172 and 173
172 CrPC case Diary -
Object of requiring case diaries is to check the method of investigation by the police (Peary Mohan Das v. D weston (1911) 16 CWN 165)
Methodology - Entries in the case diary must be made with promptness in sufficient detail mentioning all significant facts on careful and chronological order and with complete objectivity . A hapzard maintenance of a case diary not only does not credit those responsible for maintaining it but defeats the purpose for which its required to be maintained.
A diary kept in this section cannot be used as evidence of any date fact or statement. It can be used by the court to clear up points which require further elucidation before justice can be done .
The object of section 172 in providing for the maintenance of a diary of his proceedings by the police officer making an investigation under Chapter XII has been admirably stated by Edge, C.J. in Queen-Empress v. Mannu in the following words:
"The early stages of the investigation which follows on the commission of a crime must necessarily in the vast majority of cases be left to the police, and until the honesty, the capacity, the discretion and the judgment of the police can be thoroughly trusted, it is necessary, for the protection of the public against criminals, for the vindication of the law and for the protection of those who are charged with having committed a criminal offence that the Magistrate or Judge before whom the case is for investigation or for trial should have the means of ascertaining what was the information, true, false, or misleading which was obtained from day to day by the police officer who was investigating the case and what such police officer acted."
Scope of case diaries?
Supreme Court of India
Habeeb Mohammad vs The State Of Hyderabad on 5 October, 1953
Equivalent citations: 1954 AIR 51, 1954 SCR 475
Section 172 provides that any criminal court may send for the police diaries of a case under inquiry or trial in such court and may use such diaries, not as evidence in the case but to aid if in such inquiry or trial. It seems to us that the-learned Judge was in error in making use of the police diaries at all in his judgment and in seeking confirmation of his opinion on the question of appreciation of evidence from statements contained in those diaries. The only proper use he could make of these diaries was the one allowed by section 172, Criminal Procedure Code, i.e., during the trial he could get assistance from them by suggesting means of further elucidating points which needed clearing up and which might be material for the purpose of doing justice between the State and the accused. This he did not do because the diaries were not before him. -It was pointed out in Rex v. Mannu(1) by a full court that a special diary may be used by the court to assist in an inquiry or trial by suggesting means of further elucidating points which need clearing up and which are material for the purpose of doing justice between the Crown and the accused but not as containing entries which can by themselves be taken to be evidence of any date, fact or statement therein contained. The police officer who made the diary may be furnished with it but not any other witness. The Judge made improper use of the diary by referring to it in his judgment and by saying that he intently perused it and the statements of witnesses taken in court were not inconsistent with those that were made by the witnesses before the police officer. It is difficult to say to what extent the perusal of the case diaries at that stage influenced the mind of the judge in the decision of the case. It may well be that that perusal strengthened the view of the judge on the evidence against the appellant and operated to his prejudice. If there was any case in which it was necessary to derive assistance from the case diary during the trial it was this case and the investigating officer who appeared in the witness box instead of giving unsatisfactory answers the questions put to him might well have given accurate answers by refreshing his memory from those diaries and cleared up the lacunae that appear in the prosecution case. It was next contended that a number of documents that the accused wanted for his defence were not produced by the prosecution and were intentionally withheld. As a matter of course entire case diary cannot be given to the accused at mere asking of the accused (unless the case case falls within exception of Section 172 (3) ) and neither should a judge allow cross examination to be conducted on irrelevant matters recorded in the case diary :-
Supreme Court of India
Sidharth, Etc. Etc vs State Of Bihar on 30 September, 2005
in this case entire case diary maintained by the police was made available to the accused. Under Section 172 of the Criminal Procedure Code, every police officer making an investigation has to record his proceedings in a diary setting forth the time at which the information reached him, the time at which he began and closed his investigation, the place or places visited by him and a statement of the circumstances ascertained through his investigation. It is specifically provided in Sub-clause (3) of Section 172 that neither the accused nor his agents shall be entitled to call for such diaries nor shall he or they be entitled to see them merely because they are referred to by the Court, but if they are used by the police officer who made them to refresh his memory, or if the Court uses them for the purpose of contradicting such police officer, the provisions of section 161 of the Cr.P.C. or the provisions of section 145 of the Evidence Act shall be complied with. The Court is empowered to call for such diaries not to use it as evidence but to use it as aid to find out anything that happened during the investigation of the crime. These provisions have been incorporated in the Code of Criminal Procedure to achieve certain specific objectives. The police officer who is conducting the investigation may come across series of information which cannot be divulged to the accused. He is bound to record such facts in the case diary. But if the entire case diary is made available to the accused, it may cause serious prejudice to others and even affect the safety and security of those who may have given statements to the police. The confidentiality is always kept in the matter of criminal investigation and it is not desirable to make available the entire case diary to the accused. In the instant case, Supreme court noticed that the entire case diary was given to the accused and the investigating officer was extensively cross-examined on many facts which were not very much relevant for the purpose of the case. Supreme Court deprecated the practice of Sessions Judge concerned to given make available to the accused entire case diary and letting a cross examination to continue which was irrelevant to the case.
