Reporting of crime and investigation by Police
by Pinaki Addy
Advocate of Supreme Court of India
Criminal law is a fascinating subject. Since it involves with day to day problem which one encounters in real life therefore, everybody feels the need to know and understand the nature of its use and it applicability. Reporting of a crime to the police and investigation by police has always been a controversial issue. As a citizen of the country, everybody must know how to report the crime to the police, what is the statutory and legal mandate on the police to report crime and the duty entrusted upon every citizen under law as it helps us better equipped to face the situation in real life. I am writing this article to make it clear and simplify especially for the young readers who are new to the subject and have no formal education on criminal law and how it works.
There is a general perception of the public that- “Nobody is a born criminal but the circumstances makes people attracted to crime”. This is perfectly true in the context as how society perceive the growth of criminal activities and the role of our political leaders to perpetuate and indirectly aiding and abetting the growth of crime. It is generally found that the breeding ground of crimes and criminal activities are the shanties or slum areas or places where the lower strata of society live and their circumstances may have forced them to crime as means of sustenance because of general deprivation from the basic human needs and necessities of life. Our political system also to some extent to blame for they allow the lumpen elements to get the protection of political cover and aid in the proliferation of crime for their own advantage. Various films have depicted this hard realities of life. But the same is now proved to be wrong as more and more cases are being reported where young people belonging high class or so-called elite class takes to crime and many more ‘white-collar crimes’ being reported which is committed by the so-called elitist class of the society.
Gradual deterioration of the law and order system is really attributable to the lack of fear for police and the policing system as the young in their teens and twenty in their bid to portray their macho image or in a bid to bully their friends takes to crime at a very young age as most of these kids feel confident to get away with crime with the political influence of their parents and their money power. There are several cases on point where young teenager was apprehended for murder, rape and similar activities. One of them is that of 11th standard school boy of 16 years studying in Ryan International School, Gurugram, a well-known school who is accused for murdering 7 years boy of the same school and could not get bail even from the Supreme Court as he is languishing in jail for last 4 years. Thus, it could be seen that crime is not limited to any particular age group or class belonging to society but pervades through every age and every class.
As the psychologist says that one of the factors that gives to rise of the increase in crime graph amongst the young generation is that lack of proper parental control as also lack of police control over potential area which are prone to crime and criminal activities. However, there is a general perception of the public that crime reporting is a hazardous thing as it invariably involves unnecessary and avoidable harassment and humiliation and therefore to avoid any police case people generally tends to hush up things and avoid it to come to public glaze.
Many crimes can be controlled if there is social policing and a general change in this perception that police becomes friendlier towards the informant and deal with them with a human touch. A fear of strict policing system as is prevalent in Singapore also goes a long way to curb crime. Therefore there is an urgent need to develop this fear and develop a positive frame of mind not to tolerate crime.
Before we come to duty of the police in crime detection and investigation, first of all we need to understand what is a crime?
Every act or omission which is prohibited under law and as such made punishable thereunder is an offence. Depending on the nature of the punishment prescribed for an offence, it can be cognizable and non- cognizable. In legal parlance the meaning of the word “Cognizance” is to make one aware of or to become aware. Under the provisions of Criminal Procedure Code, “cognizable” offence are those where the punishment prescribed are serious in nature like death penalty, life imprisonment or any punishment with imprisonment which may extend up to 7 years as specified under First Schedule of the Code and in which case police can arrest without any warrant. As an illustrative examples following are the nature of cognizable offences where the police can arrest without warrant – rape, murder, dacoity, robbery etc and the other kind of offence is non-cognizable which is minor offences where the punishment prescribed are less than 2 years like – assault, battery, mischief, etc. The nature of offence which involves bodily injury or hurt are defined under Indian Penal Code and white collar crimes are defined under special statutes like- Prevention of Money Laundering Act, Prevention of Corruption Act, Information Technology Act etc. In case of cognizable offence, police can arrest without any warrant on the basis of suspicion but in case of non-cognizable cases, the police needs to have a warrant in order to arrest.
Police are entrusted or rather empowered under our criminal justice system to protect the society from the crime. They are required to follow the manner of crime detection and investigation under Criminal Procedure Code, 1973.
