The general misconception that often plagues the citizenry of this nation is that the powers and authority of the Police Department are unfettered and untrammeled. Instances of harassment of persons with regard to an investigation by the Police authorities are bitterly numerous. The added stigma stems from the fact that most people are unfamiliar with the legalities that crowd such situations and in all such cases, ignorance almost always is not the archetypal "bliss" but turns out to be nothing short of misery.
The present article endeavors to shed some much required light on the intricacies involved with regard to notices issued by an investigating police officer requiring the attendance of any person who, from the information given or even otherwise, appears to be acquainted with the facts and circumstances of the case; and such person shall attend as so required. Before proceeding to deconstruct the scope and mandate of Section 160 of the Code of Criminal Procedure, 1973 ("Code"), it would serve us well to read through the text of the same.
"160. Police officer' s power to require attendance of witnesses.
(1) Any police officer, making an investigation under this Chapter may, by order in writing, require the attendance before himself of any person being within the limits of his own or any adjoining station who, from the information given or otherwise, appears to be acquainted with the facts and circumstances of the case; and such person shall attend as so required:
Provided that no male person under the age of fifteen years or woman shall be required to attend at any place other than the place in which such male person or woman resides.
(2) The State Government may, by rules made in this behalf, provide for the payment by the police officer of the reasonable expenses of every person, attending under sub- section (1) at any place other than his residence."
At first blush, the reading of the contents of Section 160 are clear and straightforward and undoubtedly this provision is pressed in service of a fair and thorough investigation which is the most fundamental requisite in any criminal proceeding across all jurisdictions. A deeper analysis reveals that Section 160 of the Code finds its home in Chapter XII of the Code. Chapter XII of the Code is titled as" Information to the Police and their powers to investigate". The first Section in this Chapter is Section 154 of the Code which deals with information given to the police with regard to commission of cognizable offences, what in common parlance is the First Information Report ("F.I.R"). Delving further into the contents of Chapter XII, we are met with the mandate of Section 155 of the Code which symmetrically deals with information given to the police with regard to commission of non-cognizable offences.
It is important to bear in mind that once the differences between a cognizable offence and a non-cognizable offence are determined, understood and harmonized, the statutory scheme of investigation and the powers vested in the police authorities under Chapter XII of the Code are the same with respect to all offences i.e. cognizable or otherwise. Thus, the purpose of the aforesaid discussion is to establish that Section 160 is only available to the police authorities and can only be triggered once Section 154 or Section 155, as the case maybe, has been resorted to and an F.I.R has been registered with regard to the commission of an offence. Thus, the legislative intent that the police, during the course of investigation can only issue a notice under Section 160 of the Code once the machinery of the Code through Chapter XII is set into motion is crystallized upon this analysis.
The pivot of this article is the prevalence of the legally untenable practice of police authorities to issue notices requiring attendance under Section 160 of persons acquainted with the facts of a police complaint received in the absence of an F.I.R having been lodged and registered. This leads to a very peculiar and undesirable situation with a multitude of issues. Our first argument is that such a practice is wholly untenable in law as the investigative machinery of Chapter XII of the Code is not at the disposal of the police till such time Section 154 of 155, as the case maybe, is pressed into service. Secondly the contents of such notices, do not mention any F.I.R details thus leading the noticee into a dark blind alley, such notices plainly direct the noticee to appear before a certain officer on a certain date and time without stating any details whatsoever pertaining to the case. Thirdly it increases, by several folds, the plight of the noticee who more often than not is a common man with no awareness or practical understanding of the correct legal provisions and the procedure that ought to be adhered to, in most cases, it is not even at the disposal of this common man to have access to the resources that would apprise him of the valid legal framework. Thus, adding not only to his plight but also subjecting him to harassment and trouble at the hands of the police authorities.