(However , Entries made in a personal diary by a police officer who did not investigate into a case do not fall within Section 172)
(Remember , the judge should not use the police diary to the prejudice of the accused Cr.PC permits the court to use the diary for the limited purpose of contradicting the police officer who recorded information in such diary and not for the purpose of corroborating him. Police diaries cannot be admitted as corroborative evidence . Such diary cannot be used by any other witness other than the police officer who made it for the purpose of refreshing his memory, nor can it be used to contradict any witness other than such police officer. Defence also cannot force a police officer to use the case diary to refresh his memory , so that he may become entitled to see it , its upto the discretion of police officer to refresh his memory by using such diary or not. Judge may call for such diary only for the purpose for aiding in inquiry or trial if he so wishes , defence also cannot force a judge to contradict police officer on basis of case diary , unless judge himself finds it necessary. Legislature has reposed complete trust in the court which is conducting the inquiry or the trial. It has empowered the court to call for any such relevant case diary, if there is any inconsistency or contradiction arising in the context to the case diary, the court can use the entries for the purpose of contradiction. Ultimately there can be no better custodian or guardian of the interest of the justice than the court trying the case. ) Bar of Section 172 does not apply in writ proceedings : - Khatri & Ors. Etc vs State Of Bihar & Ors on 10 March, 1981
Equivalent citations: 1981 AIR 1068 The criminal court holding an inquiry or trial of a case is therefore empowered by sub-section (2) of section 172 to send for the police diary of the case and the criminal court can use such dairy, not as evidence in the case, but to aid it in such inquiry or trial. But, by reason of sub-section (3) of section 172, merely because the case, diary is referred to by criminal court, neither the accused nor his agents are entitled to call for such diary nor are they entitled to see it. If however the case diary is used by the police officer who has made it to refresh his memory or if the criminal court uses it for the purpose of contradicting such police officer in the inquiry or trial, the provisions of section 161 or section 145, as the case may be, of the Indian Evidence Act would apply and the accused would be entitled to see the particular entry in the case diary which has been referred to so far either of these purposes and so much of the diary as in the opinion of the Court is necessary to a full understanding of the particular entry so used. It will thus be seen that the bar against production and use of case diary enacted in section 172 is intended to operate only in an inquiry or trial, for an offence and even this bar is a limited bar, because in an inquiry or trial, the bar does not operate if the case dairy is used by the police officer for refreshing his memory or the criminal court uses it for the purpose of contradicting such police officer. This bar can obviously have no application where a case diary is sought to be produced and used in evidence in a civil proceeding or in a proceeding under Article 32 or 226 of the Constitution and particularly when the party calling for the case diary is neither an accused nor his agent in respect of the offence to which the case diary relates. Now plainly and unquestionably in the writ petition which has been filed under Article 32 of the Constitution to enforce the fundamental right guaranteed under Article 32 is neither an 'inquiry' nor a 'trial' for an offence nor is the Court hearing the writ petition a criminal court nor are the petitioners, accused or their agents so far as the offences arising out of their blinding are concerned. Supreme Court in Malkiat Singh and Others v. State of Punjab,  4 SCC 341 reiterating the view taken in Mannu's case and in Khatri's case (supra) regarding the scope of section 172 (3) also observed thus:
"The evidence on record clearly shows that the defence has freely used the entries in the case diary as evidence and marked some portions of the diary for contradictions or omissions in the prosecution case. This is clearly in negation of and in the teeth of Section 172(3) of the Code. It is manifest from its bare reading without subjecting to detailed and critical analysis that the case diary is only a record of day to day investigation of the investigating officer to ascertain the statement of circumstances ascertained through the investigation. Under sub-section (2) the court is entitled at the trial or enquiry to use the diary not as evidence in the case, but as aid to it in the inquiry or trial. Neither the accused, nor