In order to understand how the police starts investigation, it is very important to know and understand how an offence is reported to the police. Once a crime is committed there should be somebody to report the crime to the police who is called the informant. The informant can be a person who has either witnessed the crime or has the knowledge or information about the occurrence of the act which is an offence. There are various ways a crime can be reported. There are certain nature of offence under IPC where it is bounden duty of the citizen under section 39 of the CrPC to report about that offence to the police like section 302, 303, 304 (offence effecting life), section 382 (theft with preparation to cause death, hurt or restraint), sections 392 to 399 (robbery and dacoity), section 409 (criminal breach of trust by public servant) etc.. One of the easiest and simplest way to report a crime is to dial 100 on phone to the police control room and record the fact in sequential manner as to the occurrence of the crime. The informant may give a vivid description of the thing which he perceives as an act of crime. The call is registered in the system and time, phone number of the caller and date of reporting over phone are all recorded in the system and can be used for future reference as piece of evidence.
The informant may also visit personally to the police station and report the crime by verbally by telling the facts of the occurrence in sequential order to the police officer who may get it reduced into writing or he may a submit a written complaint. Generally the statement made before the police whether comprises of any cognizable offence or not is left to subjective assessment or understanding of the police. There arises a lot of confusion as to whether police will accept the version of the informant as true and record its statement and register an FIRST INFORMATION REPORT (FIR) under section 154 of the CrPC which is mandatorily required to be done as the starting point of investigation.
In practical scenario it seldom does happen because police refused to register the FIR without proper investigation. That gives rise to genuine problem to the victim who has to make several visits to the police seeking information on the fate of his complaint and each time the police refused or rather neglects to register FIR on the plea that preliminary inquiry is on. Incidentally this is great drawback in the crime reporting because the police don’t want to register an FIR without any preliminary inquiry or investigation. Police generally avoid to register the FIR and seldom finds to mediate between the accused and the victim by recording a settlement which reduce the load of the police for further investigation.
In the practical reality it could seen that many victims of crime have serious grudge against police for not registering a case. This creates a lot of problem for the people as they are not sure as to whether the FIR is lodged and investigation will start.
The role of the police was questioned in not registering FIR and it becomes an accepted practice that without any political influence or pressure from higher authority the police will never register a FIR and start investigation of a case where the offence is not grave enough.
This question was considered by the Constitution Bench of the Supreme Court (comprising of 5 Judges) in the case of Lalita Kumari vs. Govt. of UP AIR 2014 SC 187 taking note of the malpractice in the reporting and registering of FIR recorded in clear terms that the police does not have a discretion in the matter of registration of FIR if a cognizable offence is reported to the police. The Supreme Court clearly passed a strict and specific direction upon the police to register an FIR if an information of cognizable case is reported by the Informant and cannot delay in its registration on the garb of preliminary enquiry. The Court has clarified that the police is not required to hold any preliminary inquiry prior to the registration of FiR in order to ascertain the genuineness, veracity or nature and purpose of the complaint but only give a specific direction that in case of offence like – matrimonial offences, commercial offences like fraud/ misappropriation of funds/ breach of trust etc, medical negligence case, corruption cases or cases where there is an abnormal delay in reporting to police then within 7 days the police has to make a preliminary enquiry to ascertain the fact as to whether a cognizable offence took place or not and in case the police found that no cognizable offence has occurred then he has to closure report to the informant immediately.
This judgement is a very important development and acts as a welcome respite for the victim of crime who could not lodge FIR based on a cognizable offence nor could do anything if the police does not register FIR for any reason whatsoever.
Another option which the victim has while facing problems in reporting FIR or in case of non- registration of FIR is to approach the local jurisdictional magistrate by filing an application under section 156 (3) of CrPC seeking for a direction upon the police to register an FIR. This can be done only upon exhausting his statutory remedy by approaching Superintendent of Police under section 154 (3) of CrPC does not yield him any response. Here also the Supreme Court has come to aid of the victim by explaining the law on the subject in Sakiri Vasu vs. State of U.P. & Ors. 2008 (2) SCC 409 where the Court has clearly demarcated the role of the Magistrate under section 156 (3) of CrPC to not only give necessary direction to register FIR but also to monitor the police investigation if it finds that there is some laxity on the part of police in doing proper investigation in the matter. The said ratio was also followed in the judgment of the Supreme Court in Sudhir Bhaskarrao Tambe vs. Hemant Yashwant Dhage & Ors. 2016 (6) SCC 277 where the Court deprecated the practice of approaching High Court for non-registration of the FIR by police instead local jurisdictional Magistrate under section 156 (3) of CrPC. It says that the law was well settled by the judgment in Sakiri Vasu (supra) where the Magistrate was empowered to grant all possible reliefs to aggrieved person for not only non- registration of FIR but also necessary directions for faulty investigations by police as also to monitor the entire investigation process.
