The Powers of the Investigating Officer

The first proviso, who need not go to the police station. No male person under the age of fifteen years or above the age of sixty years, no woman, no mentally or physically disabled person, and no person with acute illness shall be required to attend at any place other than the place in which such person resides.

The second proviso. But if such a person is willing to attend at the police station, he may be permitted to do so.

The first proviso is wider in the Sanhita than in the old Code, which protected males under fifteen or above sixty-five and women. The Sanhita lowers the upper age to sixty and adds the disabled and the acutely ill.

Sub-section (2). The State Government may by rules provide for payment by the police officer of the reasonable expenses of a person attending at a place other than his residence.

Section 180: examining witnesses

Sub-section (1). An investigating officer, or a police officer of a prescribed rank acting on his requisition, may examine orally any person supposed to be acquainted with the facts and circumstances of the case.

Sub-section (2), the duty and the exception. Such a person shall be bound to answer truly all questions relating to the case, other than questions the answers to which would have a tendency to expose him to a criminal charge or to a penalty or forfeiture.

Sub-section (3), recording. The officer may reduce a statement into writing, and if he does he shall make a separate and true record of the statement of each person.

The first proviso, new: a statement may also be recorded by audio-video electronic means.

The second proviso, new in this form: the statement of a woman against whom an offence under sections 64 to 71, 74 to 79 or 124 of the Bharatiya Nyaya Sanhita is alleged to have been committed or attempted shall be recorded by a woman police officer or any woman officer.

Section 181: what may be done with the statement

This section is short and every clause of it is examined.

Sub-section (1), the two prohibitions.

No statement made to a police officer in the course of an investigation, if reduced to writing, shall be signed by the person making it.

Nor shall any such statement, or any record of it, whether in a police diary or otherwise, or any part of it, be used for any purpose at any inquiry or trial in respect of any offence under investigation at the time when the statement was made, save as the section itself provides.

The proviso, the single permitted use. Where a witness is called for the prosecution and his statement was reduced to writing, any part of it, if duly proved, may be used:

• by the accused, as of right; and
• by the prosecution, with the permission of the Court,

to contradict him, in the manner provided by section 148 of the Bharatiya Sakshya Adhiniyam, 2023. Where any part is so used, any part may also be used in re-examination, but only to explain a matter referred to in cross-examination.

Sub-section (2), the exceptions. The section does not apply to a statement falling within section 26(a) of the Bharatiya Sakshya Adhiniyam, which is the dying declaration provision, and does not affect the proviso to section 23(2) of that Adhiniyam, which is the discovery provision.

The Explanation, omissions. An omission to state a fact in the statement may amount to a contradiction if it appears to be significant and otherwise relevant having regard to the context, and whether it does so is a question of fact.

So the rules to remember are: not signed; not usable as substantive evidence; usable only to contradict; the accused may, the prosecution needs leave; and an omission can be a contradiction if it is significant.

Section 182: no inducement

Sub-section (1). No police officer or other person in authority shall offer or make, or cause to be offered or made, any inducement, threat or promise as is mentioned in section 22 of the Bharatiya Sakshya Adhiniyam, 2023.

Sub-section (2). But no police officer or other person shall prevent, by any caution or otherwise, any person from making any statement which he may be disposed to make of his own free will, subject to section 183(4).

The two sub-sections are a pair. The first stops the officer pulling a statement out of a man. The second stops him talking a man out of one.

Section 183: confessions and statements before a Magistrate

Sub-section (1), who may record. Any Magistrate of the District in which the information about the commission of the offence has been registered, whether or not he has jurisdiction in the case, may record any confession or statement made in the course of an investigation, or at any time afterwards but before the commencement of the inquiry or trial.

The first proviso, new. Such a confession or statement may also be recorded by audio-video electronic means in the presence of the advocate of the person accused of an offence.

The second proviso. No confession shall be recorded by a police officer on whom any power of a Magistrate has been conferred under any law.