his agent, by operation of sub-section (3), shall be entitled to call for the diary, nor shall he be entitled to use it as evidence merely because the court referred to it. Only right given thereunder is that if the police officer who made the entries in the diary uses it to refresh his memory or if the court uses it for the purpose of contradicting such witness, by operation of Section 161 of the Code and Section 145 of the Evidence Act, it shall be used for the purpose of contradiction the witness, i.e. Investigation Officer or to explain it in re- examination by the prosecution, with permission of the court It is, therefore, clear that unless the investigating officer or the court uses it either to refresh the memory or contradicting the investigating officer as previous statement under Section 161 that too after drawing his attention thereto as is enjoined under Section 145 of the Evidence Act, the entries cannot be used by the accused as evidence..Neither Investigative officer (PW.5 and 6) nor the court used the case diary. Therefore, the free use thereof for contradicting the prosecution evidence is obviously illegal and it is inadmissible in evidence. Thereby the defence cannot place reliance thereon. " (Supreme Court of India in Shamshul Kanwar vs State Of U.P decided on 4 May, 1995 reiterated the same position as described above ,so the law regarding it is settled.)
CAN SECTION 91 BE INVOKED TO SUMMONED CASE DIARY?
Supreme Court of India
State Of Kerala vs Babu & Ors on 4 May, 1999
Whether the learned Sessions Judge can call for the police diaries of a case which is not under inquiry or trial before him and permit it to be used by the accused for contradicting a witness examined in another case under trial before him?
The language of Section 91 is much wider than the language of Section 172 and by no stretch of imagination it could be contended that the case diary maintained under Section 172 of the Code is not a document as contemplated under Section 91(1) of the Code. If that be so and if the court comes to the conclusion that the production of such document is necessary or desirable then, in our opinion, the court is entitled to summon the case diary of another case under Section 91 of the Code de hors the provisions of Section 172 of the Code for the purpose of using the statements made in the said diary, for contradicting a witness. When a case diary, as stated above, is summoned under Section 91(1) of the Code then the restrictions imposed under sub-sections (2) and (3) of Section 172 would not apply to the use of such case diary but we hasten to add that while using a previous statement recorded in the said case diary, the court should bear in mind the restrictions imposed under Section 162 of the Code and Section 145 of the Evidence Act because what is sought to be used from the case dairy so produced, are the previous statements recorded under Section 161 of the Code.
In this view of the matter, in Supreme Court's opinion, a case diary of another case, not pertaining to the trial in hand can be summoned if the court trying the case considers that production of such a case diary is necessary or desirable for the purpose of trial, under Section 91 of the Code. For the above reasons, this appeal fails and the judgments impugned are confirmed though for a different reason as indicated above.
RTI cannot be used to summon case diary by the accused: Balakram V State of Uttarakhand & Ors (2017)7 SCC 668 If neither the police officer has refreshed his memory with reference to entries
in the police diary nor has the trial court used the entries
in the diary for the purposes of contradicting the police
officer , it is not open for the accused to produce
certain pages of police diary obtained by him under the
provisions of Right to Information Act for the purpose of
contradicting the police officer.
Police report under 173 (2) r/w 170 can be called chargesheet or challan or positive report when report alleges commission of a crime by accused person . When it negatives a crime committed by accused person the report shall be read with 173 (2) r/w 169 in either of the situation the report will always be submitted to the magistrate under 173 (2)
Submission of late report may lead to an inference that investigation is carried off unfairly or with some ulterior motive R.P kapur v State of punjab (Air 1960 SC 866)
Police report contains the the facts and conclusion drawn by police but it is not complete basis or representation of the prosecutions case. (R K Dalmia v. state of Delhi )
Magistrate in this situation is to aply his judicial mind to the police report and he is in no way bound by the police report , he may differ with a police report be it a chargesheet or final report . He may decide to issue process even if there is no sufficient ground for proceeding further (Supreme Court of India.
