This recent judgment of Madras HC (when do they plan to change the name to Chennai HC (?)) throws light on provisions of CrPC 160 under which police can call witnesses for investigation for any crime.
CrPC 160 is reproduced below:
Section 160 – Police Officer’s power to require attendance of witnesses
1. Any police officer making an investigation under this Chapter may, by order in writing, require the attendance before himself of any person being within the limits of his own or any adjoining station who, from the information given or otherwise, appears to be acquainted with the facts and circumstances of the case; and such person shall attend as so required:
Provided that no male person under the age of fifteen years or above the age of sixty-five years or a woman or a mentally or physically disabled person1 shall be required to attend at any place other than the place in which such male person or woman resides.
2. The State Government may, by rules made in this behalf, provide for the payment by the police officer of the reasonable expenses of every person, attending under Sub-Section (1) at any place other than his residence.
Note that the first para says clearly that police officer can call witnesses (including accused) for investigation only “by order in writing”. Most of the lawyer community has failed to educate public on this part, and one can only speculate whether it’s conflict of interest (read as: more anticipatory bail applications), or sheer laziness; neither of which is too flattering a reason.
This judgment specifically addresses the issue of harassment by police during investigation, and the operative part of judgment is given below:
5.In order to circumvent such situations, the following guidelines are issued:
a)While summoning any persons named in the complaint or any witness to the incident complained of, the police officer shall summon such persons through a written summon under Section 160 Cr.P.C., specifying a particular date and time for appearing before them for such an enquiry/investigation.b)The minutes of the enquiry shall be recorded in the general diary/station diary/daily diary of the police station.
c)The police officer shall refrain himself or herself from harassing persons called upon for enquiry/investigation.
d)The guidelines stipulated for preliminary enquiry or registration of FIR by the Hon'ble Supreme Court in Lalita Kumari Vs. Government of Uttar Pradesh and others [2014 (2) SCC (1)] shall be strictly adhered to.
So the judgment clarifies that not only the police officer has to summon via a written summon, but that summon should also specify a particular date and time for appearing in front of police. That should tell people that all this chit-chat where someone from PS calls on your phone to ask to pay them a visit for enquiry/investigation/talk etc, is just plain illegal as far as adherence to CrPC is concerned. The only legal way is via a written summons mentioning particular date and time (note: emails can also be taken as written notice).
Also note that minutes of this enquiry have to be mandatorily noted in the general diary/station diary/daily diary of PS, which means again that the verbal chit-chat police people in PS like to engage with accused under matrimonial cases, without keeping written records, is also not legal. All those probably happen with no entry about visit, or enquiry records anywhere.
Now logically, such clarifications should lead to rapid dissemination of this correct practice among police and general public alike, but probably since public seems to learn about police procedures from what is shown in movies than by reading law, and tend to disbelieve written statute in favour of what is “public wisdom”, it’s anybody’s guess how many years it might take before this becomes standard practice all over India.
Lalita Kumari Vs. Government of Uttar Pradesh and others judgment is quite important on aspects related to FIR registration etc, and will be covered in another post.
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Full judgment text below:
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IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 11.12.2017
CORAM:
THE HONOURABLE MR. JUSTICE M.S.RAMESH
Crl.O.P.No.27191 of 2017
P.R. Ramasamy .. Petitioner
Vs.
1. State, rep. by
The Deputy Commissioner of Police,
Mylapore Range,
Mylapore,
Chennai-600 004.
2.The Inspector of Police,
Mylapore Police Station,
Mylapore,
Chennai-600 004. .. Respondents
PRAYER: Criminal Original Petition filed under Section 482 Cr.P.C. praying to direct the respondents police not to harass the petitioner and her family members based on the petitioner's representation dated 04.12.2017 under the guise of enquiry.
For Petitioner : Mr.R.Vivekananthan
For Respondents : Mr.C. Iyyappa Raj
Additional Public Prosecutor.
ORDER
It is the grievance of the petitioner that the respondent police have been harassing him under the guise of an enquiry/investigation and hence, has invoked the inherent powers of this Court under Section 482 of Cr.P.C.
2.An enquiry into a non cognizable offence or a cognizable offence is the unfettered powers of the Investigation Officers so long as the power to investigate/enquire into these offences are legitimately exercised within the frame work of Chapter XII of the Code of Criminal Procedure. Though the Code of Criminal Procedure empowers the Magistrate to be a guardian in all the stages of the police investigation, there is no power envisaging him to interfere with the actual investigation or the mode of investigation. It is in this background that numerous petitions complaining of harassment are being reported and filed before this Court seeking for directions to refrain the police officials from harassing the persons named in a complaint.
3.This Court, exercising its power under Section 482 of the Criminal Procedure Code normally would not interfere with the investigation conducted by a police officer. Nevertheless, it would also not turn a blind eye to instances of harassment by the police under the guise of investigation is brought to its notice.
4.In the present case in hand, the petitioner has complained of harassment by the police based on a complaint and seeks for this Court's intervention by way of a direction. The term 'harassment' by itself has a very wide meaning and hence, what could be harassment to the petitioner may not be the same to the police officer.
5.In order to circumvent such situations, the following guidelines are issued:
a)While summoning any persons named in the complaint or any witness to the incident complained of, the police officer shall summon such persons through a written summon under Section 160 Cr.P.C., specifying a particular date and time for appearing before them for such an enquiry/investigation.
b)The minutes of the enquiry shall be recorded in the general diary/station diary/daily diary of the police station.
c)The police officer shall refrain himself or herself from harassing persons called upon for enquiry/investigation.
d)The guidelines stipulated for preliminary enquiry or registration of FIR by the Hon'ble Supreme Court in Lalita Kumari Vs. Government of Uttar Pradesh and others [2014 (2) SCC (1)] shall be strictly adhered to.
6.With the above observations and direction, the Criminal Original Petition stands allowed.
11.12.2017
Index:Yes/No
Internet : Yes/No
ak
To
1. The Deputy Commissioner of Police,
Mylapore Range,
Mylapore,
Chennai-600 004.
2.The Inspector of Police,
Mylapore Police Station,
Mylapore,
Chennai-600 004.
3.The Public Prosecutor,
High Court, Madras.
M.S.RAMESH.J,
ak
Crl.O.P.No.27191 of 2017
11.12.2017