Sub-section (2), the warning. Before recording a confession the Magistrate shall explain that the person is not bound to make it and that if he does it may be used as evidence against him; and shall not record it unless, upon questioning, he has reason to believe that it is being made voluntarily.

Sub-section (3). If, before the confession is recorded, the person states that he is not willing to make it, the Magistrate shall not authorise his detention in police custody.

Sub-section (4), the form. The confession is recorded in the manner provided by section 316 for the examination of an accused, is signed by the person making it, and the Magistrate makes a memorandum at the foot in the form the section sets out, certifying that he explained the position, believes the confession voluntary, that it was taken in his presence and hearing, read over, admitted to be correct, and contains a full and true account.

Sub-section (5). Any statement other than a confession is recorded in the manner provided for statements.

Sub-section (6), and this is where the disabled witness provisions sit. Where the offence is punishable with ten years or more, life or death, the Magistrate shall record the statement of the witness brought before him by the police officer. Where the person making the statement is temporarily or permanently mentally or physically disabled, the Magistrate shall take the assistance of an interpreter or special educator, and the statement shall be recorded through audio-video electronic means, preferably by mobile phone.

Clause (b), and it is a real change. A statement so recorded of a person who is temporarily or permanently mentally or physically disabled shall be considered a statement in lieu of examination-in-chief, as specified in section 142 of the Bharatiya Sakshya Adhiniyam, 2023, so that the maker can be cross-examined on it without the need to record it again at the trial.

Section 184: medical examination of a victim of rape

Sub-section (1). Where an offence of rape or attempted rape is under investigation and it is proposed to have the woman examined, the examination shall be by a registered medical practitioner in a Government or local authority hospital and, in the absence of one, by any other registered medical practitioner, with the consent of the woman or of a person competent to consent on her behalf; and she shall be sent to the practitioner within twenty-four hours of the information being received.

Sub-section (2), the report. Prepared without delay, giving: her name and address and that of the person who brought her; her age; the description of material taken for DNA profiling; marks of injury, if any; her general mental condition; and other material particulars in reasonable detail.

Sub-sections (3) to (5). The report shall state precisely the reasons for each conclusion, shall specifically record that consent was obtained, and shall note the exact time of commencement and completion.

Sub-section (6). The practitioner shall within seven days forward the report to the investigating officer, who forwards it to the Magistrate under section 193 as part of the section 193(6)(a) documents.

Sub-section (7). Nothing in the section renders lawful an examination without consent.

The Explanation gives "examination" and "registered medical practitioner" the meanings in section 51.

Sections 185 and 186: search during investigation

Section 185(1). Where an officer in charge, or an officer making an investigation, has reasonable grounds for believing that anything necessary for the investigation may be found in a place within the limits of his station, and that it cannot otherwise be obtained without undue delay, he may search, after recording in writing the grounds of his belief in the case-diary and specifying, so far as possible, the thing to be searched for.

Sub-section (2). He shall, if practicable, conduct the search in person. The proviso, new: the search shall be recorded through audio-video electronic means, preferably by mobile phone.

Sub-section (3). If he cannot search in person and no other competent person is present, he may, after recording his reasons in writing, require a subordinate to search, delivering him a written order specifying the place and, so far as possible, the thing.

Sub-section (4). The provisions as to search-warrants and the general provisions in section 103 apply so far as may be.

Sub-section (5). Copies of the record shall be sent to the nearest Magistrate empowered to take cognizance forthwith, but not later than forty-eight hours, and the owner or occupier of the place searched shall on application be furnished free of cost with a copy by the Magistrate.

Section 186. An officer in charge, or a police officer not below the rank of sub-inspector making an investigation, may require an officer in charge of another police station, in the same or a different district, to cause a search in any case in which he might have caused it within his own limits.

The cases

Nandini Satpathy v. P.L. Dani, (1978) 2 SCC 424.

Facts. A former Chief Minister of Orissa was directed to appear at the Vigilance Police Station for questioning in a case under the Prevention of Corruption Act and the Penal Code. She was given a long list of written questions and declined to answer. A complaint was then filed against her for refusing to answer a public servant, and she challenged the whole exercise.

