“Investigation” refers to all the proceedings under CrPC conducted for the collection of evidence by a police officer or by any person (other than a magistrate) so authorised. An investigation generally begins after the lodging of a First Information Report (FIR). Investigation can involve the interrogation of accused and witnesses. In order to conduct the investigation, the investigating officer by presenting the accused in front of the magistrate can get the custody of the accused extended. The accused during the course of investigation, while in police custody, is at the risk of violation of the fundamental principles of liberty. There are issues of undue extension of custody, delay in providing bail and custodial torture in order to extract statements and confessions. The importance of rights of accused can be imputed from the fact that there is a separate Article in the Constitution itself prescribing it, as given under Articles 21 and 22. An accused has constitutional rights like the right to be informed of the grounds for arrest, not being compelled to be a witness against himself and to be produced before the magistrate within twenty four hours of arrest. However the ground reality is not even near to what is suggested. For example, the police routinely takes recourse to force and torture which in turn can’t be proved by the accused because such torture is committed in the four walls of the prison. The police resort to not showing the correct time of arrest so as to allow themselves more time to keep the accused in custody. There is also ample scope of judicial and police discretion under the crpc which denies fair opportunity to the accused.
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Violation of arrest guidelines
The very first stage of investigation which can adversely affect the liberty of an accused is the procedure regarding the arrest of such person. It is more important to keep a check on the arrest power of the police in cases of cognizable offences as in such cases the police can arrest without a warrant and also getting bail for the accused is more difficult than that in non-cognizable ones. Section 41 of CrPC provides for the conditions which need to be satisfied for a police officer to arrest without warrant in cases of cognizable offences punishable with seven or less years of punishment. The conditions specified in the section require not only that the police officer has reason to believe on the basis of the complaint, information that the accused has committed such offence but also that the police officer is satisfied that arrest is necessary for preventing or facilitating conditions specified in 41(b)(ii). These conditions include preventing such person from committing any further offence, for proper investigation, prevent tampering with evidence or threatening of witnesses and when unless arrest is made his/her presence in the court whenever required cannot be ensured. Any such requirement is not laid down under the section for offences punishable with imprisonment for more than seven years. This strengthens the assumption that such conditions are not merely directory or optional in nature. The Supreme Court has reiterated that the police officers shall not automatically arrest in cases under section 41(b). The courts have also issued some additional guidelines while criticizing the colonial attitude of police of arresting unnecessarily. It has been said that the violation of these guidelines would not only render the police liable under departmental proceedings but also for contempt of Court. Despite such guidelines it has been observed by the courts that the police officers mechanically produce the case diary stating one or the other reason for arresting without any rational application of investigative mind. Also the investigative officers do not adequately make use of their powers under section 41A which authorizes them to issue notice for appearance and instead arrest the accused without any necessity as per their convenience.
Self incrimination and custodial torture
After arrest a person can be subjected to a variety of methods to bring out information. There are numerous cases of custodial tortures and deaths. The chances of such torture or force being used increases in cases of information which is solely in the possession of the arrested person and which can’t be found through any other alternative means. Though torture in itself is ultra vires (in light of Article 21 of the Constitution) when such torture is used to elicit personal/private information from the individual such as the password of a phone or a laptop (to be used against himself/herself) it violates two other very fundamental guarantees of the Constitution. The eliciting of such information is violative of Article 20(3) which prohibits from coercing the individual to give information against himself and of right to privacy under Article 21 of the Constitution. In the case of Kathi Kalu Oghad, the Supreme Court defined the scope of Article 20(3). It was said that self incrimination is limited only to testimonial or oral evidence based upon the personal knowledge of the person and will not cover non-testimonial or physical evidence like handwriting. This principle over time has been used to confer validity upon the collection of fingerprints, voice and DNA samples. In the case of R.M Malkani it was held by the Supreme Court that a relevant and contemporary tape recording of the person is admissible and would not amount to self incrimination if the voice is identified and the authenticity of the recording is proved by eliminating the possibility of erasing or tampering it. Also, when the recording is made without the knowledge of the person and the conversation is voluntary it is admissible and does not violate the right to privacy under Article 21. This is because such safeguards can be claimed only for protection from unlawful and irregular methods and voice recording does not fall within such category. Though any statement made to the police could not be the sole basis for conviction it can be used in corroboration with the other evidence. The functioning of the police in the country is based on one of the two objectives. Either to avoid registration of FIRs to depict that the areas under their jurisdiction are peaceful and crime-free or to ensure conviction of the accused once the FIR is registered no matter whether the person is in fact guilty or not. The lack of means and man-power forces the police to use torture and in turn leads to violation of the rights of those accused who do not have adequate resources for getting legal aid or powerful connections to protect themselves. In such cases the police frequently try not to make use of audio-visual methods while recording the statement of the accused to keep with themselves the liberty to mould the case story in any manner, and to conceal the truth.