H. S. Bains Director Small ... vs The State (Union Territory Of ... on 10 October, 1980)
. The Police report under Sec. 173 will contain the facts discovered or unearthed by the police and the conclusion drawn by the police therefrom. The Magistrate is not bound by the conclusions drawn by the Police and he may decide to issue process even if the Police recommend that there is no sufficient ground for proceeding further. The Magistrate after receiving the Police report, may, without issuing process or dropping the proceeding decide to take cognizance of the offence on the basis of the complaint originally submitted to him and proceed to record the statements upon oath of the complainant and the witnesses present under Sec. 200 Criminal Procedure Code and thereafter decide whether to dismiss the complaint or issue process. The mere fact that he had earlier ordered an investigation under Sec. 156(3) and received a report under Sec. 173 will not have the effect of total effacement of the complaint and therefore the Magistrate will not be barred from proceeding under Sections 200, 203 and 204. Thus, a Magistrate who on receipt of a complaint, orders an investigation under Sec. 156(3) and receives a police report under Sec. 173(2), may, thereafter, do one of three things: (1) he may decide that there is no sufficient ground for proceeding further and drop action; (2) he may take cognizance of the offence under Sec. 190(1)(b) on the basis of the police report and issue process; this he may do without being bound in any manner by the conclusion arrived at by the police in their report: (3) he may take cognizance of the offence under Sec. 190(1)(a) on the basis of the original complaint and proceed to examine upon oath the complainant and his witnesses under Sec. 200 If he adopts the third alternative, he may hold or direct an inquiry under Sec. 202 if he thinks fit. Thereafter he may dismiss the complaint or issue process, as the case may be.
What is protest petition?
When an aggrieved person or complainant is not satisfied with the police report which filed before the concerned court, such person may move the petition against the negative police report which is called the Protest Petition. In simple words, Protest Petition is a representation made by the victim to the court during or after the completion of investigation by the police. Such petition is treated as Complaint under Section 190 of Criminal Procedure Code before the concerned court.
All the essential ingredients of the Complaint must be satisfy in the Protest Petition before Magistrate takes cognizance under section 190(1) (a) of the Code of Criminal Procedure, 1973. There are three options available to the Magistrate, when the final report is submitted by the police and the Protest Petition is filed.
Firstly, Magistrate may accept the final report and may also reject the Protest Petition.
Secondly, he may accept the final report but treat the Protest Petition as a Complaint and proceed in accordance with Section 200 and 202 of the Code.
Lastly, he may accept the Protest Petition and reject the final report and take cognizance under Section 190 (1) (a) of the code.
Vishnu Kumar Tiwari v. State of Uttar Pradesh Criminal Appeal No. 1015 of 2019, the Supreme Court observed that, "Undoubtedly, if he (the magistrate) treats the protest petition as a complaint, he would have to follow the procedure prescribed under Section 200 and 202 of the Code if the latter Section also commends itself to the Magistrate. In other words, necessarily, the complainant and his witnesses would have to be examined. No doubt, depending upon the material which is made available to a Magistrate by the complainant in protest petition, it may be capable of being relied on in a particular case having regard to its inherent nature and impact on the conclusions in the final report. That is, if the material is such that it persuades the court to disagree with the conclusions arrived at by the Investigating Officer; cognizance could be taken under Section 190 (1) (b) of the Code for which there is no necessity to examine the witnesses under Section 200 of the Code. But as the Magistrate could not be compelled to treat the protest petition as a complaint, the remedy for the complainant would be to file a fresh complaint and invite the Magistrate to follow the procedure under Section 200 of the Code or Section 200 read with Section 202 of the Code."
"It is undoubtedly true that before a Magistrate proceeds to accept a final report under Section 173 and exonerate the accused, it is incumbent upon the Magistrate to apply his mind to the contents of the protest petition and arrive at a conclusion thereafter. While the Investigating Officer may rest content by producing the final report, which, according to him, is the culmination of his efforts, the duty of the Magistrate is not one limited to readily accepting the final report. It is incumbent upon him to go through the materials, and after hearing the complainant and considering the contents of the protest petition, finally decide the future course of action to be, whether to continue with the matter or to bring the curtains down."
