Subject: Code of Criminal Procedur-I

B.A.LL.B-VIIIth Sem
Subject Teacher: Dr. Md. Junaid
Teaching Material of Unit-II-(A)(i)
Topic: Statement of Witness and Investigation

Statement of Witness and Investigation under CRPC- Section 160-Section-166

Sections 160-166 crpc deals with the various procedures that are undertaken before the trial in
any criminal case begins. These provisions are provisions related to investigation of a criminal
offence. It deals with various powers and limitations required during investigation.

Section 160 deals with 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.

Analysis of Section 160

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. 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. Non-compliance of summons u/s 160 CRPC is an
offence punishable under Section 174 IPC which provides that whoever, being legally bound to
attend in person or by an agent at a certain place and time in obedience to a summons, notice,
order or proclamation proceeding from any public servant legally competent, as such public
servant, to issue the same, intentionally omits to attend at that place or time, or departs from the
place where he is bound to attend before the time at which it is lawful for him to depart, shall be
punished with simple imprisonment for a term which may extend to one month, or with fine
which may extend to five hundred rupees, or with both, or, if the summons, notice, order or
proclamation is to attend in person or by agent in a Court of Justice, with simple imprisonment
for a term which may extend to six months, or with fine which may extend to one thousand
rupees, or with both.

It is quite clear from the language used in Section 160 of the Criminal Procedure Code, that a
police officer making an investigation has the power to summon only a person who is within the
limits of his own police station or within the limits of any adjoining police station. A police
officer has no power to summon a witness who is not within the aforesaid limits of the same
police station or any adjoining police station.

Therefore, if a witness is residing in a different state or in a different district or is an outside

witness, he cannot be summoned by the police officer conducting the investigation, to appear
before him. However, if the area, within which such witness is, comes within the limits of the
adjoining police station, even if that are may be in some other state or district, such witness may
be summoned by the police officer.

In this regard, it is pertinent to point out that in the case of Krishan Bans Bhadur v. State of
Himachal Pradesh, (1975), an order was issued under Section 160 of the Code of Criminal
Procedure requiring the petitioners to present themselves at Police Station Chhota Simla, District
Simla in connection with the investigation of a case. The order was served on them at New
Delhi. The petitioners were unable to attend at the Police Station in compliance with the order.
Consequently a charge sheet was submitted against the petitioners for an offence under Section
174 of the Indian Penial Code. In the circumstances, the Himachal Pradesh High Court held as
under:
“Clearly the petitioners are not guilty of any non-compliance with the orders issued under
Section 160 of the Code of Criminal Procedure. Section 160 empowers a police officer making
an investigation to 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 circumstances of the case and Section 160 adds, such person must attend as
so required. From the record of the present case it is apparent that when the orders under S. 160
of the Code of Criminal Procedure were issued the petitioners were not within the limits of the
police Station of the police officer issuing the order, nor of any adjoining station. The address
of the petitioners mentioned in the order indicates that they were present at New Delhi. There is
no evidence whatever to show that they were in Simla at all. Ex facie, the order under Section
160 of the Code of Criminal Procedure is without jurisdiction. The order did not proceed from a
public servant legally competent as such public servant to issue it. Accordingly no offence can be
said to have been committed within the purview of Section 174 of the Indian Penal Code.”

Section 161 and Section 162

Section 161 – Examination of witnesses by police

(1)Any police officer making an investigation under this Chapter, or any police officer not below
such rank as the State Government may, by general or special order, prescribe in this behalf,
acting on the requisition of such officer, may examine orally any person supposed to be
acquainted with the facts and circumstances of the case.

(2)Such person shall be bound to answer truly all questions relating to such case put to him by
such officer, other than questions the answers to which would have a tendency to expose him to a
criminal charge or to a penalty or forfeiture.

(3)The police officer may reduce into writing any statement made to him in the course of an
examination under this section; and if he does so, he shall make a separate and true record of the
statement of each such person whose statement he records.

Provided that statement made under this sub-section may also be recorded by audio-video
electronic means.
Provided further that the statement of a woman against whom an offence under section 354,
section 354A, section 354B, section 354C, section 354D, section 376, section 376A,
section2 376AB, section 376B, section 376C, section 376D, section 376DA, section 376DB,
section 376E or section 509 of The Indian Penal Code is alleged to have been committed or
attempted, shall be recorded, by a woman police officer or any woman office.

