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

Ans. Yes, if it is relevant and its genuineness stands proved. However, Court may be cautious while scrutinizing such evidence. (Vide –

Pooran Mal v. Director of Inspection (Investigation) (1974) 1 SCC 345 = AIR 1974 SC 348 – 5 Judges – A. N. Ray – CJI, D. G. Palekar, Y. V. CHnadrachud, A. Alagiriswami, P. N. Bhagwati - JJ;

Pedda Narayana v. State of A.P. (1975) 4 SCC 153 = AIR 1975 SC 1252 – N. L. Untwalia, Murtaza fazl Ali – JJ;

Rameshwar Dayal v. State of U.P. (1978) 2 SCC 518 = AIR 1978 SC 1558 – S. Murtaza Fazl Ali, P. N. Shinghal - JJ;

Kuldip Singh v. State of Punjab 1992 Supp. (3) SCC 1= AIR 1992 SC 1944 – K. Jayachandra Reddy, G. N. Ray – JJ;

George v. State of Kerala (1998) 4 SCC 605 = AIR 1998 SC 1376 – M. K. Mukherjee, S. S. Muhammed Quadri – J;

Suresh Rai v. State of Bihar (2000) 4 SCC 84 = AIR 2000 SC 2207 - S. Saghir Ahmad, A. P. Misra, Y. K. Sabharwal – JJ;

Munshi Prasad v. State of Bihar (2002) 1 SCC 351 = AIR 2001 SC 3031 - Umesh C. Banerjee, K. G. Balakrishnan – JJ;

Umesh Kumar v. State of A.P. (2013) 10 SCC 591 = AIR 2014 SC 1106 - Dr. B. S. Chauhan, S. A. Bobde – JJ;

Para 23 of Madhu v. State of Karnataka (2014) 12 SCC 419 = AIR 2014 SC 394 - Dr. B. S. Chauhan, S. A. Bobde – JJ.)

Q.52 Is evidence obtained under an illegal search, admissible during trial ?

Ans. Yes. Even if search is illegal, that will not vitiate the seizure and the further investigation. (Vide –

State of Maharashtra v. Natwarlal Damodardas Soni (1980) 4 SCC 669 = AIR 1980 SC 593 – R. S. Sarkaria, O. Chinnappa Reddy - JJ;

Partap Singh (Dr) v. Director of Enforcement (1985) 3 SCC 72 = AIR 1985 SC 989 – D. A. Desai, V. Balakrishna Eradi - JJ).

Evidence obtained under an illegal search is not completely excluded unless it has caused serious prejudice to the accused. (Vide –

Radha Kishan v. State of U.P. AIR 1963 SC 822 = (1963) 1 Cri.L.J. 809 – 3 Judges - S. J. Imam, N. Rajagopala Ayyangar, J. R. Mudholkar – JJ;

Paras 28 and 31 to 33 of State of M.P. v. Paltan Mallah (2005) 3 SCC 169 = AIR 2005 SC 733 – K. G. Balakrishnan, Dr. A. R. Lakshmanan – JJ;

State of Punjab v. Balbir Singh (1994) 3 SCC 299 = AIR 1994 SC 1872 – S. Ratnavel Pandian, K. Jayachandra Reddy – JJ;

Para 11 of Ravinderan v. Supt. of Customs (2007) 6 SCC 410 = AIR 2007 SC 2040 – B. P. Singh, Tarun Chatterjee - JJ).

Q.53 Is not the accused entitled to hearing in deciding the agency to be entrusted with the investigation ?

Ans. No. The accused has no right to be heard in the matter. (Vide CBI. V. Rajesh Gandhi (1996) 11 SCC 253 = AIR 1997 SC 93 – A. M. Ahmadi – CJI, Sujata V. Manohar - JJ).

The accused has no right of hearing during the stage of investigation. (Vide Narendra G. Goel v. State of Maharashtra (2009) 6 SCC 65 = 2009 KHC 4632 (SC) – Dr. Arijit Pasayat, Asok Kumar Ganguly – JJ.

The High Court is not bound to make the potential accused a party nor hear him while ordering to entrust the investigation with the CBI. (Vide Dinubhai Boghabhai Solanki v. State of Gujarat (2014) 4 SCC 626 = 2014 Cri.L.J. 1886 – S. S. Nijjar, A. K. Sikri - JJ).

Q.54 Is there any difference in the nature and purpose of investigation under Chapter XII Cr.P.C. and under Section 202 (1) Cr.P.C. ?

Ans. Yes. The investigation under Chapter XII Cr.P.C., whether in pursuance of the registration of a crime under Section 154 Cr.P.C. or in compliance of a Court order under Section 156 (3) Cr.P.C., should necessarily end in a "Police Report" as defined under Section 2 (r) Cr.P.C. and filed under Section 173 (2) Cr.P.C. The purpose of such investigation is to prosecute the offender in case there is incriminating evidence against him.

