, and he shall be at liberty to explain or add to his

answers.

If the confession is properly recorded and is otherwise free from any infirmity it cannot be

discarded merely on the ground that it was recorded not in the open court but in the chamber.Confession should be recorded in open court and during court hours (though Sec. 164 does not

mention the place and time of recording of confession) unless there are exceptional reasons to

the contrary.

Ammini v State of Kerala, 1998 CrLJ 481 (SC) Where the confession is recorded by a

Metropolitan Magistrate, then in view of Sec. 164(4) read with Sec. 281(1), it shall be enough ifhe makes a memorandum of the substance of the confession in the language of the court andsigns the same. In practice, the M.M. prefers to follow the elaborate procedure of questions and

answers for the recording of confessions under Sec. 164. In the absence of any requirement that

separate reasons were required to be recorded for believing that the confession was madevoluntarily, it was not proper for the trial court to doubt its genuineness on the ground that

reasons were not recorded separately though the satisfaction was recorded in the memorandum.

Dhananjaya Reddy v State of Karnataka, 2001 CrLJ 1712 (SC)]. However, a mere failure to get

the signature of the person making the confession may notbe very material if the making of such

statement is not disputed by the accused, but in cases where the making of the statement itsel