Section 162 – Statements to police not to be signed: Use of statements in evidence

(1)No statement made by any person to a police officer in the course of an investigation under
this Chapter, shall, if reduced to writing, be signed by the person making it; nor shall any such
statement or any record thereof, whether in a police diary or otherwise, or any part of such
statement or record, be used for any purpose, save as hereinafter provided, at any inquiry or trial
in respect of any offence under investigation at the time when such statement was made:

Provided that when any witness is called for the prosecution in such inquiry or trial whose
statement has been reduced into writing as aforesaid, any part of his statement, if duly proved,
may be used by the accused, and with the permission of the Court, by the prosecution, to
contradict such witness in the manner provided by section 145 of the Indian Evidence Act, 1872
(1 of 1872); and when any part of such statement is so used, any part thereof may also be used in
the re-examination of such witness, but for the purpose only of explaining any matter referred to
in his cross-examination.

(2)Nothing in this section shall be deemed to apply to any statement falling within the provisions
of clause (1) of section 32 of the Indian Evidence Act, 1872 (1 of 1872), or to affect the
provisions of section 27 of that Act.

Analysis of Section 161 and Section162

The procedure for examination of witnesses by the police is provided in ss. 161 and 162 Cr.P.C.
It provides for the recording of statements of all those persons who are acquainted with the facts
and circumstances of the case, directly or indirectly, and the use to which they may subsequently
be put in the trial. Under s. 161, a police officer making an investigation can examine the person
acquainted with the facts of the case, and reduce the statement made by such person into writing.
No oath or affirmation is required in an examination under this section. Persons to be examined
include whosoever may subsequently be accused of the offence in respect of which the
investigation is made by the police officer. It is obligatory on a person examined in the course of
a police investigation to answer all questions put to it "other than questions the answers to which
would have a tendency to expose him to a criminal charge or to a penalty or forfeiture." The
person questioned is legally bound to state the truth.

The Criminal Procedure Code as well as the Police Manual lays down the manner in which the
statements are required to be recorded. Sub-section 3 of s. 161 Cr.P.C. prohibits the making of
precis of a statement of a witness or merely recording that one witness corroborates another. The
statement, if recorded, must be recorded as made and should not be in indirect form of speech.
The writing should be a record in the first person. The recordings shall be recorded in vernacular
and signed and dated by the officer recording it.

Section 161 Code of Criminal Procedure, 1973 (for short ‘Cr.P.C.’) titled “Examination of
witnesses by police” provides for oral examination of a person by any investigating officer when
such person is supposed to be acquainted with the facts and circumstances of the case. The
purpose for and the manner in which the police statement recorded under Section 161 Cr.P.C can
be used at any trial are indicated in Section 162 Cr.P.C. Object and purpose of section 161 is to
collect evidence regarding commission of an offence by examining and recording the statements
of the witnesses material in respect of commission of the offence. Signing of statement under
section 161 is prohibited under section 162., it is prerogative of police officer to record the
statement of a witness examined.

Delay in recording of statement of witnesses does not necessarily discredit their testimony, if
they are cogent and credible and delay is explained to the satisfaction of Court in case of Harbeer
singh vs sheeshpal (2016) , SC observed that delay in recording of statements of the prosecution
witnesses under Section 161 Cr.P.C., although those witnesses were or could be available for
examination when the Investigating Officer visited the scene of occurrence or soon thereafter
would cast a doubt about prosecution case.

The language of section 162 Cr.P.C., is plain and explicit and it admits of no doubt as to its
meaning. Section 162 criminal Procedure Code lays down the restricted use of such statements
prohibiting the court from using them as corroborative of the statements in court. The reasons for
the prohibition of the use of the statement made before police during the course of the
investigation for the purpose of corroboration is that the police cannot be trusted for recording
the statement correctly and as they are often taken down in a undetermined manner in the midst
of confusion. To bring the statements with in ambit of section 162 of Cr.P.C., it must not merely
be made during the period of investigation but must be made in course of investigation. The
words during imply that the statement must be made as a step in a pending investigating. The
two things that the period of investigation and course of investigation are not synonymous. The
statement must be an ascribable to the enquiry conducted by the investigating officer or to any
other officer and not one which is de hors. So the other statement though made during the time of
investigation were going on, is not hit by the prohibitory rule of section 162 of Cr.P.C. therefore
such a statement can be used for corroborating or contradicting purposes according to normal
rules of evidence contained in section 157 and 145 of Evidence Act.

In Baleshwar Rai Vs State of Bihar(1962) it was held that “section 162 of the Criminal Procedure
Code only bars proof of statements made to an investigating officer during the course of
investigation. section 162 of CR.PC does not say that every statement made during the period of
investigation is barred from being proved in evidence. For a statement to come within the
purview of section 162 it must not merely be made during the period of investigation but also
during investigation. The two things, that is, "the period of investigation" and "'course of
investigation' are not synonymous. Section 162 is aimed at statements recorded by a police
officer while investigating into an offence. This is clear from the opening words section 162.
They speak only of statements made to a police officer during the course of investigation. This
implies that the statement sought to be excluded from evidence must be ascribable to the enquiry
conducted by the investigating officer and not one which is de hors the enquiry. A
communication like Ext. 6 will not fall within the ambit of such statements. In this view we hold
that the document in question is not hit by section 162 of the Criminal Procedure Code and the
High Court was right in admitting it in evidence. ”

