Chapter – IV

THE INVESTIGATIVE MACHINERY IN INDIA

Police force had always been in existence in India from time

immemorial. The old Kingdoms like Maurya, Gupta, and Moghul,
who ruled different parts of India, were preserved institutions
responsible for the maintenance of law and order and collection of
taxes. The imperialists also maintained an elaborate police system
and the present police system is the successor of this system. Now it
is well accepted that, no society can survive without law
enforcement machinery.

In India, The Police Act was enacted in 1861, to re-organize

the police and to make it a more efficient instrument for the
prevention and detection of crime. Even after independence, the Act
continues and the police in India function largely on the policy laid
down in this act. As per the Constitution, police is a State subject.1
The Government of India controls the C.B.I,2 C.R.P.F 3
and the
police forces of central administrative territories, under the
residuary powers.4

Maintenance of law and order is entrusted with the State

because the law enforcement machinery should have roots in the
society so as to act quickly and efficiently. If the policeman is from
another State, they may not act properly and efficiently due to many
reasons like, language problem, unawareness of the terrain of the

1
Constitution of India, List II- State List Entry 2. ―Police (including railway and
village police) subject to the provisions of entry 2A of List I‖.
2
Id. List I Entry 8
3
Id. List I Entry 2
4
Id. art.239. Administration of union territories are vested with the President of India.

90
locality, cultural differences and also people may mislead him in
different ways.

Each state in India has its own police force, under the direct
supervision of the concerned State government. The hierarchy of
police administration in each State is determined as per the Police
Act, 1861.5 Presently, Director General of Police is at the top
followed by Inspector Generals and Deputy Inspector Generals. In
each district, there will be one Superintendent of Police followed by
a number of Deputy Superintendents/ Assistant superintendents, a
number of Circle Inspectors, and a number of Sub-Inspectors, Head
Constables and Constables. Persons above the rank of Asst.
Superintendents belong to the prestigious Indian Police Service,
while the State governments appoint others. In metropolitan and
major cities, police commissioners are appointed who has the
powers of the SP. The entire system can be divided into four
categories.

i. Organization and
Administrative level - D.G.P, I.G.P, D.I.G and S.P.
ii. Supervisory level - Addl.S.P, Dy.S.P, Inspectors
iii. Investigatory level - Circle Inspectors and Sub Inspectors
iv. Constabulary - Head constables and Constables

Police force in India is dominated by line functions. Senior

officers command, middle ranks supervise, lower ranks execute.

5
Though all the State governments have passed separate Police Acts, even now the
1861 Act is in force by virtue of article 372(1) of the Constitution. State
governments passed Police Acts since police is included in List II- State List. These
legislations are in tune with the 1861 Act.

91
Powers and Duties
The police are an organized body of individuals to maintain
civil order and public safety and to investigate violations of law.
Though the activity of the police is adapted to the kind of society
that is to be policed, there are some common features inherent in the
work of the police. In order to enforce the law and for investigation
the society need police. This need is the deciding factor of the
powers and duties of the police. Ample powers have been given to
the police for the effective discharge of their duties. So, both power
and duty are correlated. One is given to achieve the other.

i. Duties and Functions

In all the democratic countries police are the agents of the
law of the land. Law entrusts the duties and functions to them. They
are answerable to law for their actions. The Police Act, 1861
defined the duties of a policeman.6 In addition to this, procedural
laws also impose certain duties for the effective law enforcement.
The functions of the police can be divided into two basing on the
time of its execution. First is the function before the fact, which
includes maintenance of law and order and connected matters.
Second is the function after the fact, which includes investigation
and allied matters like arrest of the accused, search, seizure,
interrogation and filing of final report.

Maintenance of law and Order

Policing are not confined to investigation of a crime alone.
The prevention of crime is an important duty, which the police have

6
The Police Act 1861, s.23

92
to perform along with other functions.7 Police are invested with
adequate powers to discharge their duties properly and effectively.
The power enjoyed by the police for the maintenance of law and
order is a pointer to their enormous responsibilities in this regard.

Historically, police force was constituted to maintain order in

the community. The maintenance of public order in a country
depends on the obedience, which the public accord to law of the
land. Either people obey the law out of a sense of conviction or
because they knew that, if not obeyed, the authorities will prosecute
them. If law and order is properly maintained, that will show the
capability of the police force in the State. Maintenance of law and
order means, absence of violence and an orderly state of affairs in
which the members of the society can peacefully pursue their
normal vocation of life.8 The concept ‗law and order‘ implies three
things; viz., i) absence of violence in the society, ii) Order in the
state of affairs of the society, and iii) Peace in the society. In short,
maintenance of law and order means maintenance of rule of law. It
signifies a state of tranquillity prevailing in the political society as a
result of internal regulations enforced by the government, which
they have established.9

Maintenance of law and order is a basic need in an organized

society. It is synonymous with public peace, safety and
tranquillity.10 The effective enforcement of laws is a means to
maintain law and order in the society. This preventive function of

7
Report of the Indian Police Commission 1902- 03, Government Central Printing
Office, Shimla, 1903, p.87
8
Basudev v. Rex. A.I.R.1949 All. 513.
9
Ramesh Thapper v. State of Madras, A.I.R. 1950 SC 124
10
Superintendent of Central Prisons, Fatehgarh v. Ram Manohar Lohia, A.I.R. 1960
SC 633

93
the police is a great task assigned to them. The lawmakers were
aware of the difficulties in discharging this task. Hence, ample
powers have been given to the police force to achieve the goal.

Realizing the importance of prevention of crime and safety

and protection of the society, the drafters of the Code of Criminal
Procedure earmarked ample powers to the law enforcement
machinery and those powers are mentioned in Chapters X and XI of
the Code.11 The purpose of granting these powers is to nip in the
bud the conduct subversive to peace and public tranquillity. 12 Along
with this Police Act also contained several powers to preserve peace
and security in the society.13 Apart from these statutory provisions,
it is the basic duty of the police to prevent crimes. 14 Within the
framework of law, police can resort to various methods of crime
prevention include data collection, intelligence, preventive arrest,
surveillance and even computerization.15

Whenever any breach of the peace which is about to occur or

which is occurred is likely to be renewed the police, in order to
prevent it, shall exercise the power. What action has to be taken and
how much power is to be exercised, all depend upon the doctrine of
necessity. If the threat is not obviated, how much harm it will cause
to the society and the people is the deciding factor.16 In order to

11
These chapters contained powers to deal with preventive actions of the police
(Ss.149-153) and dispersal of unlawful assemblies (S. 129).
12
Madhu Limaye v. Sub-Divisional Magistrate, Monghyr, (1970)3 SCC 746.
13
The Police Act s. 25 deals with power to take charge of unclaimed property; S.30
deals with power to regulate public assemblies and processions and licensing of the
same; S.31 states the duty of the police to keep order in public roads. In spite of
these powers the Kerala Police Act , 1960 deals with some more powers. Section 29
deals with duties and powers of the police.
14
Jay Engineering Works and others v. State of Bengal, A.I.R. 1968 Cal. 467.
15
Ayyappankutty v. State of Kerala, 1986 KLT 383.
16
Austin and another v. Metropolitan Police Commissioner, [2008] 1 All. E.R. 564.

94
avoid breach of the peace, police have the power to arrest, search
and confine persons and also to regulate the public processions and
harangues. They can control the traffic and make surveillance over
bad characters. Beat patrolling and VIP security are also part of
these. In short, police can even deny to a certain extent the liberty of
the people for the common benefit of the society.17

Investigation of Crime
Investigation into a crime is an important function of the
police. Investigation involves arrest, interrogation, search, seizure,
maintenance of case diary and assisting the prosecutor. Police have
been armed with extensive powers, independent of any external
intervention, to investigate a crime. It is the duty of everyone
concerned to assist the police in their work.18 The police can
question anybody who is acquainted with the facts of a case and all
such persons shall be bound to answer truly all questions relating to
the case.19

Collection of evidence is the prime aim of investigation. So,

any step taken by the police officer or the person authorized by a
magistrate towards the collection of evidence in regard to an
offence would fall within the ambit of the word ‗investigation‘.
Power of a police officer to investigate an offence depends upon
whether the offence is ‗cognizable‘ or ‗non-cognizable‘.20
Whenever the police officer, in the case of a cognizable offence,
received information regarding its commission, he must start the

17
Ibid.
18
Cr.P.C. ss. 37 & 39. These sections deal with the duty of the public to assist the
police and to give information of certain offences.
19
Id. ss.160 & 161. police officers have ample power to require the attendance of
witnesses and examne them.
20
Id. ss. 2 (c) and 2 (l)

95
investigation. No order from the Magistrate is required for starting
the investigation, unlike the non-cognizable cases. The proceeding
of the police officer in such situation could not be questioned on the
ground that he was not empowered to investigate the case. 21 This
empowers the police to execute their duty properly and efficiently.
Investigation is a matter entirely within the powers of the police and
the Court has no authority to interfere in the police investigation.22
Police have statutory power and right to conduct investigation in a
cognizable offence suspected to have been committed by an
accused and to bring the offender to book. In State of Bihar v.
P.P.Sharma23 Court observed;
The investigating officer is the arm of the law
and plays pivotal role in the dispensation of
criminal justice and maintenance of law and
order. The police investigation is, therefore,
the foundation stone on which the whole
edifice of criminal trial rests – an error in its
chain of investigation may result in
miscarriage of justice and the prosecution
entails with acquittal.24

Police are given liberty to collect necessary evidence in any

manner because of the strenuous task involved in the process. It is
his duty to bring out the truth. Therefore, it needs hard work, ability
to sort out necessary and important information, and intelligence to
deal with different people associated with various stages of the
crime. In the arduous process of investigation a heavy responsibility
is devolved upon them to see that the innocent persons are not
charged with an accusation.

21
Id. s.156 (1) and (2)
22
State of West Bengal v. Sampath Lal, A.I.R. 1985 SC 195
23
1992 Supple. (1) SCC 222.
24
Id. at p. 258

96
ii. Powers
Police are invested with wide powers with ample discretion,
which they can exercise without outside intervention. The powers
and the discretion are commensurate with their functions.
Maintenance of law and order and investigation in a crime are
arduous tasks for which sufficient power is necessary. While taking
measures to implement their functions, police have to respect the
legal interests of various political, social and religious groups.
Prevention of crime will help in preserving peace in the society. In
this context, the Code contains a separate chapter dealing with the
powers of police.25 Police can arrest a person, who is designing to
commit a cognizable offence, without any order from the magistrate
or without a warrant, in order to avoid the commission of crime.26
Similarly, police have the power to take actions for the protection
public property.27 In order to preserve order in the society, police
can take various measures such as preventive arrests28, regulation of
physical training29, assemblies and processions30, prohibition of
mass drill31 and carrying of swords32 and public harangues33 which
may create unrest in the society.

The investigating officer would conduct an in-depth

investigation to resolve the case. It is not an easy task. So, wide
powers are given to the police to conduct the investigation, which is

25
Cr. P. C. chapter XI. - Preventive Actions of the Police.
26
Id. s.151(1)
27
Id. s.152.
28
Id. s.151.
29
The Kerala Police Act, s.18A.
30
Id. s.20.
31
Id. s.21A.
32
Id. s.21.
33
Id. s.22.

97
not controllable either by the judiciary or the executive. 34 Only in
the case of violation of human rights, court can interfere in the
process.35 The Code contains several provisions to ensure a fair
investigation on the allegations against a person charged with
criminal misconduct.

Police are given wide discretion to take appropriate decision

regarding prosecution of a person. Once the police investigate and
finds an offence having been committed, it is their duty to collect
evidence for proving the offence. Once that is completed and the
investigating officer submits report to the court to take cognizance
of the offence, its duty ends.36 But, in between, police enjoy ample
freedom in the areas of arrest and detention, interrogation, search
and seizure and filing of final report.

