Under Chapter XII of the Code of Criminal Procedure (CrPC) the police have the power, in fact the duty, to record information about the alleged commission of a cognisable offence and thereafter to investigate the offence, arrest the accused and produce accused persons before a court for it to take cognisance and bring the accused to trial. Under Chapter V of the CrPC, the power to arrest and the procedure after arrest is laid down in considerable detail. A very special responsibility for the safety of the arrested person vests in the arresting officer and the officer in charge of a police station. Under Section 174, every case of suspicious death shall be brought under inquest by an executive magistrate and in addition where a person dies in custody of the police, further enquiry will be made by a judicial magistrate. Further, under Section 436 of the CrPC, a person arrested for bailable offence shall be enlarged on bail by the police or a magistrate and under Section 437 a magistrate may give bail to a person arrested for a nonbailable office. In other words, the right to bail is normal, custody should be an exception. This brings us to Section 167 CrPC when the police, being unable to complete the investigation within 24 hours of the arrest of a person, may seek the orders of a magistrate for detention of the accused in custody. Instead of giving bail, the magistrate may direct the detention of an accused person in police or judicial custody as he deems fit. This custody will not normally exceed 15 days in the whole, provided that the magistrate authorises detention beyond this but not for a period exceeding 90 days when the investigation relates to an offence carrying a sentence of not less than 10 years imprisonment and 60 days in every other case.
The question arises about what purpose police custody of an accused serves. Under CrPC Section 161, the police are entitled to examine witnesses who may have knowledge about the offence or may be otherwise able to help the police. The police officer may reduce into writing any statement of a witness or record such statement by audio-video electronic means. However, under Section 162 statements made to the police may not be signed by the witness and, therefore, cannot be entered into evidence. The only purpose for which such a statement may be used is to contradict a witness as per Section 145 of the Indian Evidence Act. Though such contradiction will not render the witness liable for action for perjury, the court may draw an inference at its discretion about the veracity of the sworn statement made by the witness during trial. Similarly, under CrPC Section 164 no police officer may record a confession, nor can any confession be recorded by a magistrate until he is convinced that the confession is being made voluntarily. Therefore, any statement made by an accused to the police has no evidentiary value at all. Under Section 24 of the Indian Evidence Act a confession caused by inducement, threat or promise is irrelevant and inadmissible. Under Sections 25 and 26 of the Indian Evidence Act a confession to a police officer may not be proved in court, nor may a confession by an accused while in police custody be proved against him. It is only under Section 27 of the Act that information obtained from an accused may be proved. The exact wordings of the section are reproduced below: “How much of information received from accused may be proved: Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved.”
It is for the purpose of Section 27 that the police actually obtain custody of an accused. During custody the accused is brought under interrogation. The method of interrogation is rarely scientific or gentle. It comes broadly within the definition of torture and the purpose is to extort information on the basis of which the police can try and collect evidence that can prove the crime. Because it is only that much part of a statement made by the accused in custody which leads to discovery of a fact or the physical material connected with the crime, such as a weapon, which is relevant that the police tries to pressurise an accused to give such information so that they can make recoveries based thereon. Quite often even such recoveries are faked. Therefore, the relevance of police custody is substantially reduced because ultimately the intention is to force from the accused some information on the basis of which he can be firmly implicated in the crime and his associates can be arrested.
Information extorted by third degree is very often inaccurate because the accused, in order to escape torture, will willingly give replies as desired by the investigating officer. In a country whose Evidence Act in Section 102 makes it mandatory for the burden of proof to lie on the person alleging a fact, which means that in a criminal prosecution the burden of proving guilt lies with the prosecution, in a country whose Constitution in Article 20 (3) provides that no one accused of an offence shall be compelled to be a witness against himself, the relevance of anything said in custody is highly suspect and may not be used as proof against the accused. The question remains if the provision of police custody should remain on the statute book at all.
In most civilised countries where there is rule of law the police do have the right to obtain a court order remanding an accused to police custody. At the same time there are very strict rules about how the accused will be treated in custody, there is a provision for audio-video recording of interrogation. Physical mishandling or application of pressure which might physically harm the accused is prohibited. Perhaps confessions made to the police in India should continue to remain inadmissible, but surely CrPC Section 162 can be amended so that witnesses are required to sign the statement made to the police. The trial court should have the discretion, in case of discrepancy between statements to the police and court, to decide on their veracity. The witness may be prosecuted for perjury if he is unable to explain the discrepancy. This will make the task of the police easier while investigating an offence because witnesses would be deterred from giving false statements either before the police or before the court.
One has to be careful in India about the police and its lack of bias in investigating an offence, but let us at least give the police a fair chance so that instead of using extra-legal means to control crime it adopts the forensic skills necessary to solve crimes.
M N Buch, a former civil servant, is chairman, National Centre for Human Settlements and Environment, Bhopal;
E-mail: buchnchse@yahoo.com