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Published: Fri, 02 Feb 2018
Police Discretion Within Criminal Procedure
The Indian police were established by the Police Act of 1861, which invested the organization with responsibilities of “crime prevention, investigation, … maintenance of law and order.” The police functions are governed by the Constitution of India, the Indian Evidence Act of 1972, the Criminal Procedure Code of 1973 (hereinafter ‘CrPC’), the Indian Penal Code of 1860, and various state regulations. In principle, the framers of Indian law have displayed extreme distrust in the police and have attempted to restrict their powers.  For example, Section 25 of the India Evidence Act prohibits confession made before any police official from admission in court. Similarly, Section 165 of the CrPC requires that search and seizure be carried out in front of two independent witnesses. Yet like all legislations that leave room for interpretation  , Indian law has conferred vast discretionary powers to the police. The CrPC, which lays down procedures for police action, is a good example of such varying interpretations. Its language is so structured that it has delegated considerable scope for discretion to the police in matters of arrest, search, seizure, and other functions that form part of the investigation of an affence. 
The police, is thus seen to, exercise considerable discretion at various stages of the criminal process. It is they who decide whether to investigate a complaint and, if so, how the investigation is conducted, whether to arrest a suspect, whether that suspect is to be charged and, if so, for what offences.  It is only once their investigation is complete and a Police Report is submitted  that the Courts may take cognizance of the offence  . Provisions under Chapters V, VII and XII of the CrPC are self contained and require cautious approach in exercise of discretionary powers in the field of investigation by the investigating agency. It has been held to depend to some extent on the scope and analytical interpretation of the relevant provisions. 
It is for this reason that the researcher will focus on the conduct of investigations involving a suspect, for it is that area where the police, at least in the Indian context, continue to exercise considerable discretion. In the course of the paper, the researcher will argue that the CrPC provides a wide but not unfettered discretionary power to the police. The limitations on such discretionary powers are inherent in the scheme of the CrPC itself but cannot be imposed by the judicial authorities. Further, the Code of Criminal Procedure (Amendment) Bill, 2008 which is yet to be notified will have the effect of giving even wider discretionary powers to the police.
Part 1: Exercise of Discretion by the Police during the Investigation Process
‘Investigation’ is defined in Section 2(h) of the CrPC to include all the proceedings under it for the collection of evidence conducted by a Police Officer or by any person (other than a Magistrate) who is authorized by a Magistrate in this behalf. Chapter XII deals with investigation of a cognizable offence  . Section 156 states under Clause (1) that “Any officer in charge of a police station may, without the order of a Magistrate, investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII”.
Section 154 of the Code requires a police officer in charge of police station to reduce in writing every information relating to the communication of cognizable offence.  This sets the process of investigation in motion as soon as a First Information Report (hereinafter ‘FIR’) is registered by the officer in charge of the Police Station.  Therefore, at the very stage of registration of FIR to initiate the process of investigation, the police officer has the discretion to refuse the registration of FIR in petty cases without recording any reasons for such refusal. 
Further, once the offence is registered, it is for the police to decide whether to effect arrest or not and at that stage, the court has no role to play. In that sense, the power to arrest comes within the police power to investigate a case. There are no provisions in the CrPC which would put fetters on the power of the Investigating Officer to arrest an accused if it is necessary. 
Power to Arrest exercised by the police is Discretionary
The general powers of arrest are provided to the police in Section 41 to 56 under Chapter V of the CrPC. These Sections describe the conditions under which a police officer may arrest any citizen without seeking a warrant from the magistrate. Thus, Section 41 of the CrPC states that “any police officer may arrest… without a warrant… such person who has been concerned in any congnizable offence or… against whom… reasonable suspicion exists of his being so concerned… (fourthly) in whose possession anything is found which may reasonably be suspected to be stolen property.” (Emphasis supplied) As the language and construction of the clause suggests, the law has left the determination of the grounds for making arrest entirely to the discretion of the police officer if the case falls as per the situations enumerated under the provision. Even in subsequent interpretations by the courts, what constitutes “reasonable suspicion” has not been spelt out and is said “to depend upon circumstances of the particular case”  . Further, Clause (4) extends this discretion and stipulates that no formal complaint by a citizen is necessary in order for a police officer to arrest a person under this clause. This wide discretionary power must not be used in simple bailable offences unless reasonable suspicion or credible information of the commission of a serious or such an offence is about to be committed when arrest should no doubt be made.  The power has been interpreted to be exercised in such cases where the obtaining of a warrant from a Magistrate would involve unnecessary delay which might defeat the purpose of arrest or which would cause unnecessary delay in effecting the arrest.  Since arrest is in the nature of encroachment on the liberty of the subject and effects the reputation and status of the citizen, the power can be exercised only when there is sufficient reason for the arrest, such as the likelihood of the accused person going absconding, or the risk of his committing some further offence, etc.
Concluding, the power entrusted to the police officer is discretionary leaving it to the option of the police officer whether or not to arrest the person who has been alleged to have committed a cognizable offence. As has been stated before, this power is subject to limitations specified under Chapter XII of the CrPC itself, leaving no scope for interference by the courts. 
Amendment to Section 41 by virtue of CrPC Amendment Bill, 2008
The Code of Criminal Procedure (Amendment) Bill, 2008 seeks to amend Section 41 of the CrPC to give Police a discretionary power to not arrest a person involved in an offence punishable upto maximum sentence of seven years. 
