Criminal Procedure: Code of Criminal Procedure, 1973 / Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS)
Inquiry Investigation and Trial Meaning and Distinction
Inquiry, Investigation and Trial under the BNSS, 2023: Meaning, Distinction, Sections 2(1)(k) and 2(1)(l), and When a Trial Begins
A criminal case passes through three phases, and the Bharatiya Nagarik Suraksha Sanhita, 2023 gives each a name. Investigation is the collection of evidence by the police. Inquiry is everything a Magistrate or court does that is not a trial. Trial is the proceeding that ends in conviction or acquittal. The three are not interchangeable, and a great deal turns on which of them a given proceeding is: who may conduct it, what powers are available, what the court may look at, and what order may result.
The Sanhita defines two of the three. Investigation is defined in section 2(1)(l) and inquiry in section 2(1)(k). Trial is not defined anywhere, as it was not defined in the Code of Criminal Procedure, 1973, and its meaning has to be assembled from the chapters that govern it and from the decisions that have considered when it begins.
Figure 1: The three phases compared
1. Investigation
Section 2(1)(l), BNSS 2023 “Investigation” includes all the proceedings under this Sanhita for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorised by a Magistrate in this behalf. Explanation. Where any of the provisions of a special Act are inconsistent with the provisions of this Sanhita, the provisions of the special Act shall prevail. |
1.1 The elements of the definition
- The definition is inclusive and not exhaustive. The word used is “includes”, so the content of an investigation is not closed by the definition and covers whatever is in fact done for the collection of evidence under the Sanhita.
- The object is the collection of evidence. A proceeding directed to some other object, such as deciding a question of law or determining whether to proceed against a person, is not an investigation.
- The agency is a police officer, or a person other than a Magistrate authorised by a Magistrate. The exclusion of the Magistrate is deliberate: a Magistrate never conducts an investigation, and what he conducts is an inquiry.
1.2 The stages of an investigation
An investigation is a sequence of acts and not a single event. It ordinarily comprises proceeding to the spot; ascertaining the facts and circumstances of the case; discovering and arresting the suspected offender; collecting evidence, which may involve the examination of persons, searches and seizures, medical and forensic examination and the recording of statements; and forming an opinion whether there is a case to place the accused before a Magistrate for trial, followed by the steps necessary to do so, which under the Sanhita means the report under section 193.
Several provisions of the Sanhita now attach obligations to particular points in that sequence. Section 176(3) requires a forensic expert to visit the scene where the offence is punishable with seven years or more. Section 105 requires a search and seizure to be recorded by audio-video electronic means. Section 193(3)(ii) requires the informant or victim to be told of the progress of the investigation within ninety days. Section 193(9) requires a further investigation to be completed within ninety days.
1.3 Investigation is an executive function
The most important structural fact about an investigation is that it is not a judicial proceeding. It is the exclusive province of the police, and a court does not direct how it is to be conducted.
📖 Union of India v. Prakash P. Hinduja, (2003) 6 SCC 195 Facts: In proceedings arising out of a major investigation, questions were raised about the extent to which a court may supervise or interfere with the manner in which the investigating agency conducts its investigation, and about the effect of a defect in the investigation on the proceedings that follow. Held: The Supreme Court held that the statutory scheme confers on the police an unfettered discretion in the matter of investigation of a cognizable offence, and that the court has no power to interfere with or supervise the mode and manner of investigation. The field of investigation is exclusively reserved for the police, and the court comes into the picture on the filing of the report. The Court further held that a defect or illegality in the investigation, however serious, has no direct bearing on the competence or the procedure relating to cognizance or trial, and does not vitiate the trial unless prejudice or a miscarriage of justice is shown. Ratio: Investigation belongs to the executive. The court supervises what it produces, not how it is conducted, and a defect in it affects the trial only through the test of prejudice. |
Two qualifications should be kept in mind. The proposition concerns the manner of an investigation, not whether one may be begun or refused: the duty to register and investigate information disclosing a cognizable offence is enforceable, and the High Court retains the power to quash an investigation in the defined categories. And the Sanhita itself has narrowed the discretion at the margins by prescribing forensic examination, recording obligations and timelines, so that an investigation is now conducted under more statutory direction than it was.
2. Inquiry
Section 2(1)(k), BNSS 2023 “Inquiry” means every inquiry, other than a trial, conducted under this Sanhita by a Magistrate or Court. |
The definition is negative and residual. Anything a Magistrate or court does under the Sanhita is an inquiry unless it is a trial. Two features follow. An inquiry is always judicial, because the agency is a Magistrate or a court. And it does not end in a conviction or an acquittal, because a proceeding that does is a trial; it ends in an order.