The said practice of issuing notices under Section 160 of the Code in the absence of an F.I.R or in cases where there is an F.I.R, without mentioning the details thereof have a formative effect on the options available to a noticee, A noticee, law knowing or otherwise would be well aware or advised to attend the call of the notice in all cases where an F.I.R has been registered, since all valid notices would provide the details thereof. The noticee would know that in the event of failure to attend, the penal application of Section 174 of the Indian Penal Code, 1860 would be attracted and would also know or be advised of his legal remedies against the notice in question. However, on the other hand, in cases where no details of the F.I.R are mentioned, it would be difficult to rightly advise the notice as to whether or not he is statutorily required to attend the call of the notice. The noticee is under this obligation only in cases of a valid notice under Section 160 of the Code which is issued pursuant to and clearly spells out the details of the F.I.R and not in simplicitor notices to appear in cases where an F.I.R has not been registered, this situation also assuages the bane of Section 174 of the Indian Penal Code.
At this juncture, it would be apposite to borrow strength from the decision of the Hon'ble High Court of Delhi in "Amandeep Singh Johar v. State of NCT of Delhi & Anr." being W.P.(C) 7608/2017. A Division Bench of the Delhi High Court was seized of a Writ Petition wherein the Petitioner had voiced his grievance of being regularly summoned to the police station to join investigation without even a single notice under Section 41A of the Code having been served upon him. It must be understood that even though Section 41A of the Code deals with cases where the arrest of a person is not required under the provisions of sub-section (1) of section 41 of the Code, the police issues a notice directing the person against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence, to appear before them, the underlying fallacy remains the same. Requiring people to appear in the absence of notices under Section 160 or in light of improperly issued notices under Section 160 amounts to harassment of the noticee and curtails the remedies available to him. The said judgment also takes serious objection to the practice of the police of not giving receipts of documents tendered by a person and their failure to make them a part of the police record. The said Writ Petition urged the Court to issue directions to the Delhi Police to frame fair and balanced rules with regard to issuance and services of notices under Section 41A and Section 160 of the Code.
The High Court took the view that the said Writ Petition raised issues of seminal importance and had a direct bearing on the rights of all persons who are called for enquires at the hands of the police. After extensive deliberations which involved a very critical and invaluable report having been prepared by the Learned Registrar General of the Delhi High Court, the Court laid down strict procedures to be adhered to by the Delhi Police with regard to the working of Sections 41A, 91 and 160 of the Code which were made mandatory in nature and also directed the Delhi Police to issue and publish a departmental circular directing strict compliance of the procedure laid down by the Court. The interesting facet that surfaces from the said judgment is that the Court has laid down a model format with regard to notices issued under Section 41A, 91 and 160 of the Code and the model format clearly mentions the notice to read the F.I.R/Case No. of the investigation proceedings. Thus, clearly highlighting that such a notice cannot be issued to a person in absentia of an F.I.R/Case No. being provided to the noticee.
The said direction of the Hon'ble High Court should not and ought not be read as an ordinary, what some may call "your everyday direction", the nature of this direction is based on a deep and profound bedrock. What the said ruling of the Delhi High Court attempts to achieve is that the public at large ought not to be harassed by the police authorities by being summoned to appear for enquiry under Section 160 of the Code in cases where there is no criminal proceeding instituted as yet. In cases, where such invalid notices are issued, unsuspecting noticees are left with no alternative but to appear without having any indication about the proceedings and when faced with constant harassment at the hands of the police authorities, there remains no recourse to proceed against the untenable and illegal notice under Section 160 of the Code. The fear of the ordinary citizen is heightened by the threat of penal application of Section 174 of the Indian Penal Code, 1860 which provides for the penalties in cases of non-obedience of orders of attendance such as the one in the nature of Section 160 of the Code.