Before the inception of PACE Act, 1984, the police had no

general and clear powers for investigation in England. Prior to the
PACE, the proceedings for different steps for investigation were set
out in Judge‘s rules, which is only an administrative order. But, in
India, from the very beginning Code of Criminal Procedure is in use
which contains elaborately the powers of the police. It defines each
and every step of investigation and approves the individuality of the

34
Magistrate cannot direct the police to submit a charge-sheet and compel the police to
form a particular opinion on investigation and to submit a report according to such
opinion. Abhinandan Jha v. Dinesh Mishra, A.I.R 1968 SC 117. Section3 of the
Police Act,1861 provides that except as authorized under the provisions of the Act,
no person, officer or court shall be empowered by the State Government to
supersede or control police functionary… no executive order can emanate from a
Magistrate superseding the final report. See also, State v. Heera, A.I.R. 1968 Raj.
233.
35
Zahira Habibulla H. Sheik v. State of Gujarat, (2004)4 SCC 158. In this case due to
defective investigation court interfered. Vineet Narain v. Union of India, A.I.R. 1998
SC 889. In this case due to continuing inertia of the investigating agency court
directed the CBI to conduct investigation.
36
State of Bihar v. JAC Saldanha, A.I.R. 1980 SC 326.

98
police institution. An analysis of the powers of Indian police points
to the need for certain changes in the law to cope with the growing
demands of the criminal justice system.

Arrest and Detention

Arrest is a tool in the hands of the police37 for bringing the
alleged offender before a court of law. The decision to arrest a
person is a personal decision to be taken by the police officer for
which he is, in law, responsible. Arrest can be made in pursuance of
a warrant issued by a magistrate or without a warrant but made in
accordance with legal provisions permitting such warrant.38 In the
case of cognizable offence arrests can be made without warrant
from the magistrate. Arrest can be made either for ensuring the
presence of the person before a judicial authority or to prevent the
commission of a crime. The arrestee shall not be detained in
custody for more than twenty-four hours. In the case of preventive
arrest he should be released unless he is required under any other
provisions of the Code or any other law for the time being.39 In the
other case, he should be produced before a magistrate within the
stipulated time. Sometimes arrest becomes necessary for obtaining
the correct name and address of a person committing a non-
cognizable offence.40 Other circumstances which necessitate arrest
are, when a person obstructing a police officer in the discharge of
his official duties41 and when a person escaping lawful custody.

37
As per Sections 43 and 44 of the Code, a private person or a Magistrate can arrest an
offender who in their presence committed a non-bailable offence.
38
Cr.P.C.s.2(c) and (l)
39
Id. s.151(2)
40
Id. s.42
41
Id. s.41(1)(e).

99
 Chapter V of the Code deals with powers of the police
officers to arrest. Sections 41, 42 and 46 give power to the police to
arrest a person and even to use necessary force to effect the arrest.
Police can require the assistance of any person in arresting or
preventing the escape of any other person, whom such officer is
authorized to arrest.42 Arrest becomes necessary when the summons
procedure is reasonably likely to be ineffective or when the
circumstance warrants. The seriousness of the offence will have a
bearing on the decision of arrest. The necessity to arrest a person
therefore requires that sufficient power be available to the police for
the effective enforcement of law.

Interrogation and Examination

After the arrest and before the arrestee is produced before a
magistrate police will interrogate, photograph, fingerprint, indict
and will take him to places for the collection of evidence. Various
investigative procedures carried out at this time. The main and the
important procedure is the interrogation43 of the suspect. Formal
interrogation by the police of a man in custody falls into two
categories. One is the interrogation for the collection of evidence.

42
Id. s.37.
43
Interrogation is accepted as a method of investigation of violation of laws from the
time of genesis of man. God created Adam and Eve and put them in the Garden of
Eden to till it and keep it. God commanded to them that they are free to eat of
every tree in the garden except the tree of the knowledge of good and evil. But
they violated the law and when Lord God came in search of them, they hid
themselves from the presence of God. God asked them, ―Where are you?‖ Adam
replied, ―I heard the sound of thee in the garden and I was afraid because I was
naked; and I hid myself‖. God asked, ―who told that you that you are naked? Have
you eaten of the tree of which I commanded you not to eat?‖ Adam said, ―The
woman whom thou gavest to be with me, she gave me a fruit of the tree, and I ate‖.
Then God asked Eve, ―What is this you have done?‖ Eve said, ―the serpent
beguiled me, and I ate‖. After this interrogation, God pronounced the judgment.
This was the first interrogation in the history and it shows that before pronouncing
the judgment the person may be given adequate opportunity to explain his
position, because it is a process of evidence collection and may end in conviction.
The Holy Bible, Genesis,3:1-13

100
Often man has been taken into custody not because the police
suspect him of guilt but under the firm belief that he knew
something regarding the crime under investigation. In this case
police are bothered only about the evidence. Second is the
interrogation of the suspect/accused. In this case, police is very
much concerned about the confession of the person. However, this
confession is not admissible in evidence44 it may help the police in
collecting required evidence without much effort. The best source
of information regarding the crime is the suspect himself. For
solving the issues the co-operation of the accused is highly
essential. The police must have reasonable opportunity to
interrogate the suspect in private, before he has a chance to
fabricate a story or to decide that he will not cooperate. 45 The
outside interference is likely to reduce the possibility of cooperation
from the accused in the interrogation process. Moreover, the best
time for getting information from the suspect is immediately after
arrest. Similarly, the witnesses or any other person who are
acquainted with the incident also must be questioned immediately
after the incident. The delayed questioning is not worthy and will
not serve any purpose. The questioning may be examination of
witnesses, and interrogation of the suspect.

Section 161 of the Code of Criminal Procedure extends all

powers to the police to question any person46 who is acquainted
with the facts and circumstances of the case. Corollary to the power
of the police, such person is under a duty to answer truly all

44
Evidence Act, ss. 24 & 25. At the same time as per section 27 discovery on the basis
of confession is admissible in evidence.
45
Herbert L.Packer, ―Two Models Of Criminal Process‖, 113 Uni.Pa.L.R. 1 at p. 31.
46
Any person includes accused person also. Abdul Razak v. Union, 1986 Cri.L.J. 2018
(Bom.).

101
questions relating to the case.47 The power to examine persons who
are supposed to be acquainted with the case is not absolute. It is
subjected to three limitations. First, is that the person is not bound
to answer questions which expose him to a criminal charge or to a
penalty or forfeiture.48 This is in tune with the right of every person
not to be compelled to be a witness against himself.49 Privilege
against self-incrimination is a valuable right guaranteed by the
Code50 and the Constitution.51

Secondly, the police have no right to compel the person to

sign the statement, which is reduced into writing under section 161
of the Code. This will enable the person to deviate from the
statement, which is submitted by the police before the court
purported to be made by the person examined. The object is to
protect the accused from prejudices by the improper use of such
statements recorded loosely or inaccurately. Moreover, police
should not be allowed to trap the witnesses by recording statements
according to their wishes and getting a signature from the deponent.
If trapped in such a way, the deponent would find it difficult to
deviate from the statement given to the police.52

47
Cr.P.C. s.161(2) ―Such person shall be bound to answer truly all questions relating to
such case put to him by such officer, other than questions the answers to which
would have a tendency to expose him to a criminal charge or to a penalty or
forfeiture‖.
48
Ibid.
49
Nandini Satpathi v. P.L.Dani, (1978)2 SCC 424. Court observed that the accused is
entitled to keep his mouth shut if the answer sought has reasonable prospect of
exposing him to guilt.
50
Cr.P.C. s.161(2)
51
Constitution of India, Art.20(3). ―No person accused of any offence shall be
compelled to be a witness against himself‖.
52
Joint Committee Report, p.XVI. Cited in K.N.C.Pillai (edtd.) Criminal Procedure,
Eastern Book Company, Lucknow, 4th edn., 2006 at p.137.

102
 Third, is the restrictions imposed on the use of the statements
so recorded into writing by the police officer. These statements
have no evidentiary value except the use of corroboration and
contradiction under sections 15753 and 14554 of the Law of evidence
respectively. No statements given to a police officer shall be used as
evidence in a court of law55 because it is neither given on oath nor it
is tested by cross-examination. This statement is not evidence of the
facts contained therein and it cannot be considered as substantive
piece of evidence.56

Interrogation of the accused is an important process in the

investigation of a case. Section 161 Cr.P.C. includes the
examination of the suspect also, who may thereafter be the accused
of the offence.57 The law presumes that the questioning is necessary
for the effective enforcement of law and it seems that this view has
been accepted by the public and at times by the court.

Wide powers of interrogation have been given to the police,

because of several reasons. The police often secure valuable
information during the course of interrogations. This information
may be related to the same offence or regarding some other

53
The Law Of Evidence, s.157 states, ―In order to corroborate the testimony of a
witness, any former statement made by such witness relating to the same fact, at or
about the time when the fact took place, or before any authority legally competent to
investigate the fact, may be proved.
54
S.145 states that, ―A witness may be cross-examined as to the previous statements
made by him in writing or reduced into writing, and relevant to matters in question,
without such writing being shown to him or being proved; but, if it is intended to
contradict him by the writing, his attention must, before the writing can be proved,
be called to those parts of it which are to be used for the purpose of contradicting
him.
55
Ramprasad v. State of Maharashtra, A.I.R. 1999 SC 1969
56
Sewaki v. State of H.P., 1981 Cri.L.J. 919 (HP).
57
Pakala Narayana Sami v. Emperor, 1939 PC 47; In re Dinanath Ganpathi Rai,
A.I.R. 1940 Nag. 186; Nandini Sathpathy v. P.L.Dani, (1978)2 SCC 424, 444;
Mahabir Mandal v. State of Bihar, (1972)1 SCC 748, 763

103
offences. Sometimes, this information may help the police to
explore evidence in some other offences and to find out the culprits
of those offences. Hence, the interrogation process increases the
power and efficiency of the police.

Search
Documents and other material objects necessary and relevant
for the effective prosecution of a case should be made available to
the agency, which conducts the investigation. When the summons
to produce such documents or things fails, the Code empowers the
police to conduct search of places suspected to contain such
documents or things. In the case of emergency, police can make
search without warrant. Though wide powers have been extended to
the police, the Code strives to strike a balance between the interests
of the individual and of the society by providing safeguards in
favour of the individuals.58

Police have no authority to require the accused person to

produce any documents or things under section 91 Cr.P.C, which
are incriminating in nature.59 The search must be for a particular
thing or document or specified material necessary for the purpose of
investigation. No warrant for a general search can be issued.60
Moreover, the investigating officer must record the reasons for the
search and if not, the search would be illegal. The copies of the
record must be sent to the nearest Magistrate empowered to take
cognizance of the offence forthwith. At the time of conducting the

58
K.N.C.Pillai, (Edtd.) Criminal Procedure, Eastern Book Company, Lucknow, 2006,
p. 83
59
State of Bombay v. Kathikalu Oghad, (1962)3 SCR 10.
60
Sitaram Ahir v. Emperor, A.I.R. 944 Pat. 222, 224

104
search, two independent respectable inhabitants of the locality shall
be procured for witnessing the search.