Prohibition under Section 162 CrPC against signing of the statement of witnesses recorded
during investigation has its origin in the historical distrust about faithful recording of statements
by the investigating officers. This practice helps the untruthful police officers to mould
statements in the way they like, sometimes to the utter dismay of the witnesses. This becomes
possible because of Section 162 CrPC which helps the accused to contradict the witness if during
trial in court the witness comes to make contradictory statement. And it is not impossible for the
police to record contradictory statement even in the case of a truthful witness who must have said
the same thing to the police as well as in the court. This statement in the case diary often helps
the accused to get acquitted if the court does not handle the issue carefully. This becomes evident
from examination of some recent decisions of the courts.

According to sub-s. 2, section 162 does not affect the provisions of s. 27 of the Indian Evidence
Act and therefore information leading to the discovery of a fact made to the police and
admissible under s. 27 of the evidence act, is not rendered inadmissible under this section. As
also s. 162 does not affect a dying declaration recorded during investigation u/s. 32 of the lEA
and thus is admissible in evidence.

The decision of the Supreme Court in the case of Harkirat Singh v. State of Punjab (1997),
provides an instance where the court may acquit an accused because of the infirmity in recording
the statements. In this case the FIR alleged accused Harkirat Singh only being armed with a
pistol and having fired a shot leading to the death of Khairati Ram. It was mentioned that the
other accused persons had no firearm with them. The informant Walaiti Ram died before he
could be examined by the trial court. Only PWs 4 and 5 had supported in court the prosecution
version regarding accused Harkirat Singh having shot the victim leading to his death. But the
case diary indicated that both these witnesses had stated before the police that Harkirat Singh
was armed with a dang (stick) and that one of the other accused Raghbir Singh had a pistol and
that he fired at the deceased. The trial court acquitted the four accused persons but convicted
Harkirat Singh.

The High Court confirming the conviction of Harkirat Singh discarded the said contradictory
statement of these witnesses in the case diary. While allowing appeal of Harkirat Singh, the
Supreme Court observed:

"In our considered view, the High Court was not justified in treating the statement allegedly
made by Kharaiti Lal during inquest proceedings as substantive evidence in view of the embargo
of Section 162 CrPC. Equally unjustified was the High Court's reliance upon the contents of the
FIR lodged by Walaiti Ram who, as stated earlier, could not be examined during the trial as he
had died in the meantime. The contents of the FIR could have been used for the purpose of
corroborating or contradicting Walaiti Ram if he had been examined but under no
circumstances as a substantive piece of evidence.”

In Ishari Singh v. State of Rajasthan(1997) Yudhistar, one of the occupants of a car lodged FIR
alleging that due to negligent driving by Dharamveer, the driver, the car turned upside down
causing death of the other occupant Hanuman Singh. But during the course of investigation the
said informant filed an application before the investigating officer stating that a truck had hit the
car from behind whose number could not be known. The statement under Section 161 CrPC of
other witnesses also came to allege the accident due to hitting of the car by the truck. The police
submitted final report exonerating the driver. However, the CJM took cognizance under Sections
279, 337 and 304-A IPC.

The Sessions Judge in revision set aside the order taking cognizance of the offences. The
aggrieved petitioner took the matter before the High Court. The High Court justified the order of
the Sessions Judge on various grounds including the following which is material for discussion
here:

"At this stage all that can be done is to point out the disparity between the version given in the
first information report and the version given in the statement recorded under Section 161 of the
Criminal Procedure Code. The latter (sic) is relevant for proceeding under Section 204 of the
Criminal Procedure Code because it supersedes the former and is likely to be adhered to if the
deponent is examined in the Court."

The Judge came to discard the statement in the FIR and preferred to rely on the statement of the
witnesses recorded under Section 161 CrPC because in the opinion of his Lordship the latter
statement even though contradictory "supersedes the former and is likely to be adhered to" in
trial.

Again, there is no rule or ruling that the statement in the FIR is superseded by the contrary
statement of witnesses made under Section 161 CrPC. Rather the Supreme Court had occasion to
caution the Court to be vigilant against the motivated or unfair dealings of the investigating
officers during the course of investigation.
In the case of Karnel Singh v. State of M.P(1995), the Supreme Court said:

"In cases of defective investigation the court has to be circumspect in evaluating the evidence but
it would not be right in acquitting an accused person solely on account of the defect; to do so
would tantamount to playing into the hands of the investigating officer if the investigation is
designedly defective."

The statements of witnesses recorded by police under section 162 Crpc during investigation
cannot be used for seeking corroboration or assurance for the testimony of a witness in court. It
may be made clear that if the statements recorded by the police used by the party it could be used
only for contradicting the prosecution witnesses and for no other purpose. Such statements
cannot be used for seeking corroboration or assurance for the testimony of the witnesses in court.