Once the FIR is registered, the police is required to send the preliminary report to the jurisdictional magistrate of the fact of registering of FIR under section 159 of CrPC and have to start the investigation under section 157 of the CrPC.
The person who is investigating the case is called an Investigating Officer who is the Officer in the rank of Sub-Inspector. The investigation is the prerogative of the police and neither victim nor the accused has any role to play in the matter of investigation. But there is a question which always arises whether the police is doing it fairly or act under the influence of some other person. Investigating Officer are not selected by the victim but the Station House Officer or Officer-in-Charge of Police Station who has the duty to allocate the work of investigation to Sub-Inspector or Inspector depending on the gravity of the offence. More the heinous nature of crime the work of Investigation is given to superior level officer.
Once an Investigating Officer who is entrusted the work and his name is indicated in the FIR under column 13 (ii) of FIR then he goes to the scene of the crime and collect material evidence, records the statement of the witnesses, collect MLC or postmortem reports, forensic evidence, CCTV footage, etc. He has also duty to arrest the accused, if required and produce him before the MM within 24 hours and seek for his remand from the MM for further investigation in order to collect the material evidence and allow him to make disclosure statement and recover the weapon used in offence, if any.
Here comes the crucial role of the police where the police is required to arrest the accused. The power of arrest was given to the police on the basis of suspicion which gives rise to lot of cases where the police arrest persons unnecessarily of course under political influence or extraneous considerations. The Supreme Court in the case of Arnesh Kumar vs, State of Bihar AIR 2014 SC 2756 has the occasion to deal with illegal arrest being conducted by police in cases involving matrimonial offence under section 498 A read with section 4 of Dowry Prohibition Act, 1961. Here the Court notices by citing the statistical data as to how the police misused its power of arrest in matrimonial offences. The Court condemns the practice of the police to arrest under section 41 (1) of the CrPC and minced no words to say that the said power was misused with impunity. Here in this case, the Court records that many a times caution has been expressed by the Courts but the police has never learnt the lesson and used it as a weapon of harassment and oppression. It also noticed that the power of arrest is a one of the lucrative source of corruption in police. Thus being concerned about the misuse of the unbridled power of arrest as enshrined in Section 41 (1) of the CrPC framed guidelines for the police while arresting a person. It interalia says that all state governments shall instruct the police not to automatically arrest when a case under section 498 A of IPC is registered but to satisfy the necessity of arrest under parameters of section 41 (1) (b) (ii) which invariably includes – (i) to prevent such person from commit further offence; (ii) for proper investigation of offence; (iii) to prevent such person from causing evidence of offence to disappear or tampering with such evidence in any manner; or (iv) to prevent such person from making any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing those facts to the court or police officer; or (v) unless arrested his presence in the court cannot be ensured. The Court directed the police to prepare a checklist based on the aforementioned grounds and emphasized in the necessity to record satisfaction of the police on these grounds before arresting any person. It has also directed the Magistrate while authorizing detention of any person shall mandatorily required to see that the procedure of arrest as indicated in the judgment is followed. The Court also mentions that in case of failure to comply with the guideline by police, then they would be liable to face departmental action as well as for contempt of court for violation of these directions before the concerned High Court. These directions were particularly made applicable to offences where the punishment is by imprisonment for a term up to seven years.
Finally once the investigation is over, the Police prepares and submit a challan to the Court under section 173 (2) of CrPC. After filing Challan/ chargesheet it is the duty of the prosecution now to start the trial.
Investigating Officer (IO) is duty bound to find the truth and do an independent investigation unbiased by what the victim says. It is not the duty of the IO not to bolster the case of the victim but his main objective is to find the truth and bring the culprit to justice.
Once in course of the investigation, the police on the basis of suspicion may arrest the accused but he is mandatorily required to produce before the Court (i.e. jurisdictional Magistrate) who while examining the legality and validity either authorized the detention by remanding the accused to police custody or send to Judicial custody.
Now, IO is required to complete and conclude the investigation within 60 days or 90 days depending on the nature of offence. If the offence is less than 2 years then investigation should be completed within 60 days or else in case of heinous offence like – rape, murder etc. it is 90 days. Police is required to complete investigation and file charge-sheet within the prescribed time or in the event of non-filing of charge-sheet, the accused is entitled to get a default bail under section 167 (2) of CrPC.
Charge-sheet can be filed against one accused and if there are more than one accused and police may take time to file further charge-sheet or supplementary charge-sheet in due course of time.
Thus, it is seen from the above narration that it is the duty of the police to do proper investigation and collect all material evidence and file charge-sheet.