If the search procedures are not legal, the police officers may
face legal consequences, but it will not vitiate the evidence
61
procured. In Radhakrishnan v. State of U.P, the court has made
following observations.
So far as the alleged illegality of the search is
concerned, it is sufficient to say that even
assuming that the search was illegal the
seizure of the articles is not vitiated.62

In Prathap Singh v. Director, Enforcement, FERA,63 also

court has taken the view that, illegality of the search does not vitiate
the evidence collected during such illegal search. So, any non-
compliance of the provisions of Sec.100 or Sec.165 of the Code, by
itself cannot be a ground for outright rejection of the prosecution
case.64 However, the effect of such non-compliance may have some
bearing upon the appreciation of the evidence of the witnesses.65
The judicial attitude in this regard is that, every deviation from the
details of the procedure prescribed for search will not vitiate the
trial.66

In Kuruma v. R.67 Court evolved a test to ascertain whether

the evidence collected is admissible or not. According to Lord

61
A.I.R. 1963 SC 822.
62
Id. at p.824.
63
A.I.R. 1985 SC 989.
64
State of Maharashtra v. P.K.Pathak, A.I.R. 1980 SC 1224; State of Punjab v.
Wassan Singh, A.I.R. 1981 SC697; State of Maharashtra v. Natwarlal Damodardas
Soni, A.I.R. 1980 SC 593.
65
Matjog Dubey v. H.C.Bahri, A.I.R. 1956 SC 44.
66
State of Himachal Pradesh v. Pirthi Chand, A.I.R.1996 SC 977; State of Punjab v.
Jasbir Singh, (1996)1 SCC 288.
67
[1955]1 All.E.R. 236.

105
Goddard, if the evidence is relevant to the matters in issue, it is
admissible and the court need not look into how they obtained it.
He placed reliance on Crompton, J. observation that, ―it matters not
how you get it; if you steal it even, it would be admissible‖. 68 It
seems that Lord Justice Crompton did not consider the fact that
stealing is an offence. This view only encourages the police to use
search as a weapon to procure evidence and under the guise,
fabricate evidence.

A police officer may search a person or premises, if he has

reasonable grounds for believing that there is possibility to find
stolen or prohibited articles from the person or premises. The object
of search is to dispel or confirm those suspicions. It can be
conducted either with or without warrant. The Code empowers the
court to issue a warrant for a general search of any place for the
purpose of any enquiry or trial.69 Same time police officer can
conduct the search without a warrant from the court, if the
circumstances of the case require immediate search of a place. In
the case of search with warrant there may arise no problem since
there is judicial supervision. But in the case, search without warrant,
the law enforcers may, sometimes, disregard the law and justify
their actions as a weapon in the fight against crime. The police
argue that the encroachments upon the rights of a person must be
tolerated in the larger interest of the society. It is necessary that,
before proceeding to a place for search, the police officer must
record the grounds of his belief as to the necessity of such search
and must also specify the things for which search is to be

68
8 Cox C.C. 501, quoted in ibid.
69
Cr.P.C. s. 93 Cr.P.C.

106
conducted.70 It is a safeguard against arbitrary or roving search.
This may avoid the possibility of manipulation of records by a
police officer and choosing his ‗grounds of belief‘ after the search.
The recording of reasons is an important step in the matter of search
and to ignore it is to ignore the material part of the provisions
governing searches.71

Filing of Final Report

As per Sec. 173 of the Code, the police in India are under an
obligation to file a report before the magistrate, immediately after
the completion of the investigation. Though the section cast a duty
upon the police, it is their privilege to file the final report containing
all the relevant information for prosecuting the named offenders, if
there is sufficient evidence.

The formation of an opinion, as to whether or not to place

the accused on trial, is that of the investigating officers and the
court cannot compel the police to form a particular opinion in the

70
Sohan Lal v. Emperor, A.I.R 1933 Oudh 305. The appellant, in this case, and his
maid servant was prosecuted u/s.120(b), 240 and 243 IPC, alleging that they
conspired together to deliver counterfeit of Queen‘s coins and were in possession of
such counterfeit coins. Police searched their house and confiscated 108 counterfeit
coins from inside a well in the house. The trial court convicted them. The appeal of
A2 was accepted and A1 was rejected by the sessions court. In the appeal he
challenged the procedure of search adopted by the police as against the law.
Allowing the appeal, the court said that the police officers are bound to record in
writing the grounds of his belief as to the necessity for searching the house and in
specifying clearly the articles or articles for which the search was to be made.
71
State v. Rehman, A.I.R 1960 SC 210. The deputy superintendent of central excise
received information that the respondent and his father had cultivated tobacco
but had not paid the excise duty payable to thereon. The deputy Superintendent
and his party went to the house of the respondent and declared their intention to
conduct search in the house. Then the respondent and another person obstructed
the making of search; as a result, the dy.superintendent fall down and received
some injuries. The respondent was convicted under sec.353 IPC. On appeal the
session judge reversed the finding stating that the search had not been conduct ed
in accordance with Sec.165 Cr.P.C and remanded the case for fresh enquiry. The
magistrate acquitted the accused. The high court agreed with the findings of the
lower court. The Supreme Court also affirmed the decision of the lower trial
court Since, the search was made in contravention of the provisions of the Code

107
investigation and to submit a report, according to such opinion. This
is so because, the manner and the method of conducting the
investigation, are left entirely to the police. In King Emperor v.
Kwaja Nazir Ahmad 72 Lord Porter observed:

The function of the judiciary and the police

are complimentary, not overlapping and the
combination of individual liberty with a due
observance of law and order is not only to be
obtained by leaving each to exercise its own
function, always of course, subject to the right
of the Court to intervene in an appropriate
case when moved under sec. 491 of the Code
of Criminal Procedure to give discretions in
the nature of habeas corpus. In such a case as
the present, however, the courts‘ functions
begin when a charge is preferred before it and
not until then.73

It is clear that, police have absolute control over the

proceedings of this part of the investigation and no court can

72
A.I.R. 1945 PC 18. In a partition case, the respondent, who was the Special Official
Receiver of the Lahore high court, was appointed as receiver of the suit property.
Since the parties were dissatisfied with the activities of the respondent, they applied
to the court to remove him from receivership. They filed an affidavit before the court
stating that the receiver persuaded them by means of fraudulent representations, to
get him appointed as receiver in the case. The Sub-Judge refused the application.
The High Court also dismissed the application. Then the lawyer representing one
party in the suit written a complaint to the District Magistrate charging the
respondent with a number of crimes and applied for his removal from receivership.
The District Magistrate made an order for investigation. The respondent approached
the High Court for staying of the investigation process and an interim stay was
granted. Meanwhile, two complaints also filed before the police and they started
investigation. The Chief Justice telegrammed to the District Magistrate to stop the
investigation on a petition filed by the Queen. Again the respondent approached the
court for stay. Interim stay granted. High Court called for all the records and heard
the matter. The court decided to quash the proceedings and to prohibit the
investigation. In appeal, the Privy Council found that the more serious aspect of the
case is to be found in the resultant interference by the court with the duties of the
police. Privy Council advised her Majesty to permit the police to proceed with the
investigation.
73
Id. at p. 22.

108
interfere in such proceedings. With the filing of this report before
the magistrate, the investigation in the case by the police comes to
its natural end. Therefore, all the proceedings from the starting of
the investigation until the submission of the final report under
section 173 of the Code are under the control of the police. Based
on the investigation, forming an opinion about the case, and filing
of the report are the prerogatives of the police.

In Abhinandan Jha v. Dinesh Mishra74 the question, whether

a Magistrate can direct the police to submit a charge sheet, was
answered by the Supreme Court in favour of the police. Court
observed:
The Magistrate has no power to direct the
police to submit a charge-sheet when the
police have submitted a final report that no
case is made out for sending the accused for
trial. The function of the magistracy and the
police are entirely different, and though in the
circumstances mentioned earlier, the
magistrate may or may not accept the report,
and take suitable action, according to law, he
cannot certainly infringe upon the jurisdiction
of the police, by compelling them to change
their opinion, so as to accord with his view.75

The final stage of the investigation, i.e., the formation of an

opinion by the police as to whether a case is made out against the
accused, is to be taken by the police and by no other authority. Even
if the Magistrate under section 156(3) of the Code orders the
investigation, the investigation is the prerogative of the police.76

74
A.I.R. 1968 SC 117.
75
Id. at p. 120.
76
Nirmaljeet Singh Hoon v. The State of W.Bengal, A.I.R.1972 SC 2639, 2650. It is an
appeal against the order of the High Court dismissing the complaint filed by the
appellant under sections 120 B, 406 and 420 IPC against respondents.

109
But, the police have no unfettered discretion to commence
investigation. They can exercise the power of investigation only if
they get the FIR or other material which prima-facie discloses the
commission of a cognizable offence77. Police have been given
power of investigation to avoid interference from other quarters, to
avoid fabrication of cases at the instance of some higher ups. More
over, interruption may lead to unnecessary delay in the process. The
present situation in India shows that there is inordinate delay in
filing the final report before the Court by the police. Reason may be
the non-completion of the investigation within the stipulated period.
It may be the root cause for the defeat of prosecution in most of the
cases in India. Heavy workload, deploying the police to other work
is some reason for the delay in the investigation process. The only
way out is to constitute a separate agency for investigation.

Nature of Power
The police are depicted as ‗citizens in uniform‘. This is an
indication of the real powers of the police. In 1929, the Royal
Commission on Police Powers and Procedures observed:
The police … have never been recognized,
either in law or in tradition, as a force distinct
from the general body of citizens…Indeed, a
police man possess few powers not enjoyed
by the ordinary citizen, and public opinion,
expressed in Parliament and elsewhere, has
shown great jealousy of any attempts to give
increased authority to the police.78
77
State of West Bengal v. Swapan Kumar Guha, (1982) 1 SCC 561. The question in
this case was whether the FIR lodged by the commercial tax officer, Bureau of
Investigation, against the firm and its partners discloses an offence under section 3 of
the Prize chits and Money Circulation Schemes (Banning) Act, 1978. Supreme Court
allowed the appeal since the FIR does not disclose any offence against the
respondents.
78
Report of the Royal Commission on Police Powers and procedures, 1929, Cmnd.
1728 (London: HMSO) quoted in David Dixon, Law in Policing: Legal Regulations
and Police Practices, Clarendon Press, Oxford, 1977 at p. 52.

110
 This observation was approved by the subsequent
Commissions and all hold the principle that police men are ordinary
citizens in uniform, some what elevated, and formed as a group
with a duty to enforce the law in the society. Hence, they are given
some powers, which an ordinary citizen does not have. This power,
which is legal, transforms them into legal organization representing
the State. When they exercise the power, it transforms the legal
relations between State and the individual. So, their powers and
duties are specifically defined and made known to all. If the police
officer does not have the authority, their actions can be legally
resisted, just as if they are private citizens infringing other‘s
rights.79 It is true that for police certain powers are granted, which
are exemptions from criminal or civil liability, which otherwise
would be unlawful acts.80 For example, a search of a person
constitutes an assault unless a power is provided.

Considering the importance and complexities of the duties of

the police, they have been granted exceptional powers. In the
performance of their duty, an officer may use fire arms, run traffic
lights, control vehicular traffic, regulate processions, enter premises
without warrants, and take all steps to collect evidence in a case,
conduct preventive arrest, decide whether to prosecute a person or
not, take action against public nuisance. The exercise of the power
depends on two things, viz., seriousness of the situation and
necessity.

79
Niyamat Ali v. State of U.P. 1987 Cri.L.J. 1881; Poovan v. S.I.of police, Aroor,
(1993)1 K.L.T. 454; Pedro v. Dis, [1987]2 All. E.R.59 where it is stated that, when a
person is detained, he must be informed that, he was no longer a free man and the
grounds on which he is detained. Otherwise cannot assume that the police man is
acting in the execution of his duty.
80
David Dixon, Law in Policing: Legal Regulations and Police Practices, Clarendon
Press, Oxford, 1977 at p. 64.

