Column 12 Of Charge-Sheet, Delhi Police Showing A Person As ‘Suspect’ Is Arbitrary, Illegal, Unconstitutional

In Delhi, there is pernicious practice of Delhi Police of mentioning a person, against whom no incriminating evidence was found in the investigation, as a ‘Suspect’ in final Police Report. The practice is arbitrary, illegal, unconstitutional and ultra vires to the Code of Criminal Procedure, for the reason that it is settled law that the trial is always of an accused and once the investigation has demonstrated that the alleged person is not an accused and he has not done anything so as to make him an accused in terms of the sections mentioned in the FIR, reflection of his name as a ‘Suspect’ in a Final Report/ Charge-Sheet is complete miscarriage of justice and is a travesty of justice resulting in irreparable loss to the said person.

Final Report/Charge-Sheet

The expression 'police report' has been defined in Section 2(r) of Cr.P.C. to mean a report forwarded by a police officer to a Magistrate under Section 173(2) of Cr.P.C. A ‘police report’ is nothing but a Final Report/ Charge Sheet which is filed by an Officer In-charge of the Police Station under Section 173(2) of Cr.P.C on completion of investigation into a cognizable offence.

It is pertinent to refer to Section 173 of Cr.P.C. This Section, inter alia, provides that every investigation under Chapter XII of Cr.P.C., shall be completed without unnecessary delay and as soon as it is completed, the officer in charge of the Police Station shall forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the State Government, stating therein,

1. the names of the parties;
2. the nature of the information;
3. the names of the persons who appear to be acquainted with the circumstances of the case;
4. whether any offence appears to have been committed and, if so, by whom;
5. whether the accused has been arrested;
6. whether he has been released on his bond and, if so, whether with or without sureties;
7. whether he has been forwarded in custody under section 170; and
8. whether the report of medical examination of the woman has been attached where investigation relates to an offence under Sections 376, 376A, 376AB, 376B, 376C, 376D, 376DA, 376DB or Section 376E of the Indian Penal Code.

A careful perusal of Section 173 of Cr.P.C. ‘in general’ and Section 173(2)(i) of Cr.P.C., ‘in particular’, demonstrates that on completion of the investigation into a cognizable offence what has to be provided in the report by the Investigating Officer, are: (a) the names of the parties, (b) nature of the information, (c) names of the persons who appears to be acquainted with the circumstances of the case, (d) whether any offence appears to have been committed and if so, by whom, (e) whether the accused has been arrested, (f) whether he has been released on bail, (g) whether he has been forwarded in custody and (h) whether the report of medical examination of the woman has been attached, where investigation relates to an offence under Sections 376, 376A, 376AB, 376B, 376C, 376D, 376DA, 376DB or Section 376E of the Indian Penal Code.

Pertinently, it is noted that Section 173 of Cr.P.C. nowhere requires or mandates that any reference of any ‘Suspect’ is to be there in the final police report. The Investigating Officer has to mention the name of the accused as also the names of the persons who appeared to be acquainted with the circumstances of the case, but there is no provision that the same has to refer to someone in the report as a ‘Suspect’.

Column 12 of Final Report/ Chargesheet and its validity

The Govt. of NCT of Delhi has prescribed a Final Report Form to be used by Delhi Police for forwarding the same to a Magistrate empowered to take cognizance of the offence. The said Final Report Form contains total 18 columns therein. The particulars of persons, who have been put up for trial or in common parlance, have been ‘charge- sheeted’ would figure in Column 11 thereof, and the particulars of persons, who have not been put up for trial or in common parlance, have been ‘not charge- sheeted’ would figure in Column 12. The Column 12 of Final Report Form reads as under:

“12. Particulars of accused persons not charge sheeted (suspect) (Use separate sheet for each suspect)

S.No.__

(i) Name: Whether verified:

(ii) Father’s/Husband’s Name:

(iii) Date/Year of birth:

(iv) Sex:

(v) Nationality:

(vi) Passport No.: Date of Issue: Place of Issue:

(vii) Religion:

(viii) Whether SC/ST:

(ix) Occupation:

(x) Address: Whether verified:

(xi) Provisional criminal No.:

(xii) Suspicion approved: Yes/No

(xiii) Status of the accused (suspect): Bailed by police/Bailed by Court/Judicial custody/Not arrested

