What an investigating officer should not forget

The primary function of the Police Department is to maintain law and order in society as well as to ensure the safety of the general public. In order to achieve the said objective, the power of investigation of crime and offences has been provided to them. The term investigation is defined under Section 2(h) of the Code of Criminal Procedure. The investigation, basically, has two primary ingredients:

• It must be in the form of a process, and not merely one such act of recording a complaint.
• It should focus on the collection of evidence.

The power of investigation is not only a power but also a responsibility and a strong means to achieve the ends of justice. The powers give policemen a free hand without any interference from any external sources. Therefore, it is crucial that when the Statute gives power to any institution or department to carry out their prescribed functions, the institution exercising those powers is morally, ethically and humanely duty-bound to exercise those powers in an independent, unbiased and non-partisan manner. Being in an advantageous position by default should not give anyone the license to misuse, abuse, browbeat, blackmail others using those powers and if one does so, it is diametrically opposite to the spirit of his oath of office.

The Hon’ble Supreme Court of India, in the famous case of Lalita Kumari vs State of UP in Writ Petition Criminal 68/2008, held that Registration of FIR is mandatory under section 154 CrPC, if it discloses a cognizable offence. But, the sad reality is that people are still made to run from pillar to post for registration of a complaint, and request the officers with folded hands as if complainant himself were the accused. Most of the times, the tone, tenor and body language of the police is aloof, negative, arrogant, snooty and not unto the mark. It is nobody’s duty to remind them that the salary they get is from taxpayers' money and they are not doing any charity in accepting a complaint. If the learned Magistrate, under same facts and cause of action, can direct them to register it under 156(3) CrPC, then why can’t the police officers accept and register it from the inception.

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Sometimes, they also ask bizarre questions regarding the collection of evidence to the complaint, forgetting that it is their duty to do so. It is their duty to completely put in their wholehearted effort and collect clinching evidence and make a watertight charge sheet if the offence is made out. Witnesses must not be chosen deliberately as per their whims and fancy, or in such a way that they are remotely connected with the case and ultimately fail the prosecution case in trial. They have to record the statements of witnesses under 161 CrPC which has no evidentiary value and which is only for contradiction and corroboration. The primary reason behind this logic is that the draftsmen doubted the conduct of police officers and believed that they may abuse, threaten, coerce or use any means including third degree, to extract false statements and confessions, by misusing their power. They can choose the manner and mode of investigation, which they still do. Therefore, the language of Section 25 and Section 26 of the Indian Evidence Act also speaks about the inadmissibility of statements before police given in custody or otherwise. The practice of avoiding notice under 160 CrPC and summoning witnesses on phone calls is still prevalent to a great extent. The statement before a magistrate which has a greater evidentiary value is least resorted to and still, a  "pick and choose" policy is continuing.

Crucial witnesses are not taken to Magistrates in many cases, where their evidence is crucial in the trial. Many times during interrogation, which no doubt is their prerogative, the same question is asked 20 times, just to harass the probable accused. It is high time the interrogation must be videotaped and kept in a sealed cover and, in case the accused complaints of inhumane treatment affecting his dignity, he can always use it as evidence in future. The Practice of harassing innocent people only to satisfy their ego or political masters must stop completely. They have a duty towards the public, not towards any particular Government. Many a times, they take false statements of witness and later on, the character of a witness is doubted when they turn hostile. Similarly, when they don’t take 164 statements of a crucial witness, the accused is deprived of using them at the stage of arguments on charge.

If the Court takes into consideration 164 Statements for framing of charges, not taking 164 statements, prevents the accused from a probable discharge, if the statements before the Magistrate would have favoured him and while doing so, he could be saved from the rigours of the trial and also save the valuable time of the Honorable Court.

The power that comes with the responsibility, has to be judiciously exercised, particularly when the stakes of the parties involved are high. So, an investigation must only focus on extracting the truth and real facts without harassing any party till the filing of closure report or charge sheet. There is an old saying that, "Respect is always commanded, never demanded." The respect one gets is directly correlated with one’s conduct. At the hour of crisis, we all must remember that the policemen working day and night in fighting the COVID 19 situation, are risking their lives. One must salute their bravery and selflessness. If they exercise the same bravery during an investigation, they can regain the public faith which has diminished, if not lost.

The author, Sarthak Nayak, is a practising litigation lawyer in the Supreme Court of India and has done his Masters in International Trade and Commercial Law from the University of Durham ( UK ). 

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