111
 The powers given to the police are unfettered and
unconditional. The Supreme Court decision in State of Bihar v.
P.P.Sharma81 is a pointer to the measure of power given to the
police. The Court observed:
The Code demarcates the field of
investigation exclusively to the executive to
be vigilant over law and order. Police officers
have statutory power and right as part to
investigate the cognizable offence suspected
to have been committed by an accused and
bring the offender to book…Investigation is a
tardy and tedious process. Enough power,
therefore, has been given to the police officer
in the area of investigatory process, granting
him or her great latitude to exercise his
discretionary power to make a successful
investigation.82

Considering the complexities and the difficulties involved in

the investigation process, police have been given ample freedom to
collect evidence in any manner he feels expedient in the case. It is
his duty to search for the truth on behalf of the society. This
justifies the granting of unfettered and unconditional power to the
police. This does not mean that, the police can do whatever they
wanted to do. It is unconditional in the sense that, the officer
exercising the power is the sole judge of the situation. The officer is
empowered to take a decision whenever it is necessary and it cannot
be challenged in any court on the ground that ‗reasonable grounds‘
did not exist. The legal position is that if an offence is disclosed, the
court will not normally interfere with the investigation in the case.83
If the investigation is legal and on the basis of a prima facie

81
Supra n.23.
82
Id. at p. 258.
83
State of West Bengal v. Swapan Kumar Guha, (1982)1 SCC 561.

112
disclosed case, police is the sole authority to conduct the
investigation. But, if they transgress the limits prescribed by the
law, in order to protect the rights of the persons, court can interfere
in the process. Even in such situations, court has no authority to
direct the police about the modus operandi to conduct the
investigation and to file the final report accusing somebody.84 This
shows that areas have been carved out, wherein the court can
interfere in the proceedings.85 In Bhajan Lal86 court observed:
But if a police officer transgress the
circumscribed results and improperly and
illegally exercise his investigatory powers in
breach of any statutory provision causing
serious prejudice to the personal liberty and
also property of a citizen, then the court on
being approached by the person aggrieved for
the redress of any grievance has to consider
the nature and extent of the breach and pass
appropriate orders as may be called for
without leaving the citizens to the mercy of
police echelons since human dignity is dear
value of our Constitution.87

The power to investigate into the cognizable offence is

unfettered, but it should be exercised legitimately and in strict
compliance with the provisions of the Code. Court has no authority
to obliterate the investigation process, when the agency is within
the legal bounds as mentioned in the Code. At the same time,
safeguards are provided by the law to insure that the police are

84
State of Haryana v. Bhajan Lal, A.I.R. 1992 SC 604.
85
See also, R.P.Kapoor v. State of Punjab, A.I.R. 1960 SC 566; S.N.Sharma v. Bipin
Kumar Tiwari, A.I.R. 1970 SC 786; Prabhhu Dayal Doerah v. The District
Magistrate, Kamarup, A.I.R 1974 SC 183; State of W.Bengal v. Swapan Kumar
Guha, A.I.R. 1982 SC 949.
86
Supra n.84
87
Id.at p.620

113
exercising their power only when it is necessary and after giving
due consideration to the rights of the citizens or the accused.

Absolute powers are given to the police, in the sense that

there is no supervisory control over the exercise of this power by
another agency. It is independent of interference from the Executive
or the Judiciary.88 If it is proved that, serious prejudice is caused to
the suspect, then only the court can interfere and that too not to
question the authority of the police in any case. In State of Haryana
v. Bhajan Lal 89 Supreme Court observed:
Indeed a noticeable feature of the scheme
under chapter XIV of the Code is that a
Magistrate is kept in the picture at all stages
of the police investigation, but he is not
authorized to interfere with the actual
investigation or to direct the police how that
investigation is to be conducted.90

If the offence is disclosed, the court must refrain from

interfering in the investigation process. If the court interferes in
such an area, there is every chance for derailing the investigation.
The result will be the acquittal of the accused to the serious
detriment of the welfare of the society and the causes of justice will
suffer.91 The Privy Council in Emperor v. Kwaja Nazir Ahmad92
while dealing with the statutory rights of the police with regard to
investigation of a cognizable case has made the following
observations:

88
State of West Bengal v. S.N.Basak, A.I.R. 1963 SC 447; Jehan Singh v. Delhi
Administration, A.I.R. 1974 SC 1146.
89
Supra. n. 84
90
Id.at p. 620.
91
State of West Bengal v. Swapan Kumar Guha A.I.R. 1982 SC 949 at p. 971.
92
A.I.R. 1945 PC 18.

114
 …so it is of the utmost importance that the
judiciary should not interfere with the police
in matters which are within their province and
into which the law imposes upon them the
duty of enquiry. In India as has been shown
there is a statutory right on the part of the
police to investigate the circumstances of an
alleged cognizable crime without requiring
any authority from the judicial authorities,
and it would, as their Lordships think, be an
unfortunate result if it should be held possible
to interfere with those statutory rights by an
exercise of the inherent jurisdiction of the
court.93

The courts in various subsequent decisions have acclaimed

this view.94 The holding of all these decisions and the core of
sections 15695, 15796 and 15997 of the Code is that, if a police
officer has reason to suspect the commission of a cognizable
offence, he must proceed with the investigation or depute one of his
subordinate officers to investigate the case. If the police officer
found that no sufficient ground exists to proceed with the
investigation, he can dispense with the investigation altogether. It
also makes clear that the field of investigation is exclusively within
the domain of the investigating agencies over which the courts have
no control. The court should not stifle or impinge upon the
proceedings in the investigation, so long as the investigation

93
Id. at p.22.
94
State of Bihar v. J.A.C.Saldanha, (1980)1 SCC 554; Abhinandan Jha v. Dinesh
Mishra, A.I.R. 1968 SC 117; Nirmaljeet Singh Hoon v. The State of West Bengal &
Others, A.I.R. 1972 SC 2639; State of Maharahtra v. Natwarlal Damodardas Soni,
A.I.R.1980 SC 593.
95
Section 156 of the Code deals with the power of the police officers to investigate
cognizable cases.
96
This section deals with the procedure for investigation.
97
This section state the power of the magistrate to direct an investigation.

115
proceeds in compliance with the provisions of law relating to
investigation.98

As per the scheme of the Code, it is clear that interference of

any sort in the investigation is not permitted irrespective of source
from where it comes. The executive also cannot give directions to
the police as to how they have to conduct an investigation. Lord
Denning best described the power of the accusatorial police in R v.
Metropolitan Police Commissioner.99 It reads:
…in all these things he is not the servant of
anyone save of the law itself. No minister of
the Crown can tell him that he must or must
not, keep observation on this place or that, or
that he must or must not, prosecute this man
or that one. Nor can any police authority tell
him so. The responsibility for law
enforcement lies on him. He is answerable to
the law and to the law alone.100

Police enjoy absolute freedom in the law enforcement matter

without any interference from the government or from the judiciary.
The Supreme Court in Nirmaljeet Singh Hoon v. State of West
Bengal 101 observed:
The police authorities have under sections 154
and 156 of the Code a statutory right to
investigate into cognizable offence without
requiring any sanction from a judicial
authority, and even the High Court has no
inherent power under sec.561 A of the Code
to interfere with the exercise of that statutory
power.102

98
Supra n.84
99
[1968]1 All. E. R. 763.
100
Id. at p.769.
101
A.I.R.1972 SC 2639.
102
Id. at p.2650.

116
 Statutes provide absolute freedom in conducting
investigation and are beyond control so long as they are within the
powers granted. Proper use of the power could not be subjected to
supervision and control from any external force including the court.
So long as the powers are used with in the circumscribed limits of
law, the police officials are made immune from criminal and civil
liability.

To complete the investigation successfully it is better that the

same officer who started the investigation shall be allowed to
complete the same. Any undue interference in this regard from any
quarters including court will topsy-turvy the entire process. In
Divine Retreat Centre v. State of Kerala103, the Supreme Court
considered the same question and observed:
High Court cannot in the exercise of its
inherent jurisdiction change the investigating
officer in the midstream and appoint any
agency of its own choice to investigate into
the crime on whatsoever basis and more
particularly on the basis of complaints or
anonymous petition addressed to a named
judge.… Neither are the accused nor the
complainant or informant entitled to choose
their own agency to investigate a crime in
which they may be interested.104

So, once the investigation is started and there is no complaint

against the investigating officer, court cannot interfere in the
process by changing the officer.

103
(2008) 3 SCC 542. In this case the High Court on a letter written by one person,
registered a case against the appellant and after changing the investigating officer
appointed a team under the leadership of o one Inspector General of Police to
investigate the matter. Appellant challenged the order of the High Court in the
Supreme Court.
104
Id. at p. 560-61

117
 The power granted to the police is a discretionary power.
Discretion occupies a special place in the administration of criminal
justice. It starts at the very inception of the criminal case and exists
till the filing of the final report. The police exercise discretion
whether to arrest or not, whether to investigate or not, and whether
to prosecute or not. The courts cannot overrule the exercise of
discretion unless there is a clear violation of law. In one case,
House of Lords observed that, ―police are not bound in all
circumstances to act every time there is a breach of law‖.105
Therefore, it is for them to exercise their discretion properly for the
utmost good of the society and for giving effect to the intention of
the Parliament appearing in and from the circumstances of the
relevant statutes.106 When the statutory provisions and case law are
analyzed, one could reach the conclusion that the authority of the
police is original, not delegated and is exercised at his own
discretion by virtue of his office. He is a ministerial officer
exercising statutory rights independently of contract.107 As far as
investigation and allied powers are concerned, police officer is
under no man or institution, but under the law alone. If the police
officer decides not to investigate an offence, or if the investigation
violates the basic rights of the common man, the court can
intervene. If the officer conducting the investigation is within the
realm of statutory provisions, nobody can question the procedure or
his authority. Be it so, his powers are unfettered and
unquestionable.

105
R v. Chief Constable of the Devon and Cornwall Constabulary, ex p. Central
Electricity Generating Board. [1981]3 All.E.R.826 at p. 839.
106
R. v. Metropolitan Police Commissioner, [1968]1 All.E.R. 763 at p.764.
107
Attorney- General for New South Wales v. Perpetual Trustee Company, (1955) A.C.
477 at p. 489

118
The Abuse of Power
The criminal justice system is very keen in protecting the
common man from abuses of police powers. The legislations
provide several mechanisms to protect the rights of accused/suspect
as well as ample powers to the police to contain criminal activities.
While using these powers police should respect the rights of the
common man and should not use the power to the prejudice of
them.108 If the police abuse their authority by not complying with
the dictates of law and if it is allowed any scrutiny, instead of ‗rule
of law‘ ‗police raj‘ will prevail. Hence, the police have to follow the
procedures prescribed in the law for the prevalence of ‗rule of law‘.
But, unfortunately, procedural violations by the law enforcement
agency are rampant in India. Mainly, in the following areas where
unfettered power is given to the police for the effective enforcement
of law, violations are quite common.

Arrest and Custody

Arrest is the beginning of imprisonment, which is recognized
as a necessary step in the administration of the criminal law. 109 The
exercise of the power of arrest is subjected to judicial scrutiny. The
code makes it obligatory for the police to produce the person
arrested without a warrant, before a judicial magistrate within 24
hours of the arrest.110 The police sometimes abuse their power of
arrest by taking persons into custody and keep them in custody
without a judicial order. Some times, they may not record the arrest.

108
Ram Lal Yadav v. State of U.P, 1989 Cri.L.J 1013 (FB). In this case the petitioner
filed an application u/s. 482 Cr.P.C. to quash the FIR and the investigation on the
basis of it and also to direct the opposite parties not to arrest the applicants in
pursuance of the FIR. The application was referred to the full bench.
109
Patrick Devlin, The Criminal Prosecution in England, Oxford University press,
London, 1960, p.67.
110
Cr.P.C. s. 57.

119
Since the person is not under arrest, he cannot claim the rights
available to the arrested persons. This may produce incalculable
harm to the reputation and self-esteem of the person. So, apart from
the power of arrest there should be sufficient reasons for the
111
exercise of the power. In Joginder Kumar v. state of U.P. court
observed:
There must be some reasonable justification
in the opinion of the officer effecting the
arrest that such arrest is necessary and
justified. Except in heinous offences, an arrest
must be avoided.112

At the same time arrest and detention is a necessary evil, to

protect the society from criminals and to ensure availability of the
accused for prosecuting for the offence he had committed. But,
enough safeguards are to be made to ensure that the recalcitrant
officers do not flout the law. The remedy is not denial of the power
but to make measures to avoid abuses.