Bail and extension of police custody
Considering the case burden and inadequacy of courts in the country it is prudent for the accused person to get out on bail rather than waiting for an indefinitely long period in detention in hope of getting a favourable judgement. The term bail has not been defined under CrPC. It generally refers to the monetary amount or security paid by the accused or any other person on his/her behalf for release from police or judicial custody on the condition of being present in the court whenever required. Section 57 of CrPC provides that no person should be kept in police custody for more than twenty four hours in the absence of any special order of a magistrate under Section 167 of the Code. Under Section 167, when the investigation cannot be completed within twenty four hours the magistrate can increase the time period for custody to sixty/ninety days (depending upon the severity of the alleged offence) provided that there are grounds for believing that the accusation or information is well-founded. On the completion of such period of sixty/ninety days the person shall be released on bail provided that he/she furnishes the bail amount. The maximum limit of sixty/ninety days in itself is quite a long period and this period can further extend if it takes time for the accused to arrange for the bail amount. This can lead to undue extension of custody of persons who are not in sound financial condition. Also many times the police show the date and time of arrest to be later than actual so that they do not have to comply with the procedure of presenting the accused in front of the magistrate. It has also been noted by the Supreme Court that often magistrates do not apply their judicial mind and do not go into whether the delay in investigation is reasonable or whether the police have found something which justifies further custodial interrogation. This causes mechanical approval of custody and infringes the principle that “bail is the rule and jail is the exception.’ Other than that there are special laws like TADA, UAPA, NDPS which provide for an elongated period of custody. Moreover the term bail as used in different sections of the CrPC leads to a conclusion which is rather absurd. The term bail has been used in a confused manner in the Code. It is not clear whether it means only release on own bond or only on providing surety by another person or both. Reading of all the relevant sections on bail leads to the inference that a person convicted of an offence could be released on own bond while for a person undergoing pre-trial detention or one whose guilt or innocence is still not proved necessarily has to produce someone as surety to get bail. This eccentricity in the Code along with the absence of recognition that monetary deterrent is not an effective way to ensure presence in court contributes to the suffering of the accused while in the investigative process. Due to denial or delay in grant of bail during the pre-trial stage the arrested person is subjected to psychological and physical deprivations of jail life, loses his/her job (if he/she has one) and cannot prepare for his/her defence. Thus the current position of law around bail and the practices adopted by police to unduly extend custody time are violative of the rights of the accused.
After a careful consideration of all the relevant parts of the investigation stage ranging from arrest, custody, detention to bail and their impact on the accused, it can be inferred that the explicit guarantees of the constitution and the implicit statutory safeguards regarding the accused’s rights are not fully abided by. Fear of the police in the people and the want of awareness regarding the safeguards contribute to such compromise of rights. Due to such lack of awareness the arrested person does not know whether his arrest was justified, if he could be arrested without any warrant, whether the nature of the alleged offence allows him the right to claim bail or not. The means adopted by the police to facilitate conviction and the insufficiency of judicial check on such means in many cases deny the accused a fair opportunity to make his/her side of the case further and completely disbalances the fundamental and normal functioning of one’s life. In its entirety the investigative stage is a stage of wide pressure on the accused, where recourse to the judiciary is very limited and the police can and actually do make use of methods which are legally prohibited. Though the crime rate necessarily shall come down it should not be at the cost of breaching fundamental rights of a handful of persons who are caught into clutches of the police and the legal system.
- The Criminal Procedure Code, 1973, s. 2(h).
- The Criminal Procedure Code, 1973, s. 167.
- The Constitution of India, art. 20,22.
- The Criminal Procedure Code, 1973 s. 2(c).
- Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273.
- Amandeep Singh Johar v. State of N.C.T of Delhi, W.P.(C)–7608/2017.
- State of Bombay v. Kathi Kalu Oghad, 1961 AIR 1808.
- R.M Malkani v. State of Maharashtra, (1973) 1 SCC 471.
- The Criminal Procedure Code, 1973, s. 57.
- Mantoo Majumdar v. State of Bihar, (1980) 2 SCC 406.
- State of Rajasthan v. Balchand, 1977 AIR 2447.
- Moti Ram v. State of Maharashtra, (1978) 4 SCC 47.
BY VAIBHAV YADAV | NATIONAL LAW UNIVERSITY DELHI