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
Can a reply or the notary attested statement be sent to police via speed post or on mail under 160 cprc as the travel distance is 400 km away and is a diffrent state . Secondly if a person is not medical well can he send the statement to police via mail.
I have been accused of under section 420,406 and 506 by a firm owner and have been sent a notice by the police to appear within 5 days of receiving the notice at illambazar which is 300 km away from my house.The notice doesn’t contain any official stamp.what am I supposed to do now.
Call the police to confirm that the notice is genuine or not. Without seal/stamp, one can’t be sure.
I have been falsely accused of under section 498A,406 and 506 by my wife and have been sent a notice by the police to appear before the SI at the Park Street police station for questioning under sub section 1 of 41A CrPC. What am I supposed to do now.
Follow the process as per CrPC 41 and other sections. Being falsely accused doesn’t mean one can get a blanket exception from legal procedures.
I received a notice u/s 91 crpc by police wants me to present to the police station but I don’t know about details of crime or about what is the matter.pls tell me what I do.
CrPC 91 notice can be sent by court or by police station incharge. Read bare act here:
https://devgan.in/crpc/index.php?q=91&a=2
CrPC 91 notice is sent for production of a document or thing, which doesn’t mean you are accused of any crime. If they haven’t mentioned anything in the notice, then you can send them written reply asking for what exactly do they need. Or call on the number given on notice to ask the same. As per sub-section (2), if they only need a document/thing from you then that document/thing can be sent to them instead of personal appearance.
I want a suggestion, in Feb 2 head constable from Sonipat Haryana police station comes with a man who said that my friend done fraud with him,
Actually the matter is, we are wholesalers of products like shoes and garments.
One man who us mediator,give us order and transfer money for dispatching order at Sonipat City,we handover his order with his guys and that order reached at Sonipat at actual owner.but he came with head constable and said he didn’t receive anything and give my money back.
They give us a like a notice in which section wrongly mentioned, address of police station also wrongly mentioned, and no stamp no signature .
They said to my friend whenever you reach at infront of police station,don’t came inside, just call us we will settle outside.
Every 2-3 days after they call us and threaten, we didn’t understand what will do , because we cross checked there were no complaint or fir registered against my friend.
Any one can give suggestions
Get info on that head constable etc. Try to get audio/video recording if possible but without raising suspicion. Send complaint by speed post to city police chief.
Even if delivery is not done etc, most of the times it can only be a civil case, not criminal. The notice they are showing is fake.
Hello!!
My case in 498/34/406 has reached court and the first date is coming up. Wife’s side now wants compromise. Initially they were demanding 50 lakhs and now they have come to 15 lakhs. I have also filed a case against them for physical assualt to my mom.
I don’t want to compromise and will fight her till I live. But police, lawyer, society everyone is saying that I should start afresh and let her go. Some money has to be given to the girl sooner or later. So why not give today and let her go.
Sometimes I loose my resolve to fight but then I remember how much pain she has caused me.
Is it correct that some money has to be given? Is it of no use to fight against the injustice? Even if I am able to prove that I am innocent what will I gain?
I just don’t want her to set an example if there is an issue no matter how petty, just file a case and demand Money and get divorced.
I want to prolong this case and eventually come out clean.
I am talking stupid or is my approach right?
>>But police, lawyer, society everyone is saying
Police is conflicted… remember it’s the same police which files charge-sheet in all 498A/406 cases, till few years back used to arrest everyone on mere complaint, and are able to have very low conviction rate after trial. They are not even competent to give advice.
Same goes for any lawyer who says that. They have forgotten ABC of law criminal law in fact, and resemble deal-makers actually – because the same lawyers would have suggested had a wife come to them to file such false criminal and DV cases, assuring her of a sweet alimony deal and MCD coming her way soon enough!
As regards society, most of such people who advise to “pay and move on” are basically in a survivor-prisoner mindset, and for them surviving and reproducing are the ultimate goals to aim for in life (animals can also do the same!), beyond which they can’t aspire themselves, and probably feel inferior if they see someone else doing what they can never do themselves: FIGHT injustice!
>>I am talking stupid or is my approach right?
Right approach, that’s the whole point of this site.
yesterday i have received a call from SI DELHI, he was asking my bro, my mother and sister in laws IDs and present me to before him. i am on bail from session court. should i go there or not….
plz suggest me
Having knowledge is one part of the problem… You could have asked him about the matter for which you are being called. If it is for your statement or investigation, then CrPC 160 should apply, which written notice should be sent.
Apart from that, it all depends on how much willingness people have to enforce the law on police and similar agencies. It takes certain amount of guts, which are in really short supply. Or called person can go and if it is found to be frivolous, then at least he can later file a complaint to SP/CP etc. Our police esp in matrimonial matters likes to test people’s weakness/fear factor/psychology, and calling people over is the preferred way for them, so they don’t have to maintain or give out any written record either like CrPC 160 would entail.