If an arrest is not justified by legally acceptable grounds, it

will amount to an unlawful detention. Police have the burden of
proving that the arrest is justified by reference to the criteria laid
down by law and they had acted legally. Moreover, detention
resorted by police with out recording arrest for the convenience of
investigation should be discouraged. Though the Code specifically
mentioned when a police officer can arrest a person with or without
warrant, this is the area, which invites criticism from all walks of
life. This is for the reason that the police frequently abuses the
power of arrest, thereby violates the human rights of the common

111
A.I.R.1994 SC 1349.
112
Id. at p.1354

120
man. In the case of cognizable offence, arrest can be made without
warrant and in the case of non-cognizable offence, only with the
permission of the court. As pointed out earlier the indeterminacy
connected with the classification of offence into cognizable or non-
cognizable makes it open to abuse by a police officer. He could put
a cognizable offence along with a non-cognizable and effect arrest.

Every person arrested and detained in custody shall be

produced before the Magistrate within a period of twenty-four
hours.113 It is provided with a view to avoid violation of liberty of
the arrestee unnecessarily. Magistrate‘s authority is necessary to
keep the arrested person in custody for a period exceeding twenty-
four hours. All these provisions specifically deal with the
production of an ‗arrested‘ person before the Magistrate. The police
by illegal practices often flout the constitutional/statutory
guarantees. Often the police do not record arrest and the person
under "custody" is denied the benefit of these provisions. Most of
the arrests, in India, are ‗pretended arrests‘ resorted as a punishment
to the suspect to satisfy either a superior officer or a politician. Such
practices are adopted even to fish out evidence against the person.

The procedural formalities and the insistence on the

existence of specified conditions to effect an arrest are considered
as the rights of the arrestee. The police frequently violate these
rights. The right to be informed about the grounds of arrest, 114 right

113
Constitution of India, Article 22(2). Time for journey from the place of a rrest to
the court is excluded from the stipulated time.
114
Art.22(1), ―No person who is arrested shall be detained in custody without being
informed, as soon as may be, of the grounds for such arrest nor shall he be denied the
right to consult, and to be defended by, a legal practitioner of his choice‖. See also
In Re Madhu Limaye, A.I.R 1969 SC 1014.

121
to consult a lawyer,115 right to have some one informed about his
arrest,116 are not given due importance. In most of the times, arrest
will not be recorded and so neither the grounds of arrest are
informed, nor allowed to consult a lawyer, nor inform the arrest to
the relatives of the person taken into custody. Though the
Constitution guarantees these rights, due to abuse by the police it is
frequently denied.

These illegal practices are even now followed, because of the

excessive power granted to the police to arrest a person. The
attitude of the public may be pointed out as a factor, which compels
the police to effect arrest even in cases where it could be avoided.
Generally, the public demands immediate action from the police
and to arrest the culprits when some grave crime takes place. It
often exerts pressure on police to resort to arrest to satisfy the out
cry of the public. The people will be satisfied if someone is taken
into custody. This attitude encourages the police to take persons
into custody and keep them without any judicial scrutiny. Thus in
India the law and order and crime control becomes highly arrest
centred. Legal fight against the police illegality often becomes futile
and fails to control the behaviour of police. Whenever the relatives
of illegally detained person approaches the High Court with a

115
Ibid
116
Cr.P.C. sec.50A (1), ―Every police officer or other person making any arrest under
this Code shall forthwith give the information regarding such arrest and place where
the arrested person is being held to any of his friends , relatives or such other person
for the purpose of giving such information.
(2) The police officer shall inform the arrested person of his rights under sub-section
(1) as soon as he is brought to the police station. See also, Joginder Kumar v. State of
U.P, A.I.R 1994 SC 1349.

122
habeas corpus petition, the police either produce him before a
Magistrate or release him, in order to avoid further consequences.117

Hand cuffing and parading is another problem, which an

arrestee has to suffer. Handcuffing is held to be unwarranted and
violative of Article 21.118 Even now, the police, under the pretext of
extreme danger, resort to iron fetters, which is unreasonable and
arbitrary. Verbal abuses, indecent behaviour, using of third degree
methods during interrogation are part and parcel of police
performance that add fuel to fire.

Interrogation
Justice Jackson is right in saying that, ‗Questioning is an
indispensable instrumentality of justice‘.119 Due to this, sufficient
powers have been given to the police to question all persons who
are supposed to be acquainted with the case. But this power is
frequently abused by the police, there by violating the constitutional
and legal rights of the persons and the accused. The abuses in this
area are in three ways. Police will fabricate evidence by introducing
stock witnesses. Secondly, police will require the attendance of the

117
Poovan v. S.I of Police, Aroor, 1993 (1) KLT 454. One Babukuttan was taken into
custody by the SI of police Aroor at 1.30 p.m. on 22-01-1993 and locked him up in
the station. Several persons intervened and offered sureties, the respondent did not
pay any heed to that. On 01-02-1993 a habeas corpus petition was filed before the
High Court by the father of Babukuttan. The Government Pleader submitted that a
case against the detainee was registered on 01-02-93 and on finding that he was the
real culprit, he was arrested on the same day and produced before the JFMC-II
Cherthala and the court remanded him to judicial custody. It is also stated that, when
producing before the magistrate he did not make any complaint against the police.
118
President, Citizen for Democracy v. State of Assam, A.I.R 1996 SC 2193, In this case
Kuldip Nayyar, a journalist wrote a letter to the Supreme Court which was treated as
a petition under Article 32 of the Constitution of India. The provocation for writing
the letter was that he found seven TADA detenus put in one room in a hospital, hand
cuffed to their bed. The room had bars and was locked. A posse of police men was
posted outside with guns. The detenus have to pay for the medicine from their
pocket. See, Prem Shanker Shukla v. State of Delhi Administration, A.I.R 1980 SC
1535.
119
Ashcroft v. Tennessee, 332 U.S. 143 at p. 160 (1944).

123
persons at the police station and will keep them in custody. Physical
abuse is another area where police threaten or manhandle the
persons to obtain evidence.120

The criminal justice system insists that the interrogation

must be fair and not oppressive and the answers must be voluntary
and not induced. The present Indian situation reveals a pathetic
condition of the custodial interrogation. Custodial interrogation is
questioning by law enforcement officers after a person has been
taken into custody or otherwise deprived of his freedom of action in
any significant way. No provision in the Code or the Constitution
empowers the police officer to effect a custodial interrogation
without the prior sanction of the magistrate. The reason for this is
aptly recorded by Justice Warren in Miranda v. Arizona.121
According to him when the government seeks to punish an
individual it must produce the evidence against him by its own
independent labours, rather than by the expedient of compelling it
from the accused‘s mouth. Miranda glorifies the rule against self-
incrimination. If the police do not warn the accused about his right
to silence during investigation, the evidence obtained from him
have no value. Since this evidence is the fruit of the violation of the
accused right, it shall be excluded from considering at the time of
trial by the court. But the Miranda warning122 is not accepted fully

120
Bhagawan Singh v. State of Punjab, A.I.R. 1992 SC 1689. In this case the ASI and
three constables went to a hotel and taken into custody some persons, brought them
to Rambagh police station and interrogated them about the smuggled narcotic
powder. They were kept in custody for three days and employed third degree
methods on them. After three days they were dropped near a by-pass road. One
person was unconscious and he was taken to hospital in car but, expired on the way.
Others got themselves treated. Court convicted all of them. Supreme Court dismissed
the appeal.
121
384 U.S.436
122
The ‗Miranda warning‘ as popularly known, states that, accused must be warned
prior to any questioning that he has the right to remain silent, that anything he says

124
in India except sections 24123 and 26124 of the Indian Evidence Act.
Though in India, the statement given to police officer is not
admissible in evidence, if any material object is collected in
consequence of the statement given by the deponent, that much of
the statement, which leads to the discovery, is admissible. This is
provided under section 27 of the Indian Evidence Act. But, the
section never insists that the passing of information must be
voluntary. In Paramjit Singh v. State of Punjab125 the Supreme
Court was confronted with a question whether the irregularities in
the investigation is material and whether it will nullify the trial
based on the erroneous investigation. Court observed:
This avoidable controversy need not detain us
any further since it is well settled that even a
default, if any, found in investigation,
however, serious has no direct bearing on the
competence or the procedure relating to the
cognizance or the trial. A defect or procedural
irregularity, if any, in investigation itself
cannot vitiate and nullify the trial based on
such erroneous investigation.126

Section 161 gives ample power to the police to interrogate

the persons who are acquainted with the facts and circumstances of
the case and such person shall be bound to answer truly all

can be used against him in a court of law. If such warnings are not given and if the
accused not waived his right, no evidence obtained as a result of interrogation can be
used against him. It deals with the nature of confession. If the confession is not
voluntary the confession as well as the consequent discoveries is inadmissible. But,
in India, the method adopted by the police in the collection of evidence will not
disqualify the evidence collected. Section 162 of the Code states that only compelled
testimony which incriminate the maker of the statement cannot be used in evidence.
123
Evidence Act s.24 deals with induced confession which is irrelevant in criminal
proceedings
124
S.26 deals with confession while in police custody which is not relevant in criminal
proceedings.
125
A.I.R. 2008 SC 441.
126
Id. at p. 446.

125
questions relating to such case except to those questions, which will
have a tendency to expose him to a criminal charge. In the case of
witnesses, they cannot evade from answering the questions, but,
while questioning, the accused can remain silent. The Constitution
clearly provides, as a fundamental principle that no person accused
of a crime shall be compelled to be a witness against himself.127 So,
the accused person may remain silent or may refuse to answer when
confronted with incriminating questions. In Nandini Satpathy court
had given three directions to the police to be complied at the time of
interrogation.128 The directions are i) if the accused person wants
the presence of his lawyer beside him when the police interrogate
him, this facility should be extended to him. But, police need not
wait for a long time for his arrival than reasonable. ii) The police
must warn the accused against self-incrimination and his right to
silence. This must be recorded in the case diary and if the accused is
literate take his written acknowledgement. iii) If the lawyer of the
accused is not present at the time of interrogation, the accused must
be taken to a magistrate or doctor or any other responsible non-
partisan official after the examination, who must ascertain whether
the accused suffered any duress, and must report all the
conversations to the magistrate. These directions ought to have
avoided to a large extent the abuses by the police during
interrogation. However, the court has not made these directions
mandatory, for the reasons best known to them only. 129 In Ram
Lalwani v. State130, the Delhi High Court ruled that the Supreme
Court had given a prudent policy for the police and not a binding

127
The Constitution of India, art. 20(3).
128
Supra n. 49.
129
Id. at pp. 268-269.
130
1981 Cri.L.J.97, 100 (Del.).

126
direction. In 1997, Supreme Court made the direction partly
mandatory when given instruction to police to permit the arrested to
meet his lawyer during interrogation.131 This right is given to
promote the observance of the right against self-incrimination.132

Though, the Constitution contains provisions against self-

incrimination, the evidence will never be excluded on that ground.
‗Fruits of the poisonous tree‘ is not that much poisonous in India, to
kill the evidence. Denials of the rights, using third degree methods,
fabrication of evidences are the fruits of the poisonous tree.
Insisting a women to appear at the police station for questioning,
arresting a women in the night without the aid of women police
officers, denial of the right to consult a lawyer/doctor, using third
degree methods to extract confession, fabricating evidences, long
protracted questioning, long illegal incommunicado custody are
certain means police resorted to achieve their object.