Therefore, the amendment seeks to provide that any Police Officer may without an Order from a Magistrate and without a warrant, arrest any person who commits, in the presence of a police officer, a cognizable offence and against whom reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence punishable with imprisonment for a term which may be less than seven year or which may extend to seven years, if the police officer has reason to believe on the basis of such complaint, information, or suspicion that such person has committed the said offence and is satisfied that such arrest is necessary and to this effect shall record, while making such arrest, his reasons in writing. The Bill further empowers police officer to act against such person whom credible information has been received that he has committed a cognizable offence punishable with imprisonment for a term which may extend to more than seven years whether with or without fine or with death sentence and the police officer has reason to believe on the basis of that information that such person has committed the said offence.
As can be legitimately concluded from the above, the police now needs to have a reason to believe and be satisfied that an offence has been committed by the alleged person and it is only then that they may chose to arrest the person, thus widening the scope of the discretion given to them far more.
Power to conduct Search by the police is Discretionary
The provisions of search under Chapter VII of the CrPC are even more discretionary in their nature. Section 165 of the CrPC states that “whenever an investigating officer has reasonable grounds for believing that anything… may be found at a place… and that such thing cannot in his opinion be obtained without undue delay, … he may after recording the reasons… cause search to be made… even by a subordinate officer, duly authorized by him.” (Emphasis Supplied) Again, the law merely uses the words reasonable grounds for providing authority to the police officer, who moreover can conduct the search if in his opinion there is no time to seek a search warrant. Further, the power to search has been extended to other jurisdictions through the agency of another police officer of that area by virtue of Section 166 of the CrPC.
Consquently, the Indian police rarely attempt to obtain search warrants, for they can always search a place ongoing investigation of a case. 
Part II: Power of the Police to conduct Investigation vis-a-vis power of the Judiciary while conducting trial
The legislative scheme behind the CrPC has been held to decipher distinction of jurisdiction and field covered by the police on the one hand and the powers of the court while conducting inquiry or trial. Exercise of authority or jurisdiction by these two distinct components involved in the administration of criminal justice as provided under Chapter XII and Chapter XIII to XV is indicative. This legislative object of distribution of power without transgression on the limitation of the other has received judicial approval. With the development of law under criminal jurisprudence there is clear judicial dichotomy of investigative and judicial power. They operate in different fields without conflict and scope for overlapping, unless the provisions of the Code or judicial dictum have provided to the contrary. 
It is therefore, a settled position of law that it is a statutory right of an investigating agency to investigate the circumstances of an alleged cognizable offence as it deems fit. The Hon’ble Supreme Court in State of Bihar v. J.A.C. Saldanha  observed as follows:
“There is a clear-cut and well demarcated sphere of activity in the field of crime detection and crime punishment. Investigation of an offence is the field exclusively reserved by the executive through the police department, the superintendence over which vests in the State Government. It is the bounden duty of the executive to investigate, if an offence is alleged, and bring the offender to book. Once it investigates and finds an offence having been committed, it is its duty to collect evidence for the purpose of proving the offence. Once that is completed and the investigating officer submits its report to the Court requesting the Court to take cognizance of the offence under Section 190 of the code of Criminal Procedure, its duty comes to an end. On a cognizance of the offence being taken by the Court, the police function of investigation comes to an end subject to the provision contained in Section 173(8), then commences the adjudicatory function of the judiciary to determine whether an offence has been committed and if so, whether by the person or persons charged with the crime.”
In view of the above clear delineation of powers vested with the investigating agency and the unfettered powers given to it by the CrPC to investigate all cases where they suspect that a cognizable offence has been committed in consonance with the provisions of the CrPC, it is submitted that it is the sole discretion of the investigating agency to decide what methods of investigation to adopt in a particular case, while exercising its powers under the CrPC.  While the High Court has ample jurisdiction to order the investigating agency, under Section 156(3) of the CrPC to make a further investigation, or order for prompt investigation, etc. it is submitted that the court cannot under its powers under Article 226 of the Constitution of India direct an investigating agency to investigate in a particular manner or adopt a certain method for interrogating the accused.
Therefore, a judicial order of a Magistrate Court or High Court, insofar as it directs the investigating agency to conduct the investigation in a particular manner, is erroneous in so far as it is without the authority of law.
Part III: Conclusion and Analysis
To summarize, on an analysis of the various provisions of Chapter V, VII and most importantly Chapter XII of the CrPC with regard to the question whether the powers exercised by the police in consonance with the provisions of the CrPC are discretionary in nature, the researcher concludes as follows:
With regard to the investigative process, the police has ample power to exercise discretion. The police exercises this power in deciding whether to register petty offences in the first place.
With regard to effecting arrest of an accused, the police exercises very wide powers to arrest an accused only when there is reasonable suspicion or credible information supporting the arrest.
While conducting search in the process of investigation, the police enjoys similar powers to conduct search only when in their opinion there are reasonable grounds to conduct the same.
Further, the amendment sought to be made by virtue of the 2008 amendment Bill, the police now have been entrusted with huge responsibilities to an extent where they would even be acting like Judicial authorities. As now, they should have a reason to believe and they should be satisfied they some offence has been committed and now they have to act upon.
The researcher also concludes, that the discretionary power so exercised the police is limited by the provisions of the CrPC but is not subject to exercise of judicial authority. Therefore, though the courts may direct the police that further investigation may be conducted in a case it cannot overstep this power to direct how the investigation has to be conducted, thereby it cannot ask the police to arrest an accused or search a place in a manner specified by it.
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