Proceeding | Provision | Why it is an inquiry |
|---|---|---|
Examination of the complainant and witnesses on oath | Section 223 | Conducted by a Magistrate to decide whether there is sufficient ground to proceed; it is not a trial |
Postponement of process and inquiry by the Magistrate himself | Section 225 | A judicial proceeding after cognizance but before any charge or accusation is put to the accused |
Committal of a case to the Court of Session | Section 232 | A judicial act of the Magistrate that transfers the case; no determination of guilt |
Proceedings for security for keeping the peace and for good behaviour | Chapter IX | Preventive proceedings before an Executive Magistrate that never become a trial |
Proceedings as to public nuisance and disputes as to immovable property | Chapter XI | Preventive and quasi-civil, conducted by an Executive Magistrate |
Inquiry into the cause of an unnatural or custodial death | Section 196 | A magisterial inquiry directed to a fact, not to guilt |
Inquiry into the capacity of the accused to make his defence | Chapter XXVII | A collateral judicial determination arising in the course of a proceeding |
⚠ Two proceedings that are inquiries but are often called something else Proceedings under Chapters IX, XI and XII are inquiries that never become trials. There is no accused, no charge and no conviction; the order is preventive. This is why those three chapters apply of their own force even in the areas excluded by section 1(2), where the trial machinery does not. A preliminary inquiry under section 173(3) is not an inquiry within the meaning of section 2(1)(k) at all. It is conducted by a police officer and not by a Magistrate or court, and it is directed to the collection and assessment of information. The word is used in the section in its ordinary sense, not in its defined sense, which the opening words of section 2 permit. |
3. Trial
Neither the Sanhita nor the Code of Criminal Procedure defined “trial”. Its meaning is negative in one direction and positive in another. Negatively, section 2(1)(k) tells us that a trial is not an inquiry, so whatever a trial is, it is something a Magistrate or court does that is excluded from the residual category. Positively, a trial is the proceeding in which the guilt or innocence of an accused is determined and which concludes in conviction or acquittal.
3.1 When does a trial commence?
The question matters because a number of provisions of the Sanhita operate only during a trial, or only during an inquiry, or during both. The answer differs according to the procedure applicable to the case.
Type of case | Trial commences | What precedes it is an inquiry |
|---|---|---|
Sessions trial, Chapter XIX | On the framing of the charge under section 251 | Committal under section 232, supply of documents under section 230, discharge under section 250 |
Warrant case before a Magistrate, on a police report | On the framing of the charge under section 263 | Compliance with section 261 and the discharge stage under section 262 |
Warrant case instituted otherwise | On the framing of the charge under section 269 | The taking of all prosecution evidence under section 267 and the discharge stage under section 268 |
Summons case, Chapter XXI | On the statement of the particulars of the offence to the accused under section 274 | The proceedings on the complaint under sections 223 to 227 |
Summary trial, Chapter XXII | As in a summons case, the procedure being that of a summons case | The same |
📖 Hardeep Singh v. State of Punjab, (2014) 3 SCC 92 (Constitution Bench) Facts: The reference concerned the power of a court under section 319 of the Code of Criminal Procedure, 1973 to summon a person not arrayed as an accused. Because that power is exercisable “in the course of any inquiry into, or trial of, an offence”, the Court had to determine the meaning of inquiry and trial, the stage at which each begins and ends, and what material may be acted upon. Held: The Constitution Bench held that an inquiry is a stage preceding and principally directed towards ascertaining whether there is ground to proceed, and that a trial commences on the framing of the charge in a case triable by a Court of Session or as a warrant case, and on the statement of the substance of the accusation in a summons case. It held that the word “evidence” in section 319 includes material brought before the court during the trial, and that the power may be exercised from the stage at which the court begins to receive evidence until the pronouncement of judgment, but not on the strength of material collected during investigation alone. Ratio: Inquiry and trial are successive and distinct stages, and the dividing line is the charge, or in a summons case the statement of the accusation. A power conferred for use during an inquiry or a trial cannot be exercised on the strength of investigative material by itself. |
One qualification is worth recording. For the purpose of some provisions the word trial is used in a wider sense that takes in the proceedings from the appearance of the accused, and the Supreme Court has recognised that the expression takes colour from the provision in which it appears. That is exactly what the opening words of section 2 contemplate when they say “unless the context otherwise requires”.
4. The Three in Sequence
Figure 2: Where each label applies in the life of a case
The two boundaries are worth stating precisely. Investigation ends and inquiry begins when the matter passes from the police to the court, which happens on the taking of cognizance. Inquiry ends and trial begins on the framing of the charge, or in a summons case on the statement of the substance of the accusation. The boundaries are not always clean at the edges: a further investigation under section 193(9) may continue after cognizance, and an inquiry under Chapter XXVII may interrupt a trial. But as a working sequence the three phases are successive.
