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

Ans. No. Statement made by the Investigating Officer in the inquest report on the basis of what he heard from others would be hit by Section 162 Cr.P.C. (Vide para 30 of George v. State of Kerala (1998) 4 SCC 605 = AIR 1998 SC 1376 – M. K. Mukherjee, S. S. Mohammed Quadri – JJ.)

Q.92 What is an autopsy ?

Ans. The word “autopsy” is derived from the Greek word “autopsia” which means “the act of seeing for oneself”.

An autopsy is the medical examination of a corpse to determine the cause of death especially in criminal investigation. It is also called post-mortem or necropsy. (Vide Black’s Law Dictionary)

An autopsy or post-mortem examination may be performed to determine the cause of death or to observe the effects of disease and to establish the evolution and mechanisms of disease processes.

Q.93 What is the purpose of an autopsy ?

Ans. The purpose of an autopsy particularly, forensic autopsy, is to determine whether or not death was due to natural causes or as a result of any crime or disease. In medico-legal cases autopsy is important for the evaluation of the circumstances of death and may be critical in establishing the mode of death like suicide or homicide.

A postmortem report will contain details of injuries through scientific examination as against an inquest report which is primarily intended to find out the nature of injury and the apparent cause of death. (Vide Sunil Singha v. State of W. B. 2007 Cri.L.J. 516 (Cal.) – P. N. Sinha, P. S. Datta – JJ.)

Q.94 When does a Magistrate take cognizance of an offence on a “police report”?

Ans. Even though there is a plethora of verdicts on the process of taking cognizance of an offence on a “complaint”, frankly speaking, I have not come across any decision of the Supreme Court explaining as to how the Magistrate takes cognizance of an offence on a “police report”. However, from my trial Court experience I can roughly say as to when does the Magistrate take cognizance on a “police report”.

“If upon perusing the “police report” (which is substantially complete) and the materials produced along with it, and after exercising sound judicial discretion, the Magistrate applies his mind to the same, and takes the case on file against all or any of the accused persons (whether named or otherwise) for all or any of the offences and issues process to those accused persons against whom the case has been taken on file, he can legitimately be said to have taken cognizance of the offence on a police report”.

The following observations by the Supreme Court in the decisions hereinafter referred to, may be borne in mind:-

1. “In our view, from the facts stated above it is clear that at the stage of taking cognizance of the offence, provisions of S.190 Cr.P.C. would be applicable. S.190 inter alia provides that `the Magistrate may take cognizance of any offence upon a police report of such facts which constitute an offence.' As per this provision, Magistrate takes cognizance of an offence and not the offender. After taking cognizance of the offence, the Magistrate under S.204 Cr.P.C. is empowered to issue process to the accused. At the stage of issuing process, it is for the Magistrate to decide whether process should be issued against particular person/persons named in the charged sheet and also not named therein. For that purpose, he is required to consider the FIR and the statements recorded by the police officer and other documents tendered along with charge sheet. Further, upon receipt of police report under S.173 (2) Cr.P.C., the magistrate is entitled to take cognizance of an offence under S.190 (1) (b) even if the police report is to the effect that no case is made out against the accused by ignoring the conclusion arrived at by the investigating office and independently applying his mind to the facts emerging from the investigation by taking into account the statement of the witnesses examined by the police”. (Vide para 6 of M/s Swil v. State of Delhi AIR 2001 SC 2747 (M.B. Shah – J ).

2. “S.190 of the Code lays down the conditions which are requisite for the initiation of a criminal proceeding.

At this stage the Magistrate is required to exercise sound judicial discretion and apply his mind to the facts and materials before him. In doing so, the Magistrate is not bound by the opinion of the investigating officer and he is competent to exercise his discretion irrespective of the views expressed by the Police in its report and may prima facie find out whether an offence has been made out or not.

The taking of cognizance means the point in time when a Court or a Magistrate takes judicial notice of an offence with a view to initiating proceedings in respect of such offence which appears to have been committed.

At the stage of taking of cognizance of offence, the Court has only to see whether prima facie there are reasons for issuing the process and whether the ingredients of the offence are there on record”. (Vide paras 18 to 21 of Dr. Mrs. Nupur Talwar v. CBI, Delhi AIR 2012 SC 847 (A.K. Ganguly – J ).

3. It is obligatory on the part of the Magistrate to apply his mind to the contents of the charge-sheet and such application of mind should be reflected in the order taking cognizance. (Vide para 35 of Devendra v. State of U.P. (2009) 7 SCC 495 (S.B. Sinha – J ).

4. It is not correct to say that the Court taking cognizance of an offence can only look into the “police report” and nothing else. To say otherwise would be clearly contrary to the ruling in Satya Narain Musodi v. State of Bihar AIR 1980 SC 506 (D.A.Desai – J – paras 9 and 10). The report under Section 173 (2) Cr.P.C is to be accompanied by all the documents and statements. All of them can be looked into.

When a “police report” is filed cognizance is almost automatic. In fact, in A.C. Aggarwal, Sub-Divisional Magistrate, Delhi v. Master Ram Kali AIR 1968 SC 1 – 5 Judges (K.N.Wanchoo – CJI, R.S.Bachawat, V. Ramaswami, G.K.Mitter, K.S.Hegde – JJ ), it was held that even though Section 190 (1) (b) of the Code uses the words “may take cognizance”, it means must take cognizance and the Court has no discretion in the matter. In law, no reasons need be given for taking cognizance under Section 193. (Vide paras 23 and 25 of State of West Bengal v. Mohammed Khalid AIR 1995 SC 785 (S. Mohan – J ).

5. If the “police report” or “challan” or “charge-sheet” filed by the police is treated as “incomplete” by the police for the reason that “serologist report” and “site map” are yet to be received, it cannot be treated as an “incomplete report”. It can be treated as a “complete report” if there are sufficient materials on which the Magistrate can take cognizance of the offence. (Vide paras 13 and 14 of Tara Singh v. State AIR 1951 SC 441 – 4 Judges - Saiyid Fazl Ali, M. Patanjali Sastri, S. R .Das, Vivian Bose – JJ ).

Q.95 After registering an FIR for a cognizable offence, the Police arrests the accused and produces him before the Magistrate with a remand report. The Magistrate applies his mind to the “FIR” and “remand report” and remands the accused to judicial custody for 14 days under Section 167 (2) Cr.P.C. Has not the Magistrate taken cognizance of the offence ?

Ans. No. “FIR” and “remand report” are not documents constituting sources for taking cognizance of an offence under Section 190 (1) Cr.P.C. In the case of a police investigation, it is only when an FIR ripens into a charge sheet (police report), can the Magistrate take cognizance on the police report. (Vide para 10 of State of Karnataka v. Pastor P. Raju (2006) 6 SCC 728 = AIR 2006 SC 2825 – G. P. Mattur, Dalveer Bhandari - JJ).

Part 18: Questions & Answers By Justice V. Ramkumar- Investigation By Police- PART XVIII

Part 17: Questions & Answers By Justice V. Ramkumar- Investigation By Police- PART XVII