(xiv) Any special remarks including reasons for not charge sheeting:”

The State Government has the power to prescribe Form for Police Report, however, the same has to be in consonance with the requirements enumerated under Section 173(2)(i) of Cr.P.C. It is pertinent to note that in the matter of K. Veeraswami v. UOI 1991 (3) SCC 655 the Apex Court has clearly held that the State Government would incorporate only those details which are mentioned in Section 173(2)(i) of Cr.P.C. and it was not open for the State Government to incorporate any other details other than the one which is prescribed under the said Section. The particulars, therefore, which have been mentioned in the Charge Sheet have to be in consonance with the statutory provisions or rules framed thereunder.

As observed by the Apex Court in Satya Narain Musadi and Ors. v. State of Bihar 1980 (3) SCC 152 at 157 that the statutory requirement of the report under Section 173(2) would be complied with if the various details prescribed therein are included in the report. Nothing more need be stated in the report of the Investigating Officer. This report is an intimation to the Magistrate that upon investigation into a cognizable offence the Investigating Officer has been able to procure sufficient evidence for the Court to inquire into the offence and the necessary information is being sent to the Court.

Apart from that, it is always open for the trial Court, after trial begins, to issue summons to any person as an accused if it comes to the conclusion that the evidence which is brought on record clearly shows that he is involved in the commission of the offence on the basis of material which is placed before him and the said summons can be issued under Section 319 of Cr.P.C. and he can be added as an accused at any stage, in accordance with the law.

It is worth noting that the unfettered discretion given to the Investigating Officer by way of Column 12 of Final Report Form is arbitrary, illegal, unjust and against the mandate of the Code of Criminal Procedure, 1973. It has been observed that sometimes there are incriminating evidences available on record against a person but his name is reflected in Column 12 of Final Report/ Charge Sheet and sometimes it happens vice versa. Sometimes, it also seems that Column 12 of Final Report/ Charge-Sheet is used as a tool for favouritism and corruption and to unnecessary harass a person by mentioning his name in Column 12 of Final Report/ Charge Sheet, resulting in violation of his fundamental right to privacy. Pertinently, once the Investigating Officer has come to the conclusion that he has not found anything incriminating against someone, why should his name figure in Final Report Form? Logically, it should not.

It is pertinent to mention that the High Court of Himachal Pradesh in the matter of Neeraj Gulati v. State of HP (Crl. Misc. Petition no. 224 of 2022) vide its judgment dated 05.09.2022, directed that the State shall be well advised to issue necessary directions that the Form, in which the Investigation Report is submitted to the Magistrate, is in consonance with the provisions of Section 173 of Cr.P.C. and the word ‘suspect’ should not be used therein with reference to someone who has not been found to be an accused in the course of investigation.

It can fairly be concluded that no one can be referred to as a ‘Suspect’ in the Final Report, which is to be so filed by the Investigating Officer, in terms of Section 173 of Cr.P.C. In terms of the scheme of statute, the Investigating Officer has to clearly spell out the name of the accused as also the names of the persons who appeared to be acquainted with the circumstances of the case. However, there is no provision in the statute of referring to someone against whom no evidence is there that he has been involved in the commission of the offence as an accused, as a ‘Suspect. When in the course of investigation, the Investigating Officer has not found anything incriminating against someone, then reflecting him or her as a ‘Suspect’ in the Investigation Report, is not acceptable in law, as the word ‘Suspect’ undoubtedly casts a stigma on such a person which will affect his career in future and his fundamental rights under Article 21 of the Constitution would also be violated. Of course, in the course of trial, if the Court comes to the conclusion that someone other than those named as accused in the report, may also be guilty of the commission of offence, then the procedure as is prescribed in Section 319 of Cr.P.C., can be resorted to.

The Government of NCT of Delhi should take appropriate action and strike off Column 12 from Final Report Form/Charge-Sheet forwarded by Delhi Police to a Magistrate under Section 173(2) of Cr.P.C. as the same is arbitrary, illegal, unjust, unconstitutional and ultra vires to the Code of Criminal Procedure, 1973.

Author is an Assistant Public Prosecutor in the Directorate of Prosecution, Government of NCT of Delhi. Views are personal.