Dandu Lakshmi Reddi vs. State of A.P. (AIR 1999), it was observed that Section 162 of the Code
of Criminal Procedure (for short the Code) interdicts the use of any statement recorded under
Section 161 of the Code except for the limited purpose of contradicting the witness examined in
the trial to whom such statement is attributed.

in Raghunandan Vs. State of U.P., (AIR 1974), SC held that power of the court to put questions
to the witness as envisaged in Section 165 of the Evidence Act would be untrammeled by the
interdict contained in Section 162 of the Code. SC observed:

“We are inclined to accept the argument of the appellant that the language of Section 162
Criminal Procedure Code, though wide, is not explicit or specific enough to extend the
prohibition to the use of the wide and special powers of the Court to question a witness,
expressly and explicitly given by Section 165 of the Indian Evidence Act in order to secure the
ends of justice. Therefore, we hold that Section 162 Criminal Procedure Code does not impair
the special powers of the Court under Sec. 165 Indian Evidence Act”.

In Rajendra singh vs. State of U.P – (2007) it was observed”

“a statement under Section 161 Cr. P. C is not a substantive piece of evidence. In view of the
provision to Section 162 (1) CrPC, the said statement can be used only for the limited purpose of
contradicting the maker thereof in the manner laid down in the said proviso. Therefore, the High
Court committed a manifest error of law in relying upon wholly inadmissible evidence in
recording a finding that Respondent 2 could not have been present at the scene of commission of
the crime.”

In Baldev Singh vs State Of Punjab, (1991) SC observed that the statement recorded under
Section 161 of the CrPC shall not be used for any purpose except to contradict a witness in the
manner prescribed in the proviso to Section 162 (1) and that the first information report is not a
substantial piece of evidence.

In Appabhai Vs State of Gujarath (AIR 1988) the Supreme court has observed that the court
while appreciating the evidence must not attach undue importance to minor discrepancies. The
discrepancies which do not shake the basic version of the prosecution case may be discarded.

Section 163 - No inducement to be offered

(1)No police officer or other person in authority shall offer or make, or cause to be offered or
made, any such inducement, threat or promise as is mentioned in section 24 of the Indian
Evidence Act, 1872 (1 of 1872).

(2)But no police officer or other person shall prevent, by any caution or otherwise, any person
from making in the course of any investigation under this Chapter any statement which he may
be disposed to make of his own free will:

Provided that nothing in this Sub-Section shall affect the provisions of Sub-Section (4) of section
164

Section 163 bars any kind of threat and influence by the police. Sub-section (1) of section 163 of
the code of Criminal Procedure, read with section 24 of the Indian Evidence Act, provides that if
a confession is caused by any such inducement, threat or promise, offered or made, or caused to
be offered or made by a police officer or person in authority in reference to the charge against the
accused person (then if in the opinion of the court the inducement or threat or promise was) as is
sufficient to give the accused person grounds, which would appear to him reasonable for
supposing that by making the confession he would gain any advantage or avoid any evil of a
tamporal nature in reference to the proceedings against him, then unless in the opinion of the
Court the impression caused by such inducement, threat or promise has been fully removed such
confession is irrelevant, that is, it cannot be used as evidence in any criminal proceedings.

Under sub-section (2) of section 163 of the Code of Criminal Procedure, for a confession of an
accused person made in the course of a police investigation to have any value, it must be one
which the accused person was disposed to make of his own free will. Before recording any such
confession the Magistrate is bound to question the accused person to that effect, and, unless upon
such questioning he has reason to believe that the confession is voluntary, he should not make
the memorandum required under section 164 at the foot of the record.

Section 164A – Medical examination of the victim of rape

Section 164A has been inserted in CrPC in 2005. It provides:

1. Where, during the stage when an offence of committing rape or attempt to commit rape is
under investigation, it is proposed to get the person of the woman with whom rape is
alleged or attempted to have been committed or attempted, examined by a medical
expert, such examination shall be conducted by a registered medical practitioner
employed in a hospital run by the Government or a local authority and in the absence of
such a practitioner, by any other registered medical practitioner, with the consent of such
woman or of a person competent to give such consent on her behalf and such woman
shall be sent to such registered medical practitioner within twenty-four hours from the
time of receiving the information relating to the commission of such offence.

2. The registered medical practitioner, to whom such woman is sent shall, without delay,
examine her person and prepare a report of his examination giving the following
particulars, namely-

I. the name and address of the woman and of the person by whom she was brought;

II. the age of the woman;

 III. the description of material taken from the person of the woman
for DNA profiling;

IV. marks of injury, if any, on the person of the woman;

V. general mental condition of the woman; and

VI. other material particulars in reasonable detail,

3. The report shall state precisely the reasons for each conclusion arrived at.

4. The report shall specifically record that the consent of the woman or of the person
competent, to give such consent on her behalf to such examination had been obtained.