Held. A person questioned under the section is bound to answer, but the protection of article 20(3) of the Constitution is available at the stage of police interrogation and not only in court, and it protects an accused person from being compelled to answer questions which have a reasonable tendency to expose him to a criminal charge. The clue is whether the answer has a reasonable prospect of exposing the person to a charge, not whether it proves guilt. A person being questioned is entitled to have a lawyer present, though not throughout.

Why it matters. It is the constitutional limit on section 180, and the source of the rule that the right to silence begins at the police station rather than at the courtroom door. Section 180(2)'s exception for questions tending to expose a person to a criminal charge is the statutory half of the same idea.

H.N. Rishbud v. State of Delhi, AIR 1955 SC 196.

Facts. The accused were prosecuted for offences under the Prevention of Corruption Act. The investigation had been carried out by officers below the rank the Act required, and without the Magistrate's order the Act made necessary. They argued that a trial following such an investigation was void.

Held. Investigation under the Code consists of proceeding to the spot; ascertaining the facts and circumstances of the case; discovering and arresting the suspected offender; collecting evidence, including examination of persons and search and seizure; and forming the opinion whether there is a case to place the accused before a Magistrate for trial. A defect or illegality in investigation, however serious, has no direct bearing on the competence or the procedure of the trial. Such an irregularity does not vitiate the trial unless it has caused a miscarriage of justice, and the objection must be raised at an early stage.

Why it matters. It supplies the definition of investigation every later case uses, and it is the answer to the standing question about a defective investigation. Section 175(2) of the Sanhita says the same thing in statutory form.

A worked example

Inspector Rane is investigating a cheating case at Malad. He wants to question the complainant's accountant, who is sixty-two, and the complainant's daughter.

Can he call them to the police station? No. The first proviso to section 179(1) protects a male above sixty and a woman from being required to attend anywhere other than where they reside. He must go to them, unless they are willing to attend, in which case the second proviso permits it.

Must they answer? Yes, truly, section 180(2), except questions whose answers would tend to expose them to a criminal charge, penalty or forfeiture. That exception is Nandini Satpathy in statutory form.

He writes down what the accountant says. He must make a separate and true record of each person's statement, section 180(3), and he may record it by audio-video electronic means.

Does the accountant sign it? No. Section 181(1) forbids it.

At trial the accountant, called by the prosecution, says something different. The accused may use the earlier statement, duly proved, to contradict him under section 148 of the Bharatiya Sakshya Adhiniyam. The prosecution may do so only with the Court's permission. Nothing else may be done with it.

The accountant left out an important fact in his police statement. Under the Explanation to section 181, that omission may amount to a contradiction if it is significant and otherwise relevant in context, and whether it does is a question of fact.

The accused wants to confess. Only a Magistrate may record it, section 183(1), and no police officer on whom magisterial powers have been conferred may. The Magistrate must warn him and must satisfy himself it is voluntary, section 183(2). If he says he is unwilling, the Magistrate shall not authorise police custody, section 183(3). The confession is recorded as under section 316, signed, and carries the Magistrate's memorandum.

Rane wants to search a flat within his station limits for a laptop. He must record the grounds of his belief in the case-diary, specify the thing so far as possible, search in person if practicable, have the search recorded by audio-video electronic means, and send copies of the record to the nearest Magistrate not later than forty-eight hours. The occupier may get a free copy from the Magistrate on application.

The laptop turns out to be in Pune. Rane, being an officer in charge, may require the officer in charge of the Pune station to cause a search, section 186(1).

Distinctions

What this does NOT mean

Section 180(2) is not a right to stay silent about everything. The witness must answer truly; the exception is confined to answers tending to expose him to a criminal charge, penalty or forfeiture.

A police statement is not evidence. Section 181(1) forbids its use for any purpose except contradiction, and it is not substantive proof of anything it says.

Section 183 does not let a police officer record a confession, however senior, and expressly not one on whom magisterial powers have been conferred.