Using third degree method in the interrogation process is

against human rights133 and Constitutional norms.134 If it is allowed,

131
D.K.Basu v. State of West Bengal, (1997)6 SCC 642, instruction 10.
132
Nandini Sathpathy v P.L.Dani, (1978)2 SCC 424 at p. 455.
133
The Universal Declaration of Human Rights, article 5 provides that, ‗no one shall be
subjected to torture or to cruel, inhuman or degrading treatment‘. Similarly, Article 7
of the International Covenant on Civil and Political Rights states that, ―no one shall
be subjected to torture or cruel, inhuman or degrading treatment or punishment. In
particular, no one shall be subjected without his free consent to medical or scientific
experimentation.
134
Constitution of India, Article 21 the expression of personal liberty is interpreted to
protect the rights of the persons in police lock-ups. The Supreme Court evolved
principles through judicial process, which is identical to the provision in the
Universal Declaration of Human Rights. The earlier rule that the individual rights
can be sacrificed for public order [A.K.Gopalan v. State of Madras, AIR 1950 SC
27.] is corrected, after three decades in Maneka Gandhi v. Union of India, A.I.R.
1978 SC 597. Now, whatever procedure is adopted by the Government to infringe
the rights of the persons, it must be on the basis of a procedure which must be just,
fair and not arbitrary or oppressive. In order to avoid custodial torture Supreme
Court has given directions to the police in D.K. Basu v. State of West Bengal, (1997)
6 SCC 642. In Kishore Singh v. State of Rajasthan, A.I.R. 1981 SC 625. Court held

127
it will be an incentive for the law enforcers and they may not go in
hunting evidence but to resort, induced confessions and fabricated
evidences. Das Gupta, J. in the dissenting opinion in State of
Bombay v. Kathikalu Oghad135, observed:
It has been felt that the existence of such an
easy way would tend to dissuade persons in
charge of investigation or prosecution from
conducting diligent search for reliable
independent evidence and from sifting of
available materials with the care necessary for
ascertainment of truth.136

The main object of this rule is to put an end to the practice of

employing legal process to extract from a person‘s lips an
admission of his guilt. It employs mainly ―to stimulate the
prosecution to a full and fair search for evidence procurable by own
exertion and to deter them from a lazy and pernicious reliance upon
the accused‘s confession‖.137

The present arrangement in this regard in our system is a

compromise between two conflicting ideals. One is that no citizen

that the use of third degree methods by the police is violative of article 21. see also
Rama Murthy v. State of Karnataka, A.I.R. 1997 SC 1739; Khedat Mazdoor Chetna
Sangath v. State of M.P., A.I.R. 1995 SC 31; Munna v. State of U.P., A.I.R. 1982 SC
806.
135
(1962)3 SCR 10. The respondent along with another person charged for murder. Trial
court convicted him. The identification of the accused was the most important
question in the trial. One of the evidence was the alleged hand writing of the
accused. In order to prove this police had obtained three specimen writings in three
separate sheets of paper during the investigation. Expert compared the hand writings
and opined that all the writings are of the same person. The specimen writings were
obtained from the accused while he was in police custody. Plea of the accused was
that he was forced to give those writings and it was a compelled testimony. High
Court accepted the contention and acquitted the accused. Supreme Court held that
there is no infringement of Article 20(3) in compelling an accused person to give his
specimen signature or hand writing or impression of his thumb, finger, palm or foot
to the investigating officer or under order of a court for the purpose of comparison.
Even then the court denounced the short-cut adopted by the police.
136
Id. at p. 43.
137
Fred E.Inbau, ―Self-Incrimination – What Can an Accused Person be compelled to
Do‖, 89 J.Crim.L, C & P.S. 1329, 1331 (1998-99).

128
shall be compelled by the authority to provide evidence against him
in a criminal case. The other one is that the authority shall not be
prevented from its important function of detecting criminals and
proving their guilt.138

This principle acts as a safeguard against improper and

illegal police procedures. It is inhuman to force a person to make
evidence against him and for which police is abusing their authority
and to make a challenge against the constitutional norms.
Mackenna, J. declared that:
Even if I could be sure that all or nearly all,
the questioned persons would be guilty, I
would still withhold these powers on the
ground of cruelty. For I think it cruel to
compel a man to choose between confessing
his guilt, committing perjury or standing mute
and suffering whatever penalties you care to
attach to his silence. To avoid such cruelty is
in my eyes, one mark of a civilized
community.139

The right to consult a lawyer140 is a constitutional claim in

India. The purpose of this right is two fold, viz., to avoid self-
incrimination141 and to defend the case properly. The arrestee can
claim this right both at the pre-trial and trial stage. If the lawyers‘
presence is admitted in the pre-trial stage, to a certain extent we can
avoid the using of third degree methods in the interrogation process.
If it is not allowed or if the arrestee does not want to exercise his
right, then the only way to ascertain the non-use of third degree

138
Mackenna, J., ―Police Interrogation‖, 120 New.L.J. 665 (1970).
139
Id.at p.667.
140
Constitution of India, Art. 22(1), ―…nor shall he be denied the right to consult and to
be defended by, a legal practitioner of his choice‖.
141
Nandini Sathpathy v P.L.Dani, (1978)2 SCC 424 at p. 455.

129
methods during interrogation is to produce the person before an
independent authority. This is exactly the reason why Krishna Iyer,
J. directed the police to take the accused after the examination, to a
Magistrate, doctor or other willing and responsible official. This
will enable the detainee to tell such official without fearing the
police, whether he suffered any duress from the police.142

The doctrine of presumption of innocence is the basis of

Indian criminal justice system. The Constitution of India guarantees
the right against self-incrimination.143 This is in tune with the right
guaranteed to a suspect/accused under the International Covenant of
Civil and Political Rights.144 Various statutory provision are also in
existence which aims at reducing/eliminating custodial violence and
ill-treatment to elicit confession from an accused.145 The law makes
inadmissible various forms of confession or testimony. What is
prohibited is compelled testimony. Compulsion may take in
different form. The accused could be beaten up or starved or he
could be promised some advantage if confessed.146 The right
against self-incrimination is widely violated by the police in India.
Once taken into custody, police considers even an innocent person a

142
Id. at p. 457.
143
Constitution of India, Art. 20(3), ―No person accused of any offence shall be
compelled to be a witness against himself‖.
144
International Covenant of Civil and Political Rights, Article 14(2).
145
Indian Evidence Act ss. 24, 26 and 27, Code of Criminal Procedure ss. 162, 163(1)
and 315
146
Yusufalli v. State of Maharashtra, A.I.R 1968 SC 150. In this case the appellant tried
to bribe the clerk of the Bombay Municipal Corporation for not executing the
warrant against the appellant. A trap was laid and the appellant was caught red-
handed.

130
criminal and every technique of torture will be employed to extract
confession147.

Search
Search though allowed by law as an inevitable step in the
process of investigation it is circumscribed by specific requirements
to be satisfied before the exercise of that power. The search shall be
attended by two independent and respectable inhabitants of the
locality.148 The occupant of the place of search or his
representatives shall be permitted to attend the search.149 Whenever
things are seized in the course of search, a list shall be prepared by
the officer conducting the search and shall be signed by the
witnesses.150 A copy of the list shall be given to the occupant of the
premises or to his nominee. If the search is conducted without
warrant, the police officer before proceeding to the search must
record the grounds of his belief as to the necessity of the search and
must specify the article for which the search is to be conducted.
Search should not be a ‗fishing expedition‘ to find out a ground to
make evidence against a person. The police officer conducting the
search may manipulate the records so as to make the occupant
answerable to a charge. In the place of independent and respectable
witnesses police may plant stock witnesses who could support them
in the trial. Such practices undoubtedly compromise the insistence
of the law and works against the interest of the accused. For
instance in Hazara Singh v. State of Punjab,151 Supreme Court

147
R.S.Saini, ―Custodial Torture in Law and Practice with Reference to India‖, 36(2)
JILI 166 (1994) at p.177.
148
Cr.P.C. s.100 (4)
149
Ibid s.100(6)
150
Ibid.s.100(5)
151
(1971)1 SCC 529. In this case the appellant and five others were tried under sections
148,307 IPC and 25 Indian Arms Act, for being members of an unlawful assembly

131
refused to uphold the conviction of the accused on the ground that
the recovery witnesses in the case was not independent. The court
ruled that recovery witness who has been joining in the police raids
and had been appearing, as witness for the police for the last fifteen
years cannot be treated as an independent witness.

The prerequisites for the exercise of power of search are the

safeguard of a citizens‘ ‗fundamental right of privacy‘. Since the
search being an intrusion into the privacy of a person the law
requires that it is to be done only if highly essential for the
administration of justice. This is being guaranteed by insisting that
to do a search there shall be an authorisation from a judicial officer
in the form of a search warrant. While issuing a warrant an
impartial judicial officer will stand in between police and the
citizen. The request of the police for a search warrant will be
scrutinised by the judicial officer and he will deny it in cases where
there is no legally admitted grounds for justifying search. However,
in cases of emergency, the police could by-pass the magistrate.152
After the search without warrant the police have to file before the
magistrate the details of the search conducted along with the
reasons for emergency search and the list of the names of
respectable witnesses who are attended the search. This requirement

and in prosecution of their common object of attempt to commit murder the police
party. The appellants were proceeding to Pakistan to smuggle cardamom. They were
armed with weapons and when challenged by the police party, they fired shots from
their weapon at the police party. They were convicted. High Court upheld the
conviction. Supreme Court reversed the conviction and sentence.
152
Cr.P.C. s.165. This section states that a police officer in charge of a police station or
other police officer authorized to investigate the case can only exercise this power.
If such officer is unable to conduct search in person he can direct his subordinate
officer to conduct the search. The search must be for a particular thing or document
necessary for the purpose of the investigation. It should not be a general search. The
police must have reasonable grounds to believe that any specific thing necessary for
the investigation can be found from the place and it cannot be obtained otherwise
without undue delay

132
is to be complied within a short period after the search. Needless to
say, this enables judicial scrutiny in the matter as early as possible.

Fabrication of Evidence and Non-registration of cases

Investigating agency is very much interested in the outcome
of the case. Their efficiency is very often judged by the result of the
prosecution. This puts the investigating agency under pressure and
they are forced to seek all measures to secure a conviction. This
often drives the investigating agency to resort to illegal means and
forge evidence to secure conviction. If the case is having communal
or political overtones, where by the pressure on police is very
heavy, this tendency becomes common.

Non-registration of cases by the police constitutes one of the

most serious forms of violation of human right. In order to show
that the criminal activities are under control, the reported crimes
may not be registered so as to reduce the total number of crimes
during a period. Corruption is another reason for the non-
registration of cases. In order to register a case and to conduct
investigation, the party should give bribe to the police. Another
reason is the heavy workload of the police. They may not give
importance to complaints, which are not so serious.

Non-registration of complaints is dereliction of duty, which

is very serious since it is a negation of the rights of persons. This
attitude will have an impact on the efficiency of police. In such a
scenario, can we expect the police to maintain law and order
properly? The courts are denouncing such situations seriously. The
Supreme Court observed that, if it continues, the rule of law
principle will proves to be one-way traffic for the police and will be

133
against the people.153 In Vishnu v. State of Maharashtra154, where
the SI of police did not register the FIR in a rape case, Supreme
Court observed:
…but we are shocked to note that in a
grievous offence like rape being reported to
the police, the police officer concerned
did not register the case despite the fact that
the prosecutrix had categorically stated that
the accused had forcible sexual intercourse
with her which no doubt would lead to the
losing of confidence of the public in the
police establishment.155

The police are accused of evil motives on refusing to register

a case. In such situations, there are other ways to compel the police
to register a case.156 The Supreme Court solved this problem saying
that, ―the provisions of the Code do not, in any way stand in the
way of a magistrate to direct the police to register a case at the

153
Niranjan Singh v. Prabhakar Rajaram Kharote, A.I.R 1980 SC 785. The accused in
this case, 2 Sub-Inspectors and eight constables of the city police station, Ahmed
Nagar, pursuant to a conspiracy stopped the brother of the complainant, who was on
his way to Shirdi. He was caught and removed from the truck, tied with rope to a tree
nearby, and shot dead. No action was taken against the accused by the State
Government. The a private complaint was filed and after taking oral evidence of
witnesses, the court issued non-billable warrants against the accused. The accused‘s
contention was that, the victim was a criminal and he sustained injury in an
encounter. The Magistrate denied bail., but the sessions court granted bail and it was
affirmed by the High Court. Petitioner approached the Supreme Court. The Supreme
Court refused to upset the order of the lower court but, vehemently criticized the
lower courts and the Government.
154
2006 (1) SCC 283. In this case the prosecutrix was raped by the appellant. The
police was informed and the Sub-Inspector of police came to the hospital and
recorded the statements of the victim, mother and her brother. He made enquiry
about her age. He did not register a case because the age of the prosecutrix as per
the school record was more than sixteen years and she was a consenting party to
sex.
155
Id. at p. 286.
156
Cr.P.C, s. 154(3) states that if a police officer refused to register the complaint, the
complainant can send the complaint by post to the superintendent of police
concerned and as per section 200 Cr.P.C the aggrieved party can directly file the
complaint before the concerned Magistrate.