5. The exact time of commencement and completion of the examination shall also be noted
in the report.

6. The registered medical practitioner shall, without delay forward the report to the
investigating officer who shall forward it to the Magistrate referred to in section 173 as
part of the documents referred to in clause (a) of Sub-Section (5) of that section.

7. Nothing in this section shall be construed as rendering lawful any examination without
the consent of the woman or of any person competent to give such consent on her behalf.

The woman against whom the offence of rape has been committed shall be sent for medical
examination within 24 hours of receiving the complaint. The medical examination shall be
conducted with the consent of the victim or with the consent of a competent person on her
behalf.

In Samira Kohli v. Dr. Prabha Manchanda and Another (2008), Supreme Court held that the
person giving the consent must be competent to give consent and it must be voluntary and based
on adequate information provided by the doctor, like nature of the treatment, all the risks
involved etc.
To supplement the procedure laid in Section 164A, after the Nirbhaya case, Ministry of Health
and Family Welfare in 2014 gave certain guidelines and protocols for medico legal care for the
victims of sexual violence:

1. Basic details and Consent: Medical examiner shall record the name, age, address,
sex, name and relationship of the person who brought the rape victim/ survivor and
the consent of the victim
2. Before taking the consent of the victim, victim shall be informed of the nature of
medical examination. Only in life threatening cases, the doctor may proceed with the
examination without the consent as given in Section 92, IPC.
3. Identification marks: Two marks of identification should also be recorded, for
example moles, scars or any mark.
4. Menstrual and vaccination history is to be recorded, and if the victim is
menstruating at the time of the examination then a second examination is required on
a later date in order to record the injuries clearly.
5. History of incidence: Medical examiner shall record the history of the incidence in
survivor’s own words, which shall have evidentiary value in court of law. If the
history is narrated by a person other than the survivor, his/her name shall be noted.
6. Details of the clothing, medical and surgical history should be recorded.
7. General Physical examination: response to doctor’s questions, space and time
awareness, pulse rate, blood pressure, temperature, pupil and stain or semen mark on
the clothes of the victim should be examined and recorded.
8. Examination of injuries: the entire body surface should be examined for any
injuries, fractures, nail abrasions, teeth bite marks, cuts, boils, lesions, any discharge,
weapon infection or stain on the body and shall be recorded with particular details of
these injuries.
9. Examination of genital parts and orifices: External genital area and Perineum is
observed for evidence of injury, seminal stains, stray pubic hair, foreign material.
Sample of pubic hair, and matted pubic hair is taken and preserved.
10. Examination of vagina is done with the help of sterile speculum lubricated with warm
saline/ sterile water to check the internal bleeding, bruises or any injuries. Such
 examination is not required in cases of minor where there are no signs of penetration
or visible injuries. If at all the examination is required, it shall be done under the effect
of anaesthesia.
11. Two- Finger Test: Per vaginum examination must not be conducted for establishing
rape/sexual violence and the size of the vaginal introitus has no bearing on a case of
sexual violence. The guideline was given after the Supreme court’s judgement which
held that the test is a violation of a woman’s right to privacy. The two finger test, is a
way to determine whether the hymen of the woman is intact or not.it is based on the
assumption that hymen can rupture only when a female undergoes sexual intercourse.
The method is unscientific, against human rights and has no bearing on determination
of commision of rape.
12. Any injury, swelling, bleeding, discharge or stain near anus, anal opening and oral
cavity should be examined and recorded.
13. Collecting samples: if requested by police, radiographs of wrist, elbow, shoulders,
dental examination etc. are be advised to be collected for age estimation.
14. Urine sample: to determine the pregnancy
15. Blood test: blood sample is collected for evidence of baseline HIV status, VDRL and
HbsAg
16. Post examination: After examination, medical practitioner should document the
report, formulate opinion and sign the report. A copy of report must be given to the
survivor, as it is her right to know about the information.
17. All the evidences collected during the examination, like clothes of he woman, swabs
from vagina, anal opening etc, pubic hair sample, foreign material, nail scrapings,
swab sticks along with the report must be placed in an envelope and handed over to
the police or judicial magistrate.

Lillu @ Rajesh & Anr vs State Of Haryana (2013) SC held that held that the two finger test is
unscientific and it violates woman’s right to privacy, physical and mental integrity and dignity.
Two- Finger Test also called, per vaginum examination is a way to determine whether the hymen
of the woman is intact or not.it is based on the assumption that hymen can rupture only when a
female undergoes sexual intercourse. The method is unscientific, against human rights and has
no bearing on determination of commission of rape.

