Historically but consistently the view of Supreme Court has been that an investigation must be fair and effective, must proceed in proper direction in consonance with the ingredients of the offence and not in haphazard manner. In some cases besides investigation being effective the accused may have to prove miscarriage of justice but once it is shown the accused would be entitled to definite benefit in accordance with law.

The investigation should be conducted in a manner so as to draw a just balance between citizens’ right under Articles 19 and 21 and expensive power of the police to make investigation. These well-established principles have been stated by Supreme Court in the case of

  • Sasi Thomas vs. State & Ors. [(2007) 2 SCC (Criminal) 72],
  • State Inspector of Police vs. Surya Sankaram Karri [(2006) 3 SCC (Criminal) 225 and
  • T.T. Antony vs. State of Kerala [(2001) 6 SCC 181.

In Nirmal Singh Kahlon vs. State of Punjab [AIR 2009 SC 984] the Court specifically stated that a concept of fair investigation and fair trial are concomitant to preservation of fundamental right of accused under Article 21 of the Constitution of India.

It is pertinent to note here that one of the established canons of just, fair and transparent investigation is the right of defence of an accused. An accused may be entitled to ask for certain documents during the course of enquiry/trial by the Court.

Sections 170 to 173

To understand this concept in its right perspective we must notice the scheme under the provisions of Section 170 to 173 of the Criminal Procedure Code. All these provisions fall under Chapter XII of the Code which deals with, information of the police and their powers to investigate. The power of the police to investigate freely and fairly is well recognized and codified in law.

In terms of Section 170, the investigating officer when satisfied that sufficient evidence or reasonable grounds exist he shall forward accused under custody to a Magistrate along with such weapons or articles which may be necessary to be produced before the Court. Section 172 of the Code has a meaningful bearing on the entire investigation by a police officer. It is mandatory for him to maintain a diary under this chapter where he shall enter day-by-day proceedings in the investigation carried out by him.

He is expected to mention time of events and his departure, reporting back and closing of the investigation, the place/places he visited and the statements he recorded during investigation. The statement of the witness is recorded during the investigation under Section 161 shall be inserted in that diary. A Criminal Court is empowered under Section 172 (2) to send for the diaries and they could be used by the Court but not as evidence in the case but to aid it in such inquiry for trial.

However, Sub-section 3 of the same Section provides that neither the accused nor his agents shall be entitled to call for such diaries, nor they are entitled to see them but it is only where the police officer who makes them to refresh his memory or the Court uses them for the purposes of contradicting such police officers in terms of Section 172 than Sections 161 or 145 provisions would apply.

Section 173 commands the investigating agency to complete the investigation expeditiously without unnecessary delay and when such an investigation is completed, the officer in charge of the police station shall forward to a Magistrate empowered to take cognizance of offence on a police report with the details in the form as may be prescribed by the State Government and provide the information required 154 under this Section.

Provisions of Section 173 (5) contemplates and make it obligatory upon the investigating officer where the provisions of Section 170 apply to forward to the Magistrate along with his report, all documents or relevant extracts thereof on which the prosecution proposes to rely other than those already sent to the Magistrate during investigation in terms of Section 170 (2) of the Code. During investigation the statement recorded under Section 161 of all the persons whom the prosecution proposes to examine as witnesses shall also be sent to the Magistrate.

Some element of discretion is vested with the police officer under Section 173 (6) where he is of the opinion that any such statement is not relevant to the subject matter of the proceedings or its disclosure to accused is not essential in the interest of justice and is expedient in the public interest he shall indicate that part of the statement refusing a Magistrate that part from the copies to be granted to the accused and stating his reason for making such a request.

Section 173 (8) empowers an investigating officer to submit a further report if he is able to correct further evidence. Once this report in terms of Section 173 is received the court shall proceed with the trial of the case in accordance with law.


Siddhartha Vashishta @ Manu Sharma v. State (NCT of Delhi) [2010]