Investigation | Inquiry | Trial | |
|---|---|---|---|
Defined by | Section 2(1)(l), inclusively | Section 2(1)(k), negatively | Not defined |
Conducted by | Police officer, or a non-Magistrate authorised by a Magistrate | Magistrate or Court | Court |
Nature | Executive | Judicial | Judicial |
Object | Collection of evidence | To ascertain a fact or decide whether to proceed | To determine guilt or innocence |
Begins with | The FIR, or a Magistrate’s order in a non-cognizable case | Cognizance, or the institution of a preventive proceeding | The charge, or the statement of the accusation |
Ends with | The report under section 193 | An order, such as discharge, committal or the issue of process | Conviction or acquittal |
Evidence | Collected, but not recorded as evidence in the trial sense | Statements on oath may be recorded | Evidence recorded under Chapter XXV |
Presence of the accused | Not necessary | Not always necessary | Necessary, save under sections 355 and 356 |
Effect of a defect | Does not vitiate the trial without prejudice | Governed by Chapter XXXVII | Governed by Chapter XXXVII and section 511 |
5. Why the Distinction Has Practical Consequences
- Which powers are available. A number of provisions are expressed to operate “in any inquiry or trial”, and a power so conferred cannot be exercised during an investigation. Section 348, the power to summon a material witness or recall a witness, and section 358, the power to proceed against other persons appearing to be guilty, are examples.
- What the court may look at. At the stage of discharge, which is part of the inquiry, the court is confined to the prosecution material. At trial, the whole of the evidence is before it.
- What statements may be used. A statement recorded by the police during investigation is not substantive evidence. A statement recorded by a Magistrate under section 183 during an inquiry stands on a different footing, and evidence recorded during a trial is substantive.
- Who controls the proceeding. During an investigation the police are in control and the court does not direct the manner of it. From cognizance onwards the court is in control, and the police act on its directions.
- Which timelines apply. The ninety-day and sixty-day periods in section 187 run during the investigation. The sixty-day and thirty-day periods in sections 251 and 258 run during the inquiry and trial.
- The effect of a defect. A defect in an investigation does not by itself vitiate the trial and is tested by prejudice. A defect in an inquiry or trial is governed by Chapter XXXVII, where the test is whether a failure of justice has in fact been occasioned.
6. Key Takeaways
The position stated shortly 1. Investigation is defined inclusively in section 2(1)(l) as all proceedings under the Sanhita for the collection of evidence conducted by a police officer or by a person, other than a Magistrate, authorised by a Magistrate. 2. Inquiry is defined negatively in section 2(1)(k) as every inquiry other than a trial conducted by a Magistrate or court. Trial is not defined at all. 3. Investigation is executive; inquiry and trial are judicial. A Magistrate never conducts an investigation. 4. The stages of an investigation are proceeding to the spot, ascertaining the facts, arresting the suspect, collecting evidence, and forming the opinion whether to place the accused before a Magistrate. 5. The manner of an investigation is the exclusive province of the police and is not supervised by the court; a defect in it does not vitiate the trial unless prejudice is shown: Prakash P. Hinduja. 6. A trial commences on the framing of the charge in a Sessions or warrant case, and on the statement of the substance of the accusation in a summons case: Hardeep Singh. 7. Investigation ends and inquiry begins on the taking of cognizance; inquiry ends and trial begins at the charge. 8. Proceedings under Chapters IX, XI and XII are inquiries that never become trials, which is why those chapters apply of their own force even where the trial machinery does not. 9. A preliminary inquiry under section 173(3) is not an inquiry within section 2(1)(k), because it is conducted by the police and not by a Magistrate or court. |
7. Frequently Asked Questions
What is the difference between inquiry and investigation?
An inquiry is conducted by a Magistrate or a court and is every proceeding under the Sanhita other than a trial. An investigation is conducted by a police officer, or by a person other than a Magistrate authorised by a Magistrate, and is directed to the collection of evidence. The first is judicial, the second is executive.
Is trial defined in the BNSS?
No, and it was not defined in the CrPC either. Its meaning comes from the chapters that govern the several trial procedures and from the case law, which fixes its commencement at the framing of the charge or, in a summons case, at the statement of the substance of the accusation.
When does a criminal trial begin in India?
In a Sessions case and in a warrant case, on the framing of the charge. In a summons case, on the particulars of the offence being stated to the accused under section 274. The Constitution Bench so held in Hardeep Singh v. State of Punjab.
Can a court direct how an investigation is to be conducted?
No. The manner of investigation is reserved to the police, and the court does not supervise it. The court may direct that an investigation be conducted under section 175(3), and the High Court may quash an investigation in the recognised categories, but it does not control the mode of it.
Does a defect in the investigation vitiate the trial?
Not by itself. The court asks whether the defect has caused prejudice to the accused or a miscarriage of justice. Where the objection is taken at an early stage the court may direct a reinvestigation; where it is taken after conviction, the test of prejudice governs.
Is a proceeding under Chapter IX for security an inquiry or a trial?
An inquiry. It is conducted by an Executive Magistrate, there is no accused and no charge, and it ends in a preventive order rather than in a conviction or acquittal.
Related Topics
- Complaint, FIR and Police Report: The Distinction
- Important Definitions under Section 2 of the BNSS, 2023
- Information to the Police and Powers to Investigate: Chapter XIII, BNSS
- Conditions Requisite for Initiation of Proceedings: Cognizance under Chapter XV
- Summons Case and Warrant Case under the BNSS, 2023
- The Charge: Sections 234 to 247, BNSS