Section 165-Search by police officer.-

(1) Whenever an officer in charge of police station or a police officer making an investigation
has reasonable grounds for believing that anything necessary for the purposes of an investigation
into any offence which he is authorised to investigate may be found in any place within the limits
of the police station of which he is in charge, or to which he is attached, and that such thing
cannot in his opinion be otherwise obtained without undue delay, such officer may, after
recording in writing the grounds of his belief and specifying in such writing, so far as possible,
the thing for which search is to be made, search, or cause search to be made, for such thing in
any place within the limits of such station.
(2) A police officer proceeding under sub-section (1), shall, if practicable, conduct the search in
person.
(3) If he is unable to conduct the search in person, and there is no other person competent to
make the search present at the time, he may, after recording in writing his reasons for so doing,
require any officer subordinate to him to make the search, and he shall deliver to such
subordinate officer an order in writing, specifying the place to be searched, and so far as
possible, the thing for which search is to be made; and such subordinate officer may thereupon
search for such thing in such place.
(4) The provisions of this Code as to search-warrants and the general provisions as to searches
contained in section 100 shall, so far as may be, apply to a search made under this section.
(5) Copies of any record made under sub-section (1) or sub-section (3) shall forthwith be sent to
the nearest Magistrate empowered to take cognizance to the offence, and the owner or occupier
of the place searched shall, on application, be furnished, free of cost, with a copy of the same by
the Magistrate.

Analysis of Section 165

Section 165 of CrPC provides for the circumstances and the way in which search is carried out
by a Police Officer. A police officer while making an investigation should have reasonable
grounds for believing that something very necessary for the purpose of investigation into an
offense which he is authorized to investigate may be found in any place within the local limits of
the police station in which he is in charge. He is also required to make a record in writing
specifying his grounds of belief and why the search was conducted within the limits of such
station.

Section 165 Cr. P.C. authorities a police officer making an investigation to search a place if he
thinks fit i.e. if he has sufficient ground to believe that anything necessary for the purpose of
investigation may be found in that place which is to be searched. An officer in charge of police
station or a police officer not being below the rank of sub-inspector making an investigation may
require an officer in charge of another police station, whether in the same district or a different
district to cause a search to be made, within the limits of his own station.

Section 100 primarily provides for the provision relating to searches. This section provides the
right of free ingress in the case of closed premises on demand and on the production of the
search warrant by the police officer. It also ensures that searches are conducted fairly and
squarely.

The provisions of this section are mandatory are meant to authorise the police officer making an
investigation to conduct a general search on the chance that something relevant to the
commission of the offence may be found. But the Police officer must record in writing the
reasons for his making a search. He must clearly record the grounds of his belief and
specification of the thing for which search is to be made. Omission to mention these grounds
would amount to gross violation of the provisions of this section.

The other provisions of this Code as to search warrant and general provisions as to searches
contained in Section 100 Cr PC shall so far as may be, applicable to a search made under this
section.
The search contemplated under this section must be for particular things, documents or specified
materials necessary for the purpose of investigation. The section does not permit a general
search.

Thus where a police officer searches a house for stolen articles generally not for any particular
article mentioned by the complainant as having been stolen from him, such a search would be
considered as a general search and hence not permissible under this section.

As far as possible, a search under Section 165 should be made personally by the police officer
and he should avoid it to be made by his subordinate officer. It is only in exceptional cases that
he may authorise his subordinate officer to make a search under Section 165. But a search made
by a subordinate officer without proper authority would be wholly illegal. The authorization
should be in writing.

The Supreme Court in Radha Kishan v. State of UP (1962) held that resistance by the person
whose premises were sought to be searched was justified when the search was being made by the
police officer in contravention of Sections 100 and 165 of the Cr. P.C. But the Apex Court
observed that even if the search is illegal it does not justify any obstruction or any criminal act
against the officer conducting the search after search and seizure are complete.

Illegality of a search will not affect the articles or recovery of articles and subsequent trial cannot
be vitiated only on this sole ground.

Search of a place without warrant

Section 165 prescribes procedure undertaken by a police officer to search a place without a
warrant. It states that whenever an officer in charge of a police station or any police officer
making an investigation has reasonable grounds to believe that in the process of investigation,
there are some things necessary for an offence, which he is authorised to investigate within the
local limits of his police station without unnecessary delay, can search even without a search
warrant. He is also required to specify the reason for such a search, cause of search, etc. Section
165(3) provides that where a police officer is unable to conduct the search in person, and there is
no other person competent to carry out the search at the time, then he may after recording in
writing his reasons for so doing, require any officer subordinate to him to make the search. The
senior authorizing for the same has to give the subordinate officer an order in writing, specifying
the place of search, the reason for which the search is made and subsequent to this the
subordinate may thereupon search for such thing in such place. The copies made by the police
officer undertaking search shall be sent to the nearest Magistrate empowered to take cognizance
of the offense. On the application of the owner or occupier of the place searched shall be
furnished, free of cost with a copy of the same by the Magistrate.