134
police station and then investigate into the same‖.157
Loosing public confidence in the police is not a good sign of rule of
law. People always look at police as a symbol of their safe living
and protector of rights. But, some scrupulous officials, abusing their
power inviting scathing criticism from all walk of life. This will
demoralize the police agency as a whole and will impair their
efficiency. Police have no discretionary power in registering a
cognizable case.158 Even if police have no territorial jurisdiction,
they shall record the complaint.159

Violation of Rights of Women

When the suspect happens to be a woman, she has to face
additional mode of torture like molestation, rape and indecent
behaviour from the police, while in custody. Arrest and custody of
women provide a chance to the police to abuse their power and
violate the rights of the women folk. The illegal custody of women
is uncivilized and should be deprecated in every sense. Because, the
illegal custody of woman not only pave way for some men in
uniform to satisfy their lust, but also against decency and integrity
of the society. Though safeguards are provided in the Code and
Constitution, the police flout most of them.160 The sad thing is that
the women police are also no exception to this and, sometimes they
assist the male members, violating the rights of the women. Arrest

157
Madhu Bala v. Suresh Kumar, A.I.R 1997 SC 3104.
158
Section 154 Cr.P.C.
159
State of A.P. v. Punati Ramulu, A.I.R 1993 SC 2644. It was a case of murder. PW1
went to Narsaropet police station to report the incident. When he reached there the
constable on duty informed him that the circle inspector had already received
information and had left for the village. The police constable at the station refused to
record the complaint presented by PW1 on the ground that the said police station had
no territorial jurisdiction over the place of crime.
160
Samata Vedike v. State of Karnataka, 2003 Cri.L.J 1003 (Kant.); Nandini Satpathi v.
P.L.Dani, (1978)2 SCC 424.

135
of women by male police officers and requiring the presence of
women in the police station are quite common in India.161

Taking Citizens Rights Lightly

Personal liberty is considered as the most cherished right
under the Constitution. Liberty not only means liberty from bodily
restraint but also include all those rights, which go to make up the
personal liberty of a man.162 When a person is arrested in violation
of the principles of natural justice, it is an arbitrary arrest. Arbitrary
and illegal arrest or custody is cruel and torture in custody is
uncivilized. Both will ‗kill‘ the rule of law. In Bhagawan Singh v.
State of Punjab,163 Supreme Court observed:
…If the custodians of law themselves indulge
in committing crimes, then no member of the
society is safe and secure. If police officers
who have to provide security and protection
to the citizens indulge in such methods, they
are creating a sense of insecurity in the minds
of the citizens. It is more heinous than a
gamekeeper becoming a poacher.164

Indian law provides certain rights to the suspects/accused

persons while in custody. These rights are absolute that no one can
violate them with impunity. Besides the Constitutional rights, the

161
Picheswara Rao v. S.I.of police, 1997 Cri.L.J 1145. In this case a man and his
daughter-in-law were taken to police station and detained there. Both were
interrogated in connection with a civil case filed against the petitioner and the
detained persons. Court observed that the police violated the rule that they should
not interfere in civil matters and also section 160 Cr.P.C.
162
Kharak Singh v. State of U.P, A.I.R 1963 SC 1295. The petitioner challenges the
constitutional validity of Chapter XX of the U.P. Police Regulation and the powers
conferred upon them by its several provisions on the ground that they violated the
rights guaranteed to citizens by article 19(1) (d) and 21 of the Indian Constitution.
Chapter XX gives power to prepare history-sheets and the personal records of
criminals under surveillance.
163
A.I.R 1992 SC 1689.
164
id.at p. 1693.

136
Indian Penal Code165, Code of Criminal Procedure166 and the Indian
Evidence Act167 carries certain rights, which the suspect/accused
can enjoy. Right to life and right against self-incrimination are more
important among them. The right to life cannot be deprived except
on a procedure established by law and that procedure must be ‗just,
fair and reasonable‘.168 Custodial torture is an offence.169 It deprives
person of the right to life, and is oppressive and arbitrary. One of
the motives of custodial torture is to extract confession from the
suspect. In Nandini Sathpati v. P.L.Dani,170 it was observed that if
there is any mode of pressure, subtle or crude, mental or physical,
direct or indirect, but, sufficiently substantial applied by the police
in obtaining information from the accused, it becomes compelled
testimony violative of the right against self incrimination. Judicial

165
IPC s.330 – voluntarily causing hurt to extort confession or to compel restoration of
property, and s.331 – voluntarily causing grievous hurt to extort confession, or to
compel restoration of property.
166
Cr.P.C s.50(1) – right to know the grounds of arrest. Section 50(2)- information
regarding right to be released on bail. Sections 56 and 76- right to be produced
before a magistrate without delay. Section 57- right of not being detained for more
than 24 hours without judicial scrutiny. Section 54- right to be examined by a
medical practitioner
167
Indian Evidence Act, ss.24 and 26 which deals with confession to a police officer
and confession while in police custody.
168
Maneka Gandhi v. Union of India, A.I.R 1978 SC 659. The passport of the petitioner
was impounded under section 10(3) (c) of the Passport Act, 1967, which empowered
the Government to do so in the public interest. The explanation of the Government
was that her presence was necessary before the Commissioner of Enquiry in
connection with various complaints against her. Petitioner challenged the validity of
the section. Court upheld the validity of the section, but, held that Article 21 required
a procedure established by law for depriving the persons right to personal liberty.
That procedure shall not be arbitrary, unfair and unreasonable.
169
Supra n.162.
170
A.I.R 1978 SC 1025. In this case the appellant was directed to appear at the
vigilance police station, Cuttak for interrogation in connection with a corruption case
filed against her. During the course of interrogation, she was given a long list of
questions in writing of which she refused to answer and claimed protection of
Art.20(3). On her refusal, she was prosecuted under section 179 IPC. Supreme
Court held that section 160(1) of Cr.P.C. barred calling of women to police station
for interrogation is violated in this case. Also stated that protection under Article
20(3) to remain silent while interrogation is available at the stage of police
investigation also.

137
scrutiny of the legality of arrest and detention at the earliest is the
very basis of our criminal trial. This is to put a limit on the police
power to arrest a person on flimsy grounds.

Right to be informed of the grounds of arrest and right to

consult a legal practitioner are also accepted as valuable rights by
the Constitution.171 These rights extend an opportunity to the
arrested person to apply for bail and also to make arrangements for
his defence. Generally, police denied these rights to the arrested
persons and torture them to procure evidence from him against
himself. This is violative of the constitutional spirit and the
democratic culture. Hence, the High Courts under article 226 and
the Supreme Court under article 32 taking measures not only to
protect the fundamental rights of the common man but also to
control the cops from acting ultravires to Constitution.

Human Rights Violations

Article 21 of the Constitution ensures that there shall be no
arbitrary denial of his life and liberty. If it is required it should be
done only in accordance with the procedure established by law.
After Maneka Gandhi,172 the procedure established by law must be
‗right, just and fair and not arbitrary, fanciful and oppressive‘173. If
the procedure is not just, fair, and reasonable it would be no
procedure at all. This shows that the right to personal liberty cannot
be curtailed even temporarily by a procedure, which is not
reasonable, just and fair174.

171
Constitution of India, art.22 (1).
172
A.I.R. 1978 SC 597.
173
Id. at p. 660.
174
State of Punjab v. Baldeo Singh, A.I.R 1999 SC 2378. The question in this case was
whether the compliance of section 50 of the NDPS Act is mandatory and if so, what

138
 All legal systems recognize that the police may have to use
force under certain circumstances. But, they have no authority to
inflict brutality on a person who is in his custody, ignoring the law
of the land. Human rights violations can be either personal abuse or
denial of procedural rights. Personal abuse includes both physical
and mental torture. Custodial torture is inhuman and against all
norms of our criminal justice system.175

The police in India practice illegal detention of woman

relatives and children of the accused or alleged absconding accused
as a means of forcing surrender of the accused.176 In this way,
innocent people including children are kept in custody by the
police. Another area of human rights violation usually occurs is the
arrest and detention of children especially street children. They are
ill treated and abused by the police. Caste driven violence is another
area of rights violations where police silently participated.177

Use of third degree methods by the police for extracting

information from a suspect is wide spread in India. No provision in
the criminal Acts which enables a police officer to inflict pain to the
suspects in order to make evidence against him. Moreover, adoption

is the effect of the breach. Section 50 deals with conditions under which the search
shall be conducted.
175
Supra n. 117.
176
SAHELI v. Commissioner of Police, Delhi, (1990)1 SCC 422.
177
There was allegation that the police participated in the Bombay and Gujarat riots.
The PUCL report to the National Human Rights Commission on the communal
violence in the State of Gujarat in 2002 states that, ―The police, who obviously have
received encouraging hints from the state government and the ruling party have
failed to maintain law and order, and have rather played an antinational and
unconstitutional role, becoming instrumental in destroying democracy and harmony
among people‖. www.pucl.org/Topics/Religion-communalism/2002/gujarat-nhrc-
submission dtd. 02-11-2008.
Justice Sreekrishna Commission on Mumbai communal riots taken place in 1993 as
an aftermath of babri masjid demolition specifically stated that, ―Mumbai police was
biased against Muslims and even helped Hindu mobs to attack Muslim houses‖.
en.wikipedia.org/wiki/Bombay_Riots dtd. 02-11-2008.

139
of extra legal methods in aid of investigation is prohibited because
it violates Article 21 of the Constitution178. It is very difficult to
prove the custodial torture since the policemen are in charge of
station records, which they can easily manipulate. Police employ
different tools of torture for creating terror in the mind of the
suspect. Death in police custody is one of the worst kinds of crimes
in a civilized society, governed by the rule of law. Torture in
custody flouts the basic rights of the citizens.179

‗Encounter killing‘ is a grave problem, which hits at the root

of our democracy. Some police officers, especially in northern
states, think that they born to kill and the khaki they wear authorize
them to kill and they go beyond law to keep order. Most of the
‗encounters‘ are fake encounters, where innocent, political
opponents, complainants against police, members of other castes,
terrorists and alleged criminals become prey for ‗cold-blooded
murder‘.180 Thus the police, who have to uphold the law, think
themselves above it and set a disturbing precedent for a nation that
claims to be civilized.

