The moment a crime is notified to the police, criminal investigation process sets into motion, collecting evidence, preserving and analysing them, to interviews and interrogation of persons, the process involves different types of investigative stages. Gathering information in relation to an offence from persons aware of facts and circumstances is of vital importance, yet the process of interviews and examination is anything but smooth. It cannot be denied that often people are vary in coming forth with any knowledge they possess about a crime. The distrust and the apprehension against the law enforcement system, involvement as a witness in lengthy legal battle and often also the fear of life from perpetrators of crime deter persons from coming forward with vital informations.
Section 160 Criminal Procedure Code (CrPC) India, empowers the police to summon a witness and share relevant information pertaining to the case. The said section specifically deals with examination of witnesses i.e persons acquainted with facts of case.
So, when does the investigating police summon the witness to police station for examination? The power under this section (section 160 CrPC) shall be exercised by the police officer only after commencement of investigation (Parchuri Ramakoteswara Rao vs Addl. Director General Of Police (2012)2 ALD (Cri) 498).
Prior to notifying a crime to police and police entering the same in records, investigation stage doesnot begin. In Cognizable offences (serious offences) the police begins investigation under section 156 CrPC without an order of Magistrate once an FIR is registered. It also investigates non Cognizable Offences (less serious in nature) under order of Magistrate as per section 155 CrPC. The Magistrate may also order the police to investigate any offence , under section 156(3) CrPC. It is only when the investigation of offences begins as detailed above , that the power of police to summon a person under section 160 CrPC comes into effect.
Does the law mandates any specific process to be followed? Yes, to check any abuse of power, according to the law under section 160 CrPC, it is the police officer investigating the offence that Orders the witness to attend the police station for assistance in investigation and most importantly it is mandatory that such order needs to be in writing. Further such written order summoning a witness is to be issued within the limits of the police station of the investigating police officer or within the limits of any adjoining police station.
Whether a witness to whom such notice is issued is includes an accused? The legislature through section 160 CrPC has aimed at procuring vital information from only witnesses regarding offence, to aid in giving a definitive direction to the investigation. An accused cannot be examined as a witness and cannot be asked to give evidence either for or against himself and implicate himself. Thus an accused is not included in class of persons referred to in this section.
The law also safeguards few categories of people against being summoned to police station for examination as witnesses;
- A male under age of 15 years and above 65 years,
- A woman,
- Mentally or physically disabled person.
Thus, a woman too is included in the category of exceptions above and does not need to report to the police as a witness for examination. The examination is to take place at the residence of the witness if so desired.
What if the person who is notified of interview under this section does not co-operate and denies being examined? The question that arises is , what is the recourse available to police . Can the police use force, in such scenario?
This marks the core difference between power of police Under Section 160 of CrPC to call a witness and the power to summon an accused under section 41A of CrPC. If the person under section 160 does not obey the notice, no provision is provided for forceful attendance of such person, whereas under section 41A when an accused is summoned, police can use force to bring the accused at police station.
Although proper assistance by any person in crime investigation is of utmost importance, yet police cannot use force for compelling attendance of such person. So what action under law can be taken against such person? Where a person defies police summons under section 160 CrPC, such person is liable to be punished under section 174 Indian Penal Code, which prescribes a punishment of imprisonment or fine or both.
Another question arises is that how long can the police retain a person at police station who has come in answer to notice under section 160 CrPC? The law does not empower a police to retain a witness. Hon’ble Calcutta High Court in ‘Mahendra Jain (Patna) And Etc vs Union Of India And Etc 2003 CriLJ 1464’ held that incase a person is detained under the garb of interrogation for prolonged period, such person could be treated at par with accused and it will amount to custodial violence and is violative of Article 21 of the Constitution Of India.
The vital role of a witness in criminal case cannot be overemphasised, it is necessary that witness come forward with information and co-operate in crime investigation but it is of utmost necessity that police investigating the crime must follow the laws laid down in this regard. The fact that a person providing information about a crime may be required to testify as witness by the prosecution during the trial, makes it even more essential for police to act in strict accordance of law.
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Vidhik-Vishleshan (Decoding The Law & More) 