Search by a police officer during the investigation

The procedure adopted by a police officer during the search in an investigation is provided in
Section 165. Section 165(1) provides that whenever an officer in charge of a police station or a
police officer making an investigation in a particular matter has reasonable grounds for believing
that anything necessary for the investigation into any offense on which he is authorized to
investigate may be found in any place within his local limits and that thing according to him be
otherwise obtained without unnecessary delay. Such officer may record the grounds of his belief
in writing and prescribing in such writing the thing for which the search is made, or cause a
search to be made with the local limits of his station. Section 165(2) authorize the police officer
to conduct the search in person. Section 165(3) states that if he is unable to conduct the search in
person, he may after recording in writing the reason for so doing authorize a person subordinate
to him to conduct search. Section 165(4) says that all the general conditions regarding the search
warrant will be applied to this section as contained in Section 100. Section 165(5) provides that
copies of the record made in sub-section (1) and (2) should be sent to the Magistrate who is
empowered to take cognizance of the offence. The owner or occupier of the premises can also,
on the application, be provided with a copy of the same that is present with the Magistrate,
without any cost.

In state of Himachal Pradesh v. Sukh Ram (2002), recovery of 54 bottles of liquor from the
conscious possession of the accused was proved on the record beyond any reasonable doubt and
nothing had come on record to show as to what prejudice has been caused to the accused due to
non-compliance of the provisions of Section 165 of the Code and, therefore, there is no reason to
hold the search illegal.
The Supreme Court, in State of Punjab v. Balbir Singh(1994) has expressed a view that in a case
coming under NDPS Act, if a police officer comes across a person in possession of narcotic
drugs or psychotropic substances, he may make search himself if empowered under the NDPS
Act or in the alternative, he may inform the empowered officer, who would make search under
the Act. But if the search has already been completed in course of investigation under Section
165 Cr. P.C., then the question of complying with provisions relating search as contained in
Section 50 of NDPS Act would not arise at all.

In several cases, the constitutional validity of search warrant has been questioned. For instance,
in the case of V. S. Kuttan Pillai v. Ramakrishnan (1975), wherein it was opined by the court that
a search of the premises occupied by the accused does not amount to compulsion on him to give
evidence against himself and hence was not violative of Article 20(3) of the Constitution of
India.

Section 166 of CRPC "When officer in charge of police station may require another to issue
search warrant"

(1) An officer in charge of a police station or a police officer not being below the rank of sub-
inspector making an investigation may require an officer in charge of another police station,
whether in the same or a different district, to cause a search to be made in any place, in any case
in which the former officer might cause such search to be made, within the limits of his own
station.
(2) Such officer, on being so required, shall proceed according to the provisions of section 165,
and shall forward the thing found, if any, to the officer at whose request the search was made.

(3) Whenever there is reason to believe that the delay occasioned by requiring an officer in-
charge of another police station to cause a search to be made under sub-section (1) might result
in evidence of the commission of an offence being concealed or destroyed, it shall be lawful for
an officer in-charge of a police station or a police officer making any investigation under this
Chapter to search, or cause to be searched, any place in the limits of another police station in
accordance with the provisions of section 165, as if such place were within the limits of his own
police station.

(4) Any officer conducting a search under sub-section (3) shall forthwith send notice of the
search to the officer in charge of the police station within the limits of which such place is
situate, and shall also send with such notice a copy of the list (if any) prepared under section 100,
and shall also send to the nearest Magistrate empowered to take cognizance of the offence,
copies of the records referred to in sub-sections (1) and (3) of section 165.

(5) The owner or occupier of the place searched shall, on application, be furnished free of cost
with a copy of any record sent to the Magistrate under sub-section (4).

Analysis of Section 166

Section 166 provides the conditions under which the search is conducted in the limits of another
police station. Sub-section(1) states that an officer in charge of a police station or a police officer
not below the rank of sub-inspector making an investigation may if he requires an officer of
another police station whether in the same or different district to cause a search to be made in
any place within the limits of the former officer’s jurisdiction. Sub-section(2) the officer shall
now carry out the search according to the provisions of Section 165 and forward the thing found
on such search to the police officer at whose request the search is made. Sub-section (3) permits
an investigating officer who belongs to one police station to search any place that belongs to the
limits of another’s police station in certain emergency situations. The one that has been expressly
mentioned is when there is a possibility of delay in requisitioning the services of police
personnel of another police station and if such delay can destroy the very purpose of the search.
Sub-section (4) says that the officer in charge of conducting the search has to send a notice of
search to the officer within whose local jurisdiction such place is situated and shall also send a
copy of the notice to the nearest Magistrate. Sub-section (5) says that on the application of the
owner of the premises of the place searched, he shall be provided a free copy of the said notice
that was sent to the Magistrate.