In Mahesh Chand (case given below), no doubt the matter was commenced by a First Information Report and followed up by the complainant in the court under Section 190(1)(a) of the Code. On the First Information Report, after investigation, a final report was filed. The final report came to be accepted and it was closed. This is despite the fact that there was the protest petition. A third complaint, as it were, came to be filed by the complainant. This Court went on to hold that acceptance of the final report would not stand in the way of taking cognizance on a protest/complaint petition. In Mahesh Chand v. B. Janardhan Reddy , the appellant/complainant had lodged report alleging commission of offences by the respondent. Subsequently, being dissatisfied with the investigation, he filed a criminal complaint in the court of the Magistrate. In the meantime, the Investigating Officer filed a final report finding that the controversy was of a civil nature. The appellant filed a protest petition. The final report was accepted by the Magistrate. The complaint case filed by the appellant was also closed. It became final. The appellant filed a third complaint, as it were, under Section 200 of the Code. On summons being issued, it was successfully questioned before the High Court. We may notice the following discussion by this Court profitably.
“12. There cannot be any doubt or dispute that only because the Magistrate has accepted a final report, the same by itself would not stand in his way to take cognizance of the offence on a protest/complaint petition; but the question which is required to be posed and answered would be as to under what circumstances the said power can be exercised.
It is settled law that there is no statutory bar in filing a second complaint on the same facts. In a case where a previous complaint is dismissed without assigning any reasons, the Magistrate under Sec. 204 Cr.P.C. may take cognizance of an offence and issue process if there is sufficient ground for proceeding.Further, second complaint on the same facts could be entertained only in exceptional circumstances, namely, where the previous order was passed on an incomplete record or on a misunderstanding of the nature of complaint or it was manifestly absurd, unjust or where new facts which could not, with reasonable diligence, have been brought on record in the previous proceedings, have been adduced. In the facts and circumstances of this case, the matter, therefore, should have been remitted back to the learned Magistrate for the purpose of arriving at a finding as to whether any case for cognizance of the alleged offence had been made out or not."
Rajesh v. State of Haryana (Criminal Appeal No. 813 of 2019) - "If police names only some accused in the charge sheet instead of all accused named in FIR, the Magistrate has to give an opportunity to the informant to file protest petition."
173 (2) Also provides that officer shall communicate in manner prescribed by state government action taken by him to the person giving the F.I.R .
Supreme Court of India
Dinesh Dalmia vs C.B.I on 18 September, 2007
The statutory scheme does not lead to a conclusion in regard to an investigation leading to filing of final form under Sub-section (2) of Section 173 and further investigation contemplated under Sub-section (8) thereof. Whereas only when a charge sheet is not filed and investigation is kept pending, benefit of proviso appended to Sub-section (2) of Section 167 of the Code would be available to an offender; once, however, a charge sheet is filed, the said right ceases. Such a right does not revive only because a further investigation remains pending within the meaning of Sub-section (8) of Section 173 of the Code.
Supreme Court of India
Bhagwat Singh vs Commissioner Of Police And Anr on 25 April, 1985
The Court is accordingly of the view that in a case where
the Magistrate to whom a report is forwarded under sub-
section (2) (i) of section 173 decides not to take
cognizance of the offence and to drop the proceedings or
takes the view that there is no sufficient ground for
proceeding against some of the persons mentioned in the
First Information Report, the Magistrate must give notice to
the informant and provide him an opportunity of being heard
at the time of consideration of the report, and the
difficulty of service of notice on the informant cannot
possibly provide any justification for depriving the
informant of the opportunity of being heard at the time when
the report is considered by the Magistrate.
But even if such person not
entitled to notice from the Magistrate, he can appear before
the Magistrate and make his submissions when the report is
considered by the Magistrate for the purpose of deciding
what action he should take on the report. The injured person
or any relative of the deceased, though not entitled to
notice from the Magistrate, has locus to appear before the
Magistrate at the time of consideration of the report, if he
otherwise comes to know that the report is going to be
considered by the Magistrate and if he wants to make his
submissions in regard to the report, the Magistrate is bound
to hear him.