178
D.K.Basu v. State of West Bengal, A.I.R 1997 SC 610.
179
Solgabai Sunil Pawar v. State of Maharashtra, 1998 Cri.L.J 1505 at p. 1507-08. One
Sunil Pawar was arrested by the police in connection with a robbery case and
detained in custody. Next day, police informed his wife that Sunil committed suicide
in police custody by strangulating himself and asked her to take possession of the
dead body. She filed a petition before the Bombay High Court alleging that her
husband had died of third degree torture by the police. She prayed for compensation
and the court awarded compensation and asked the Government to realize the money
from the erring officials.
180
Ruhabbuddin Sheik v. State of Gujarat, A.I.R. 2007 SC 1914. The petitioner written
a letter to the Chief Justice of India about the killing of his brother Sohrabuddin
Sheik in a fake encounter and disappearance of his sister-in-law, Kausarbi at the
hands of the anti-terrorist squad (ATS) of Gujarat police and Rajasthan Special Task
Force (STF); Niranjan Singh v. Prabhakar Rajaram Kharote, A.I.R. 1980 SC 785.

140
Importance of Human Rights Protection
It can be said that the word ‗human‘ involves certain rights,
which are natural. Since these rights are not allotted to man by any
agency, no one can deny it to him. But at the same time, the state
has to protect every human being from oppressions and abuses.
Justice Cardozo in People v. Defore181 observed that:
The protection of the individual from
oppression and abuse by the police and other
enforcing officers is indeed a major interest in
a free society.182

Protection of the individual from oppression and abuse is the

essence of human rights protection. This involves several aspects.
First is the acceptance of rule of law. One of the fundamental
features of Indian government is the check-and–balance system
among its three branches, the executive, the legislature, and the
judiciary. This check-and-balance system is based and depends on
the doctrine of rule of law. The police decision-making is highly
influenced by the rule of law. The Code of Criminal procedure not
only gives ample power to the police, but also recognizes certain
rights and privileges of the suspect/accused. It controls the actions
of the police and defines the rights of the accused. Hence, the
agencies of investigation should make themselves subject to law
and every actions of it must be as per the law dictates. If it is in such
a way, then it will exclude arbitrariness or in the alternative, courts
can invoke the provisions of law and nullify the executive actions.

181
(1926)242 NY 13.
182
quoted in Joginder Kumar v. State, A.I.R 1994 SC 1349

141
In Chief settlement Commissioner, Punjab v. Om Prakash,183
Supreme Court observed that:
In our Constitutional system, the central and
most characteristic feature is the concept of
the rule of law which means, in the present
context, the authority of the law courts to test
all administrative action by the standard of
legality. The administrative or executive
action that doesn‘t meet the standard will be
set aside if the aggrieved person brings the
appropriate action in the competent court.184

Rule of law is a formal concept, which demands that the

exercise of power should be authorised by law. It also envisages
that individuals should be able to plan their lives on the basis of
clear, open and general laws. The principles of rule of law also
ensure fairness in all proceedings. Though every society expects
that criminal should be punished and innocent be spared, the
conviction and sentencing of the guilty should not be by adoption of
any means. The procedure adopted to declare that a person is
guilty, must be fair, just, and reasonable.

Amongst the procedures envisaged for the administration of

criminal law, the procedure for investigation is more important. It
encompasses arrest, interrogation, search, seizure and filing of final
report. There is a possibility of abuse of all these powers. The
attempt from all quarters is to reduce/eliminate the possibility of
abuse. This is evident in the international field also. For instance

183
A.I.R 1969 SC 33. In this case land was allotted to the respondents in lieu of the
land abandoned by them in Pakistan. On a complaint that they had allotted with
excess lands, the managing officer cancelled the allotment of a large portion of the
land allotted to them. They preferred appeal before the Asst. Settlement
Commissioner, but was rejected. High Court allowed the writ petition. Appeal came
to Supreme Court, which was dismissed.
184
Id. at p. 36.

142
Article 9 of the Universal Declaration of Human Rights, 1948,
stipulates that: ―No one shall be subjected to arbitrary arrest,
detention or exile‖. The concern to provide a fair deal to an accused
is again reflected in Article 11(1), which states that: ―Every one
charged with a penal offence has the right to be presumed innocent
until proved guilty according to law in a public trial at which he has
had all the guarantees necessary for his defence‖.

Third is to respect the person involved in the criminal

process. This means prohibition against measures that involve
torture, inhuman and degrading treatment or punishment.
International Convention against Torture prohibits torture, and
requires parties to take effective measures to prevent it in any
territory under its jurisdiction. This prohibition is absolute and
nothing can be invoked to justify torture. Torture can neither be
justified as a means to protect public safety nor can be justified by
orders of a superior officer.185 The thing, which prompts the
adoption of such a principle of law, is the presumption of
innocence. An accused is presumed to be innocent until guilt is
established by applying legal rules.186 The police should realize that
by virtue of being a suspect or an accused, one neither cease to be a
human being nor his rights are forfeited. They are entitled to enjoy
the rights, which are provided to them under the Indian Constitution
as well as other existing laws. Hence, the person and his rights are
to be respected.

185
International Convention Against Torture, article 2. http://en.wikipedia.org/wiki/
United_Nations_Convention_Against_Torture. dtd.02-11-2008.
186
B.B. Pandey, ―Human Rights and Criminal Justice Administration in India‖, in
K.I.Vibhute (edtd.) Criminal Justice; A Human Rights Perspective of the Criminal
Justice Process in India, Eastern Book Co., Luknow, 2004 at p. 104.

143
 Transparency in the actions of police is another important
aspect, which goes in a long way in protection of human rights.
Undue emphasis on the importance of the function of police and
their crucial role in enforcement of law should not result in ignoring
their lawlessness. The machinery of police is the creation of the
society for the good of the society. The society expects a more
efficient and law abiding police force. They expect transparency in
the actions of the police. Transparency in the work will increase the
accountability and efficiency.

In Search of Police
Police is responsible for the maintenance of peace and order
in society. Undoubtedly the police shall be given due importance.
Police force is inevitable in the modern society. In any democratic
system, police should have independence in their actions. In the
accusatorial system, the police is powerful and their authority is
original, not delegated and can exercise their own discretion by
virtue of their office.187 But the exercising of this authority, without
the supervision from any other quarter, paved the way for abuses
and consequently violation of human rights. The authority given to
the police is to perform their duty independently and efficiently and
without any interference. Every power possessed by the police,
everywhere, lent itself to abuse. But the past experience shows that
the uncontrollable power made this institution a worse one
provoked all peace loving persons to speak against the system.
Mulla, J. of the Allahabad High Court once observed:
There is no single lawless group in the whole
of the country whose record of crime comes
any where near the record of that organized

187
Attorney General NSW v. Perpetual Trustee Co. Ltd. [1955] AC 477.

144
 unit which is known as the Indian Police
Force.188

This observation made in the first half of the sixties shows

the horrible condition of the then police force in India. This is the
continuation of the colonial situation. The letter written by the
Government of W. Bengal in 1901to the Home department of the
Government of India is a narrative of the pathetic condition of the
police system that prevailed in those days. It reads:
In no branch of the administration in Bengal,
is improvement so imperatively required as in
the police. There is no part of our system of
government, is reform, in anything like the
same degree so urgently called for. The evil is
essentially in the investigating staff. It is
dishonest and it is tyrannical.189

The present situation is worse than this. What is needed now

is not improvement but complete revamping of the system. Police
system continues to be as corrupt and oppressive even in post
independent era. We are not an exception in this regard. The police
in U.S and U.K are also proved to be ineffective in protecting the
rights of citizens. The 1962 Royal Commission on Police in U.K.
found:
There was a body of evidence, too substantial
to disregard, which in effect accused the
police of stooping to the use of undesirable
means of obtaining statements and of
occasionally giving perjured evidence in a
court of law… The police sometimes use
guile, and offer inducements, in order to
obtain confessions in the belief that irregular

188
State of U.P. v. Mohammad Naim, [1964]2 S.C.R 363. Justice Mulla‘s observations
were quoted in this appeal, which is filed for expunging the observation.
189
Quoted in the Report of the Indian Police Commission, 1902-03, Govt. Central
Printing Office, Shimla, 1903, p.14.

145
 means of securing the conviction of a person
whom they believed to be guilty are
justifiable in the public interest and that
occasionally police officers colour, exaggerate
or even fabricate the evidence against an
accused person.190

Law enforcers very often disregard the law. The picture in

U.S. is in no way different. In U.S. illegalities during investigation
are quite common. Wiretapping, false arrest, using of third degree
methods and illegal search and seizure indicates the normal
divergence between theory and practice.191

Police rationalises their actions and considered himself or

herself justifiable in resorting to methods ignoring legal provisions
since they are dealing with ―criminals‖. Courts and the public often
share this feeling of police. This results in ignoring police
lawlessness as a routine matter and dismissing as one deserving no
special attention. But, continuing in such lawlessness in the process
of law enforcement will frustrate the very purpose of the
constitution of this institution. Moreover, the ‗rule of law‘ principle
will be sidelined by the law enforcement agency. Every case of
uncorrected and unredressed abuse of authority blemishes the
society, which establishes the law enforcement machinery. While
concerning the increase in crime, we should be concerned to ensure
that the rule of law is upheld in the criminal investigation
process.192

190
Royal Commission on the Police (G.B.), Final report, 1962 Cmnd. 1728, p.110,
quoted in M.D.Kirby ―Controls Over Investigation of Offences and Pre- Trial
Treatment of Suspects: Criminal Investigation and the Rule of Law‖, 53 A.L.J 626
(1979)
191
Editorial note, ―Judicial Control of Illegal Search and Seizure‖, 60 Yale.L.J. p.144
192
53 A.L.J. 626 at p.627.

146
 It is a common belief among the police officers that
‗policing‘ cannot be done according to the procedural rules, which
gives and limits the powers of police. Rules have been introduced
and gradually extended limiting police intrusion into citizens‘
privacy. This may take place in the form of interrogation, search,
seizure or arrest. The principle, ‗presumption of innocence‘ not only
outlawed the torture of suspects but also extended to any kind of
inducement or coercion that undermines the voluntary character of
the confessional statement. The burden of proof is resting on the
prosecution and the standard of proof is beyond reasonable doubt.
All these rules of investigation have been enacted by the legislature
and developed by the courts to protect suspects from oppressive
treatment by the police.

The police in the United States are required to recite the

Miranda193 warning when suspects are arrested. Their counterpart
in England is obliged to recite the warnings in the Police and
Criminal Evidence Act.194 In India, they are obliged to conform to
the dictates of the law and the Court rules in D.K.Basu195 and
Nandini Sathpathy196 while arresting a person. So, it is for the
police to restrain themselves when arresting, questioning, searching
a suspect, from resorting into illegal methods. Instead, they have to
implement procedures designed to safeguard rights of the suspects.

193
(1966) 384 US 436.
194
On the basis of the report of the Royal Commission on Criminal Procedure, (Philips
Commission) Police and Criminal Evidence Act was passed in 1984 for regulating
police powers and the operation of suspects‘ rights.
195
(1997)1 SCC 416.
196
(1978)2 SCC 424.

147
Conclusion
The Indian executive virtually used the police to attain their
objective and they became a tool in the hands of the politicians to
oppress the political opponents. This is why even after fifty long
years of independence; the Indian police could not win public
confidence and enhance their capability in enforcing the law.

A police force cannot be effective in the control and

investigation of the crime, if it is made a tool for all police functions
of the State. The police force in India is usually entrusted with the
work of traffic regulation, VIP security, maintenance of order and
other civil duties and most of their time is devoted to other works.
These duties to a certain extent need no special skill and hence, it
will have an adverse impact on their work performance. Crime
control and investigatory function need special skill, intelligence
and impartiality. When the police are used for other purposes, they
may not get sufficient time to involve in the investigation of a
crime. So, it is high time to have a special organization for
investigation with professional command and control.

Police are burdened with various duties and functions, which

ultimately create a dispassionate attitude in the police to everything.
They may consider crime control and investigatory function in par
with other duties, and no adequate importance will be given to these
functions.

From the discussions, we can conclude that two contrary

influences are on the police in the accusatorial system. One is the
growing demand for civil rights protection and secondly, the need
to be responsive to all sections of the population. A great task, no
doubt. So the State shall take measures to reform the police system
to achieve desirable goals.

148