Seizure
The act of seizing is well known as a seizure. It is an action coupled with force in which an
object or person is suddenly taken over, grabbed, removed, or overwhelmed.

Search and seizure is also an essential stage in the process of effective investigation. There are
two methods in which police can affect search and seizure. One under a warrant which is issued
under any of the provisions of Sections 93, 94, 95, and 97 and the other is without a warrant
under any of the provisions of Sections 103, 165 and 166 of CrPC.the basic provisions as to
search and seizure are laid down in Section 100 of CrPC. The procedure set out in the section is
generally followed in offenses committed under the Indian Penal Code as well as in special and
local laws with a little variance. Thus, in all situations of search and seizure, the investigating
police should follow the procedures laid down under Sections 100 and 165 CrPC. Section 102
provides the power of police officers to seize certain property.

The police may have to effect search and seizure in one or more places. One at the scene of the
crime and the other at places where the persons involved in crime are hiding and places where
the incriminating articles to crime are kept or concealed.

As soon as a crime is committed at a place, the police officer arrives at the scene of the crime
and as a golden rule he should not alter with the position of the crime scene, pick up or even
touch anything without being properly described in an official note and photographed.

It is his duty to ensure that there is no interference with the crime scene. He shall also not allow
an unauthorized person to meddle in the inspection of the scene. He has to make sure that there is
not much crowd at the place of the scene as there may be a possibility of distortion of evidence
or clues. He should inquire about the person who came first to the place. He should not leave the
process of investigation solely on his subordinates, especially those who are untrained. These are
some of the precautions that a police officer has to take care of while carrying out the process of
search and investigation. Like the above procedures, many are established in the Code of
Criminal Procedure which is discussed later in this article.

For the purpose of any investigation, inquiry or trial, the production of things and documents is
necessary, in respect of which search and seizure of property are affected. It is a general rule that
the freedom and liberty of private citizens should not be sacrificed unless it becomes necessary
in the larger interests of the section of the society for the purpose of investigation, inquiry and
trial.

Usually, an “Investigation” is conducted by a police officer or by any other authorized person

(other than a magistrate). It includes all the proceedings under the criminal procedure code for
the collection of evidence. “Inquiry” means an act asking for information conducted by a
Magistrate or a court and it does not include trial. “Trial” is not defined anywhere in the Code.
Basically, it means that the judicial process where the question of guilt or innocence of the
person accused of any offense is determined.

Search and Seizure At Different Places Under Sections 165 And 166 Read With Section 100
CRPC

Section 165 CrPC is enacted as an exception to this general law of searches because it is
recognized that in certain exceptional emergencies it is necessary to empower responsible police
officers to carryout searches without first applying to the courts for authority. The legislature has,
however, attempted to restrict and limit the powers of the police under the section and provided
the concerned citizens with safeguards in order to prevent the abuse of the powers. As set out in
Section 165 CrPC an officer-in-charge of a police station or an investigating officer, having
reasonable grounds for believing that anything necessary for the purpose of investigation of any
offence which he is authorized to investigate may be found in any place within the limits of the
police station of which he is in charge or to which he is attached and that such thing cannot in his
opinion be otherwise obtained without undue delay, may search the place. Before making the
search, the investigating police officer must record his grounds of his belief; specify therein the
thing for which the search is made. This is known as “record of reasons.” If the investigating
police officer is unable to conduct the search in person, he may require any officer subordinate to
him to make the search, after recording in writing his reasons for so doing. The subordinate
police officer so deputed should be given order in writing specifying the place where and the
thing for which the search is to be made. Copies of records made above should be sent to the
nearest Magistrate empowered to take cognizance of the offence. When a search has to be
conducted in the jurisdiction of another station, whether in the same or a different district, an
officer- in- charge of a police station making an investigation may require under sub-section (1)
of Section 166 CrPC, the officer- in- charge of the former station to make a search or cause
search to be made. But, where there is reason to believe that the delay occasioned by such a
procedure might result in evidence being concealed or destroyed, the investigating police officer
may, under sub-section (3) of the Section 166 of CrPC, make the search himself or cause the
search to be made, in which case, he shall forthwith send a notice of the search together with a
copy of the list prepared under Section 100 CrPC to the officer- incharge of the police station,
within the limits of which the place searched is situated and to the nearest Magistrate empowered
to take cognizance of the offence. Under section 166 A of CrPC the investigating police officer
is empowered to write a letter to the competent authority for investigation in a country or place
outside India.

Probable Questions

1. Explain briefly the procedures set out in Section 165 and Section 166 of CrPC as
to the procedures of search to be followed by the police.
2. Discuss various procedures for examination of witness.
3. Explain the concept of Search and Seizure under CRPC.