Can Police report a deemed complaint in non cognizable offences?
Scheme of Crpc on subject reflective from 2 (d) defining complaint encompasses a police report also as a deemed complaint if the matter has been investigated by the police officer regarding the case involving a non cognizable offence . It obviously means that proceedings before a magistrate could not be viewed as without jurisdiction merely because proceedings were instituted by police officer after investigation when he no power to investigated. (State of Bihar v. Ganesh Chaudhary and others 2001 (2) SCC 245)
Is the word shall in sub section 173 (5) Mandatory?
Supreme Court of India
Central Bureau Of Investigation vs R.S. Pai And Another on 3 April, 2002
it is apparent that normally, the Investigating Officer is required to produce all the relevant documents at the time of submitting the charge-sheet. At the same time, as there is no specific prohibition, it cannot be held that the additional documents cannot be produced subsequently. If some mistake is committed in not producing the relevant documents at the time of submitting the report or charge-sheet, it is always open to the Investigating Officer to produce the same with the permission of the Court. In our view, considering the preliminary stage of prosecution and the context in which Police Officer is required to forward to the Magistrate all the documents or the relevant extracts thereof on which prosecution proposes to rely, the word 'shall' used in sub-section (5) cannot be interpreted as mandatory, but as directory. Normally, the documents gathered during the investigation upon which the prosecution wants to rely are required to be forwarded to the Magistrate, but if there is some omission, it would not mean that the remaining documents cannot be produced subsequently. Analogous provision under Section 173(4) of the Code of Criminal Procedure, 1898 was considered by this Court in Narayan Rao v. The State of Andhra Pradesh [(1958) SCR 283 at 293] and it was held that the word 'shall' occurring in sub-section 4 of Section 173 and sub-section 3 of Section 207A is not mandatory but only directory. Further, the scheme of sub-section (8) of Section 173 also makes it abundantly clear that even after the charge-sheet is submitted, further investigation, if called for, is not precluded. If further investigation is not precluded then there is no question of not permitting the prosecution to produce additional documents which were gathered prior to or subsequent to investigation. In such cases, there can not be any prejudice to the accused.
(In a criminal trial, it is assumed that the investigation is
completed and the prosecution has, as such, concretised its case against
an accused before commencement of the trial. It is further settled law that
the prosecution ought not to be allowed to fill up any lacunae during a trial.
As recognised by this Court in Central Bureau of Investigation v. R.S.
Pai (2002) 5 SCC 82, the only exception to this general rule is if the
prosecution had ‘mistakenly’ not filed a document, the said document can
be allowed to be placed on record. The Court held as follows:
“7. From the aforesaid sub-sections, it is apparent that
normally, the investigating officer is required to produce
all the relevant documents at the time of submitting the
charge-sheet. At the same time, as there is no specific
prohibition, it cannot be held that the additional
documents cannot be produced subsequently. If some
mistake is committed in not producing the relevant
documents at the time of submitting the report or the
charge-sheet, it is always open to the investigating
officer to produce the same with the permission of the
What will be situation when there is a complaint case and police investigation in respect of the same offence ?
section 210 of crpc deals with such situation.
power to order further investigation - nature of the provision is that its an enabling provision.
Supreme Court of India
State Of Bihar And Anr vs J.A.C. Saldanha And Ors on 13 November, 1979
Section 173(8) enables an officer in
charge of a police station to carry on further investigation
even after a report under s. 173(2) is submitted to Court.
But if State Government has otherwise power to direct
further investigation it is neither curtailed, limited nor
denied by s. 173(8) more so, when the State Government
directs an officer superior in rank to an officer in charge
of police station thereby enjoying all powers of an officer
in charge of a police station to further investigate the
case. Such a situation would be covered by the combined
reading of s. 173(8) with s. 36 of the Code.
The power of the Magistrate under s. 156(3) to
direct further investigation is clearly an independent power
and does not stand in conflict with the power of the State
Government. The power conferred upon the Magistrate under s.
156(3) can be exercised by the Magistrate even after
submission of a report by the investigating officer which
would mean that it would be open to the Magistrate not to
accept the conclusion of the investigating officeand
direct further investigation. This provision does not in any way
affect the power of the investigating officer to further
investigate the case and even after submission of the report
as provided in s. 173(8). Whether magistrate can allow complainant/ informant to add additional sections of IPC into chargesheet?