And a defective investigation does not by itself destroy the trial. Rishbud, and section 175(2), say the objection must show a miscarriage of justice and must be taken early.

Quick revision

• Section 179: attendance by written order of a person acquainted with the facts; no male under fifteen or above sixty, no woman, no disabled person and no person with acute illness to be required to attend away from where he resides, unless willing; reasonable expenses may be provided by rules.
• Section 180: oral examination; bound to answer truly, except questions tending to expose him to a criminal charge, penalty or forfeiture; separate and true record of each statement; audio-video recording permitted; a woman officer for the listed sexual offences.
• Section 181: statements to the police are not signed, and are not usable at all except, by the accused as of right and by the prosecution with the Court's permission, to contradict the witness under section 148 of the Bharatiya Sakshya Adhiniyam; re-examination only to explain a matter in cross-examination; omissions may be contradictions if significant, and that is a question of fact.
• Section 182: no inducement, threat or promise under section 22 of the Adhiniyam; and no preventing a voluntary statement.
• Section 183: only a Magistrate of the District where the information was registered, with or without jurisdiction; audio-video recording in the presence of the accused's advocate permitted; no confession by a police officer with magisterial powers; warning and satisfaction of voluntariness; no police custody if he declines; recorded as under section 316, signed, with the prescribed memorandum; for offences of ten years or more, life or death the Magistrate shall record a witness's statement; a disabled person's statement, recorded with an interpreter or special educator by audio-video means, stands as examination-in-chief under section 142 of the Adhiniyam.
• Section 184: rape victim examined by a Government or local authority hospital practitioner, with consent, within twenty-four hours of the information; six report particulars including DNA material and general mental condition; reasons for each conclusion; consent recorded; exact times; report within seven days.
• Section 185: search on recorded grounds in the case-diary, in person if practicable, recorded by audio-video means; a written order to a subordinate on recorded reasons; section 103 applies; copies to the Magistrate within forty-eight hours and a free copy to the occupier on application.
• Section 186: an officer in charge, or an officer not below sub-inspector, may require another station to cause a search.
• Nandini Satpathy: article 20(3) operates at the police station; the test is a reasonable tendency to expose to a criminal charge; a lawyer may be present though not throughout.
• Rishbud: what investigation consists of, and that a defect in it does not vitiate the trial unless it has caused a miscarriage of justice.

Test yourself

1. May an investigating officer require a woman to come to the police station? No, not as of right. Under the first proviso to section 179(1) she cannot be required to attend anywhere other than where she resides, though under the second proviso she may be permitted to attend if she is willing.

2. Is a person examined under section 180 bound to answer every question? He is bound to answer truly all questions relating to the case, other than those the answers to which would have a tendency to expose him to a criminal charge, penalty or forfeiture, section 180(2).

3. For what single purpose may a statement to the police be used at trial? To contradict the witness who made it, in the manner provided by section 148 of the Bharatiya Sakshya Adhiniyam; by the accused as of right and by the prosecution only with the Court's permission.

4. Can an omission in a police statement be used as a contradiction? Yes, if it appears to be significant and otherwise relevant having regard to the context, and whether it amounts to a contradiction is a question of fact, Explanation to section 181.

5. Who may record a confession, and what must he do first? Any Magistrate of the district in which the information was registered, whether or not he has jurisdiction. He must explain that the person is not bound to confess and that it may be used against him, and must satisfy himself on questioning that it is voluntary, section 183(2).

6. What is the effect of a defective investigation on the trial? None by itself. Rishbud holds that a defect or illegality in investigation, however serious, has no direct bearing on the competence or procedure of the trial and does not vitiate it unless it has caused a miscarriage of justice, and section 175(2) says the proceedings may not be questioned on the ground of want of power.

7. Within what time must a rape victim be sent for medical examination, and within what time must the report be forwarded? She shall be sent within twenty-four hours of the information being received, section 184(1), and the practitioner shall forward the report within seven days, section 184(6).