Powers of Police Officer to Investigate

Powers of Police Officer to Investigate written by Prapti Doshi student of Institute of Law, Nirma University

‘Police’ is not defined under the CrPC, but the “officer in charge of a police station” [S.2(o)], police report [S.2(r)] and police station [S.2(s)] have been defined. The word ‘police’ is normally used as a noun, which has a dictionary meaning: the civil force of a state, responsible for the prevention and detection of crime and the maintenance of public order. (Oxford Dictionary)   Another Definition from New Webster Dictionary says: (it is) ‘A department of government responsible for the preservation of public order, detection of crime and enforcement of civil law.’     

Police are part of the executive system. The Indian Police Act, 1861 says: the word ‘Police’ shall include all persons who shall be enrolled under the Police Act. (S.1)         Apart from Central – Police Act, some States have their own Police Act e.g. Bombay Police Act (Maharashtra), Gujarat Police Act, Kerala Police Act etc. As the maintenance of law and order is the primary duty of each State Government, Police is governed by State Law. Police is the first machinery, which can be moved and used in case of cognizable offences, as it has power to arrest without warrant and power to investigate in such cases without any orders/s from the magistrate.

OVERVIEW:

Criminal Law is basically divided in two parts: Substantive and Procedural. For example, Indian Penal Code, 1860 and other Penal Acts are substantive laws, which define the offences and prescribed various kind of punishment including the quantum of punishment. Under these penal enactments, we also understand the essential ingredients of each offence, which is crystalized by legal provision i.e. section of the Act. On the other hand, the procedural law lays down a course for operation of such substantive law. It specifies the nature and scope of the proceedings as well as how the legal process is to be initiated and be linked with the provision of the substantive law e.g. when, where and how.          

It is a well-known feature of the Criminal Law that anyone can put motion in criminal law, so a stranger can move it too, subject to few statutory exception e.g. u/s.376-B of the IPC: Sexual intercourse by husband upon his wife during separation, but it is cognizable offence only on a condition that: if it is upon a complaint of the victim (as per the First Schedule under the CrPC). Hence, the principle of locus standi is applicable for this offence.

Thus, as per the two categories of offences, the criminal cases can also be divided into two groups:

•  Cases, wherein Police can arrest person/s without warrant and it has power to investigate without any order/s of the Magistrate;
• Cases, wherein Police cannot make any arrest without warrant and does not have power to investigate without specific order/s of the Magistrate.

Origination of Criminal Proceedings:       

• Commission of cognizable offence/s affects the society at large. As soon as it is committed, information about the same is required to be reached at the Police, whose duty is to protect law and order. Here, the meaning of information is also necessary to understand and comprehend.   
• Information regarding the crime is: ‘facts provided’ or ‘learned about something or someone’ [Oxford Dictionary]. Information could be anything: data, knowledge, an incident, a happening, an occurrence or everything – which the mind can perceive by its senses. 
• Chapter-XII of the CrPC deals with ‘Information to the Police and their Powers to Investigate’. Here the set of Sections-154 to 176 are designed for the process of investigation and intricacies of such investigation under the procedural law. 
• However, Chapter-V of the CrPC, which prescribes the legal provisions of ‘Arrest of Persons’. Here, the group of Sections: 41 to 60 deal with the conditions and requirements of ‘Arrest’, which is again not defined anywhere under the CrPC. 
• However, normally arrest would come only after the commission of an offence and so, it is not a condition precedent of an investigation of a crime by a police, if it is cognizable in nature. 
• Nonetheless, beginning of criminal proceedings is generally with the information regarding the cognizable offence and so, we start with the same by understanding the concept of FIR (First Information Report), which is also not defined anywhere in CrPC.
• Section-154 of the CrPC denotes ‘Information in cognizable cases’, but for the purpose of general understanding – ‘cognizable offence’ and ‘cognizable case’, both are synonymous. Section-2(c) of the Code spells out the cognizable offence is cognizable case, in which a police officer may arrest (person/s) without warrant. In such cases, police can also investigate the same without any orders of the Magistrate.

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

• Normally, in practice – police never entertain any information regarding the non-cognizable cases/offences. However, this section-155(1) says even in case of non-cognizable offence, police have to ‘enter such information in a book to be kept by such officer in such form as the State Government may prescribe in this behalf, and refer the information to the Magistrate.’         
• Sub-section (2) of 155 puts the bar on investigation by the police in case of non-cognizable offence, unless Magistrate so orders. It says: “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.”   
• However, sub-section (3) says: if the Magistrate orders for investigation of such non-cognizable case to the police, then, ‘police may exercise the same powers in respect of the investigation (except the power to arrest without warrant) as an officer in charge of a police station may exercise in a cognizable case.’           
• Sub-section-(4) further clarifies 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.” 

Section-156: Police officer’s power to investigate cognizable case:

• This section is simple and gives powers to police to investigate the cognizable cases ‘without the order of a Magistrate’ and sub-section-(2) further says: ‘No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate.’ 
• However, under certain Special Penal Statute/s the qualification of the Investigation Officer is prescribed and such Special Penal Act would override the General Act/Code i.e. CrPC e.g. under the SC and ST (Prevention of Atrocities) Act, 1989 and Rules thereunder of 1995: Rule-7 says: An offence committed under the Act shall be investigated by a police officer not below the rank of a Deputy Superintendent of Police.
• And lastly, sub-section (3) of 156 says: “Any Magistrate empowered under Section 190 may order such an investigation as above-mentioned.”
• The scope of the aforesaid sub-section goes like this: When, information is given to police about the cognizable offence and if police fails to register the same, then, the remedy available to an aggrieved person is as per section-154(3) of the Code (send it to superior).
• However, if that is not yielded any result, then, an aggrieved person can approach the Magistrate with a complaint (S.2[d]) and when he approaches the Magistrate with the complaint, Magistrate may exercise the power under section 190 of the Code and may order such an investigation (for such offence/s) and then, the police do not have any option but to register the FIR and start the investigation.