Supreme Court of India
State Of Gujarat vs Girish Radhakishan Varde on 25 November, 2013
Bench: G.S. Singhvi, Gyan Sudha Misra
But if a case is registered by the police based on the FIR registered at the Police Station under Section 154 Cr.P.C. and not by way of a complaint under Section 190 (a) of the Cr.P.C. before the magistrate, obviously the magisterial enquiry cannot be held in regard to the FIR which had been registered as it is the investigating agency of the police which alone is legally entitled to conduct the investigation and, thereafter, submit the chargesheet unless of course a complaint before the magistrate is also lodged where the procedure prescribed for complaint cases would be applicable. In a police case, however after submission of the chargesheet, the matter goes to the magistrate for forming an opinion as to whether it is a fit case for taking cognizance and committing the matter for trial in a case which is lodged before the
police by way of FIR and the magistrate cannot exclude or include any section into the chargesheet after investigation has been completed and chargesheet has been submitted by the police.
14. The question, therefore, emerges as to whether the complainant/informant/prosecution would be precluded from seeking a remedy if the investigating authorities have failed in their duty by not including all the sections of IPC on which offence can be held to have been made out in spite of the facts disclosed in the FIR. The answer obviously has to be in the negative as the prosecution cannot be allowed to suffer prejudice by ignoring exclusion of the sections which constitute the offence if the investigating authorities for any reason whatsoever have failed to include all the offence into the chargesheet based on the FIR on which investigation had been conducted. But then a further question arises as to whether this lacunae can
be allowed to be filled in by the magistrate before whom the matter comes up for taking cognizance after submission of the chargesheet and as already stated, the magistrate in a case which is based on a police report cannot add or substract sections at the time of taking cognizance as the same would be permissible
by the trial court only at the time of framing of charge under section 216, 218 or under section 228 of the Cr.P.C. as the case may be which means that after submission of the chargesheet it will be open for the prosecution to contend before the appropriate trial court at the stage of framing of charge to establish that on the given state of facts the appropriate sections which according to the prosecution should be framed can be allowed to be framed. Simultaneously, the accused also has the liberty at this stage to submit whether the charge under a particular provision should be framed or not and this is the appropriate forum in a case based on police report to determine whether the charge can be framed and a particular section can be added or removed depending upon the material collected during investigation as also the facts disclosed in the FIR and the chargesheet.
Inquest report is not a substantive evidence.
Object of 174
Supreme Court of India
Pedda Narayana & Ors vs State Of Andhra Pradesh on 8 April, 1975
The object of the inquest proceedings under s. 174Cr.
P.C. is merely to ascertain whether a person has died under
suspicious circumstances or whether it was a case of
unnatural death, and if so, what was the apparent cause of
death. The question regarding the details as to how the
deceased was assaulted or who assaulted him or under what
circumstances is foreign to the proceedings. Therefore,
neither in practice nor in law was it necessary for the
police to have mentioned details of all the overt acts of
the accused in the inquest report.
In Sanskrit the word panch means
respectable person and nama a written document It is to be also
noted that the panchas are to be two or more independent and respectable persons. In the case where there is no eye witness to the
offence and the case totally base on circumstantial evidence then such
panchnama carries immense value. The panch witness can also refresh
his memories during the court of giving evidence as per section 159 of
Indian Evidence Act, 1872.
INQUEST PANCHNAMA :
When any person dies due to the result of crime or under
suspicious circumstances then the Investigating Officer has to draw
inquest panchanama as per section 174 of Criminal Procedure Code,
1973. In this panchanama the details of how the dead body is lying
and descriptions such as of any mark of injuries found on person of
deceased, apparent cause of death or by what weapon or instrument.
such marks appear to have been inflicted are to be mentioned. This
panchanama helps to find out whether at the first sight of dead body it
can be gather that cause of death is unnatural.
section 175 of Crpc is to be read with 179 of IPC : bound to truly answer all questions other than the answers which incriminate. (always learn to related self incriminatory parts with constitutional provisions like article 20 , it will help you fetch more marks.)