Questions & Answers By Justice V. Ramkumar- Investigation By Police-PART X

Ans. Yes. That is the requirement of Section 161 (2) Cr.P.C.

Q.47 Is the answer to the question put to the person by the Investigating Police Officer has a tendency to expose the person to a criminal charge, can such person refuse to answer the question ?

Ans. Yes. Section 161 (2) Cr.P.C. enables such a person, whether he is a witness or an accused, to refuse to answer such a question.

Q.48 Can the accused refuse to answer all questions put to him by the Investigation Police Officer on the ground that he has got a right to silence ?

Ans. No. His right to silence is confined only to questions the answers to which will have a tendency to expose him to a criminal charge as provided under Section 161 (2) Cr.P.C. Similarly, the accused cannot be compelled to give an answer which will offend Article 20 (3) of the Constitution of India which declares that no person accused of an offence shall be compelled to be a witness against himself. This is called the right against testimonial compulsion. Barring the above, the accused is bound to answer all questions put to him. If he refuses to answer questions which he is bound to answer, he may be liable to be prosecuted for an offence punishable under Section 179 IPC.

Q.49 Is not the registration of an FIR, a sine qua non (condition precedent or indispensable requisite) for the commencement of investigation?

Ans. Ordinarily yes. It has been so held in Mohindro v. State of Punjab (2001) 9 SCC 581 and Shashikanth v. CBI (2007) 1 SCC 630 = AIR 2007 SC 351 – S. B. Sinha, Markandey Katju - JJ. But, there can be extraordinary situations whereunder a Police Officer may have to conduct investigation even before the formal registration of an FIR. For instance, if a Police party consisting of an Assistant Sub Inspector and a few constables are proceeding on patrol duty in a jeep and while so, they stumble upon a person trying to hide himself under suspicious circumstances. A frisking of his body results in the recovery of cannabis i.e. ganja from his person. The said person cannot be allowed to escape. The narcotic drug obtained by rummaging the said person will have to be seized under a mahazar in the presence of witnesses whose signatures also may have to be obtained in the panchanama (mahazar) prepared for the seizure of the contraband ganja. The culprit together with the seized material and the seizure documents will have to be taken to the Police station from where an FIR will have to be registered and the offender along with the seized material and other papers will have to be handed over to the officer empowered under the Narcotic Drugs and Psychotropic Substances Act, 1985 (the "NDPS Act" for short). This will be a case of chance recovery. (Vide State of Punjab v. Balbir Singh (1994) 3 SCC 299 = AIR 1994 SC 1872 - S. Ratnavel Pandian, K. Jayachandra Reddy - JJ). It is profitable to notice in this connection the decision of the Privy Council in Emperor v. Khwaja Nazir Ahmed AIR 1945 PC 18 – VSL.C, Goddard, M Nair, Porter, Simonds – JJ, wherein it has been observed that the receipt and recording of an information report by the Police is not a condition precedent for setting in motion the criminal investigation. The said observation found acceptance at the hands of a three Judge Bench of the Supreme Court of India in paragraph 11 of Apren Joseph alias Current Kunjunju v. The State of Kerala (1973) 3 SCC 114 = AIR 1973 SC 1 – 3 Judges - J. M. Shelat - Ag. CJI, I. D. Dua, H. R. Khanna - JJ. The High Court of Gujarat also had taken a similar view. (Vide Kanti Lal Damodar Das v. State of Gujarat AIR 1970 Gujarat 218 – Shelat - J).

Q.50 Will not the illegality or irregularity of investigation vitiate the resultant trial ?

Ans. No, the defect or illegality, however serious, has no direct bearing on the cognizance of a case or its trial. It is only in the nature of an error in the proceeding antecedent to trial and is curable under Section 465 Cr.P.C. unless it can be shown to have caused prejudice to the accused or has resulted in miscarriage of justice. (Vide –

Lumbhardar Zutshi v. The King AIR 1950 PC 26 = (1950) 51 Cri.L.J. 644 - Macdermott, Reid, Radcliffe, M Nair – JJ;

Rishbud H. N. and Inder Singh v. State of Delhi AIR 1955 SC 196 = 1955 Cri.L.J. 526 (SC) – 3 Judges - B. K. Mukherjea, Bose, Jagannadhadas - JJ;

Din Dayan Sharma v. State of U.P. AIR 1959 SC 831 = 1955 Cri.L.J. 526 (SC) – S. J. Imam, J. L. Kapur - JJ;

Major E. G. Barsay v. State of Bombay AIR 1961 SC 1762 = 1961 (2) Cri.L.J. 828 – K. Subba Rao, Raghubar Dayal – JJ;

Munna Lal v. State of U.P. AIR 1964 SC 28 = 1964 (1) Cri.L.J. 11 (SC) – 3 Judges – P. B. Gajendragadkar, K. N. Wanchoo, K. C. Das Gupta - JJ;

State of A.P. v. N. Venugopal AIR 1964 SC 33 = 1964 (1) Cri.L.J. 16 (SC) – 3 Judges - P. B. Gajendragadkar, K. N. Wanchoo, K. C. Das Gupta - JJ;

State of U.P. v. Bhagwant Kishore Joshi AIR 1964 SC 221 = 1964 (1) Cri.L.J. 140 (SC) – 3 Judges - K. Subba Rao, Raghubar Dayal, J. R. Mudholkar – JJ;

Sulkunte M.C. v. State of Mysore (1970) 3 SCC 513 = AIR 1971 SC 508 – 5 Judges - J. C. Shah, G. K. Mitter, K. S. Hegde, A. N. Grover, A. N. Ray - JJ;

State of A.P. v. P.V. Narayana (1971) 1 SCC 483 = AIR 1971 SC 811 – S. M. Sikri – CJI, P. Jaganmohan Reddy – JJ;

Khandu Sonu Dhobi v. State of Maharashtra (1972) 3 SCC 786 = AIR 1972 SC 958 – 3 Judges – J. M. Shelat, P. Jaganmohan Reddy, H. R. Khanna - JJ;

A.C. Sharma v. Delhi Administration (1973) 1 SCC 726 = AIR 1973 SC 913 – 3 Judges – A. Alagiriswami, I. D. Dua, C. A. Vaidyalingam - JJ;

Durga Dass v. State of H.P. (1973) 2 SCC 213 = AIR 1973 SC 1379 – K. K. Mathew, I. D. Dua - JJ;

Nanak Chand v. State of H.P. (1974) 4 SCC 218 = AIR 1974 SC 765 – M. H. Beg, p. N. Bhagwati - JJ;

State of Rajasthan v. Kishore (1996) 8 SCC 217 = AIR 1996 SC 3035 – 3 Judges – K. Ramaswamy, S. Saghir Ahmad, G. P. Pattanaik - JJ;

Leela ram v. State of Haryana (1999) 9 SCC 525 = AIR 1999 SC 3717 – K. T. Thomas, U. C. Banerjee – J;

Dharmendrasinh @ Mansing Ratansinh v. State of Gujarat (2002) 4 SCC 679 = AIR 2002 SC 1937 – Doraiswamy Raju, Brijesh Kumar – JJ;

Union of India v. Prakash P. Hinduja (2003) 6 SCC 159 = AIR 2003 SC 2612 – S. Rajendrababu, G. P. Mattur – JJ;

Rotash v. State of Rajasthan (2006) 12 SCC 64 = 2007 Cri.L.J. 758 (SC) – S. B. Sinha, Markandey Katju - JJ;

Part 8: Questions & Answers By Justice V. Ramkumar- Investigation By Police-PART VIII