A pit stop to revisit the law laid down by a Constitution Bench of the Supreme Court of India in "Lalita Kumari vs Govt.Of U.P.& Ors" reported as (2014) 2 SCC 1 would be of considerable value. The Supreme Court of India has stated in no unequivocal terms that in cases of information received by the Police with regard to the commission of any cognizable offence, there is no scope for such a police officer to conduct a preliminary enquiry and as such he must forthwith proceed to register an F.I.R. The only leeway given by the Supreme Court to the police authorities is to the extent that in certain categories of cases (which are illustrative and non-exhaustive in nature), the police authorities are empowered to conduct a preliminary enquiry limited only to the extent of determining whether or not the information so received discloses the commission of a cognizable offence, such an enquiry ought not to be conducted to determine the veracity of the information but only conclude the fact that the informations moulds into the commission of a cognizable offence. Thus, in cases where the police authorities undertake to initiate and conduct what we may term as the "Lalita Kumari Enquiry", any notices that are issued to any person to verify the commission of an offence ought not to borrow shelter from the stipulation and powers vested in the police by virtue of Section 160 of the Code, since an F.I.R has not yet come to be registered.
The Delhi High Court in Amardeep Singh Johar (supra) has indeed taken a stern and conscious step towards ensuring that all notices issued under Section 160 of the code and the other relevant sections, categorically mention the details of the F.I.R. The High has directed strict and mandatory compliance of the directions passed therein so that the Delhi Police as well as the public are made well aware of this minute yet seminally important detail amongst others. It is regrettable that in most cases, and more often than not, all over the rural and urban parts of the country, the police authorities are unaware of this mandate and casually proceed to issue notices under Section 160 of the Code to persons in cases where the crime is yet to be registered. The said misfortune not only plagues several towns, districts and cities in India but has also metastasized to major Metropolitan Cities wherein even the general public/legal fraternity is unaware of the legal semantics surrounding Section 160 of the Code, and the police authorities casually proceed to issue such notices sans application of mind and in a mechanical fashion. It is perhaps now expedient and more necessary than ever that this issue is addressed by the Supreme Court of India and directions with regard to strict and mandatory adherence to the legal procedure to be followed while issuing of such notices under the Code are laid down so as to ensure that the people at large are well aware of their rights and remedies and are not subjected to the arbitrary and harassing ways adopted by certain police officers by borrowing fictional strength from the provisions of the Code, in the same breath, it is equally imperative that police departments internally educate their officers so as to ameliorate any illegal and mechanical action on the part of the police.
In our analysis, the impetus necessary is that in cases where a notice under Section 160 of the Code is issued by the police, the police ought to clearly spell out the details of the F.I.R/Case No. There are a score of benefits that accrue basis this. An illustration would mend things in perspective, where a 160 notice delineates the details of the F.I.R, and assuming the same is issued to an accused/one of the accused and stipulates a period of two weeks for the noticee to appear before the police authorities in furtherance of the investigation, then the noticee in such a case is at liberty to exercise his legally permissible options within that time frame of two weeks against such a notice or the F.I.R. The accused/noticee could utilize that time period to seek quashing of the F.I.R in appropriate cases and could also pray for a stay of the investigation proceedings/stay of arrest. This example is relevant firstly because, in cases of cognizable offences, the accused/noticee is always vulnerable to an arrest by the police and secondly if the notice fails to give the details of the F.I.R, it would not only be difficult for the accused/noticee to exercise his legal rights but would also burden our already taxed Courts with unnecessary petitions seeking details from where such a notice originates. Further, it can never be the intention of the legislature or the Courts that there exists a period after the issuance of a 160 notice (one that fails to mention the details of the F.I.R) wherein the noticee/accused is handicapped to initiate any legal remedy available to him until call of the 160 notice is complied with. Thus, in appropriate cases, where a Section 160 notice is issued, it would also serve well, the interests of all, to provide a copy of the F.I.R to the noticee for him to optimally seek proper legal recourses and to choose from an array of legal options that maybe available to the noticee. We are confident that this line of thought is aligned in consonance with the intention of the legislature as well as the judicial directions issued by Courts that seek to widen the bandwidth of a person's legal rights and not curtail them.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.