NOTE BY VRK: The old view (AIR 1976 SC 1672, AIR 1977 SC 2401, AIR 2001 SC 571, AIR 2006 SC 705, AIR 2007 SC 2234, (2008) 2 SCC 409, (2010) 1 SCC 1, (2010) 4 SCC 185, (2010) 8 SCC 206, (2013) 5 SCC 615, (2013) 6 SCC 384 and AIR 2015 SC 1742) that the power under Section 156 (3) Cr.P.C. can be exercised only at the pre-cognizance stage, is now undergoing a radical change after the verdict in Vinubhai Haribhai Malaviya v. the State of Gujarat 2019 (14) SCALE 1 = 2019 (5) KHC 352 = 2019 (2) KLD 709 – Rohinton F. Nariman, Surya Kant, V. Ramasubramanian - JJ).

But an investigation ordered under Section 202 (1) Cr.P.C. which is at the post-cognizance stage, need not necessarily be by the Police. It can be by a non-police person as well. Even if such investigation is by the police, it will not end in a "Police report" filed under Section 173 (2) Cr.P.C. The purpose of this investigation is only to aid the Magistrate to consider whether there is sufficient ground for proceeding further with the private complaint. (Vide –

Dilwar Singh v. State (2007) 12 SCC 641 = AIR 2007 SC 3234 – Arijit Pasayat, D. K. Jain – JJ;

Mohd. Yousuf v. Afaq Jahan (2006) 1 SCC 627 = AIR 2006 SC 705 – Arijit Pasayat, S. H. Kapadia – JJ;

Ramdev Food Products (P) Ltd. v. State of Gujarat (2015) 6 SCC 439 = AIR 2015 SC 1742 – 3 Judges – T. S. Thakur, A. K. Goel, R. Banumathi - JJ.)

Under Section 202 (1) Cr.P.C. the Magistrate can either inquire into the case himself or direct an investigation by a Police Officer or such other person as he thinks fit he can thereafter also inquire into the case. In case the direction for investigation is to a Police Officer, such Police Officer is not subject to the restrictions under Section 162 Cr.P.C. which are applicable only to an investigation under Chapter XII. Hence, the Police Officer conducting investigation under Section 202 (1) Cr.P.C. is not prohibited from taking signed statements from persons. During the trial of the case, such signed statements can be used like any other previous statements not only for corroboration but also for contradiction. (Vide Biju Purushothaman v. State of Kerala 2008 Cri.L.J. 4488 = 2008 (3) KLT 85 – V. Ramkumar - J).

NOTE BY VRK: A doubt may arise as to which is the power of the police officer other than one invested under Chapter XII Cr.P.C. for conducting an investigation under Section 202 (1) Cr.P.C. No doubt, the police derives the power under Chapter XII Cr.P.C. as for which they can interrogate persons who are acquainted with the facts and circumstances of the case. But, unlike an investigation pursuant to the registration of an FIR under Section 154 Cr.P.C. or otherwise than on an information falling under Section 157 (1) Cr.P.C. or in compliance with an order under Section 156 (3) Cr.P.C. An investigation under Section 202 (1) Cr.P.C. will not end in a "police report" as defined under Section 2 (r) Cr.P.C. The mere fact that a non-police officer conducting an investigation under Section 202 (1) Cr.P.C. is invested with the power of an officer in charge of a police station, that will not clothe him with the power to file a "police report". Even a police officer cannot file a police report after conducting an investigation under Section 202 (1) Cr.P.C. Although, a reading of Section 202 (3) Cr.P.C. will indicate that a police officer conducting an investigation under Section 202 (1) Cr.P.C. alone has the power to "arrest" whereas no other person directed under Section 202 (1) Cr.P.C. to conduct an investigation, as the power of arrest, the Supreme Court has held that even a police officer conducting an investigation under Section 202 (1) Cr.P.C. cannot exercise the power of arrest. (Vide para 24 of Ramdev Food Products (P) Ltd. v. State of Gujarat AIR 2015 SC 174 – 3 Judges - T. S. Thakur, A. K. Goel, R. Banumathi – JJ. With due respect, I wish to say that the above interpretation thus violence to Section 202 (3) Cr.P.C. Moreover, there could be cases where a recovery falling under Section 27 of the Indian Evidence Act alone can clinch the complicity of the accused person and in such a contingency a power of arrest may be inevitable.

Q.55 Is not the Court including the High Court entitled to direct the investigating agency to submit a charge-sheet after the close of the investigation ?

Ans. No. (Vide –

Paras 17 and 18 of M.C. Abraham v. State of Maharashtra (2003) 2 SCC 649 = 2003 KHC 871 – N. Santhosh Hegde, B. P. Singh - JJ;

Para 19 of Abhinandan Jha v. Dinesh Mishra AIR 1968 SC 117 = 1968 Cri.L.J. 97 – M. Hidayatullah, Vaidialingam - JJ;

Para 8 of Ram Naresh Prasad v. State of Jharkhand (2009) 11 SCC 299 = AIR 2009 Supp. 219 – Dr. Arijit Pasayat, Mukundakam Sarma – JJ;

Para 13 of Vasanti Dubei v. State of M.P. (2012) 2 SCC 731 = 2012 Cri.L.J. 1309 SC – A. K. Ganguly, Gyan Sudha Misra - JJ).

Part 9: Questions & Answers By Justice V. Ramkumar- Investigation By Police-PART IX