Investigation and Inquiry Distinguished | BNSS 2023

Investigation and Inquiry Distinguished: Sections 2(1)(j) and 2(1)(k) BNSS, the Boundary Between the Police and the Court, and What a Court May Not Do

The Bharatiya Nagarik Suraksha Sanhita, 2023 defines inquiry and investigation in consecutive clauses of section 2(1), and it uses the two words with precision throughout. Which word a provision uses decides who may act and with what powers: an investigation is conducted by a police officer and produces material, an inquiry is conducted by a Magistrate or a court and produces an order. Reading one for the other is among the commonest errors in this subject, and it is never harmless, because a power conferred for one is not available for the other.

Behind the definitions lies a constitutional arrangement that is older than either statute. The investigation of crime belongs to the executive; the adjudication of guilt belongs to the judiciary; and the two functions are complementary and not overlapping. That is why a court may order that an investigation take place and may refuse to accept its result, but may not conduct it, supervise it step by step, or tell the officer what conclusion to reach.

1. The Definitions

Sections 2(1)(j) and 2(1)(k), BNSS 2023

(j) “inquiry” means every inquiry, other than a trial, conducted under this Sanhita by a Magistrate or Court;

(k) “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.

Figure 1: The three compared

1.1 What each definition does

“Inquiry” is defined negatively and by reference to the actor. It is every inquiry other than a trial conducted by a Magistrate or Court. Two things follow: an inquiry is necessarily judicial, and a proceeding by a Magistrate that is not a trial is an inquiry whatever else it may be called.
“Investigation” is defined by its object and by the actor. It is the collection of evidence by a police officer, or by a person authorised by a Magistrate who is not a Magistrate. The exclusion of the Magistrate is express, and it is what keeps the two categories apart: a Magistrate collecting material is holding an inquiry, not conducting an investigation.
Neither includes a trial. “Trial” is nowhere defined in the Sanhita. It is understood as the proceeding that begins with the framing of a charge, or in a summons case with the statement of the particulars of the offence, and ends in conviction or acquittal.

	Investigation	Inquiry	Trial
Definition	Section 2(1)(k)	Section 2(1)(j)	Not defined
Conducted by	A police officer, or a person authorised by a Magistrate who is not a Magistrate	A Magistrate or Court	A Court
Nature	Executive	Judicial	Judicial
Object	The collection of evidence	The ascertainment of a fact, other than a trial	The determination of guilt or innocence
Begins with	Information of a cognizable offence, or a Magistrate’s order	The taking of cognizance, or a statutory occasion for an inquiry	The framing of a charge, or the statement of particulars in a summons case
Produces	Material, and a report under section 193	An order: commitment, discharge, or the framing of a charge	A judgment
Evidence	Material collected; statements are not substantive	Evidence may be taken, but it is not a trial	Evidence on oath, subject to cross-examination
Where in the Sanhita	Chapter XIII	Sections 135, 165, 196, 225, and the proceeding preliminary to commitment	Chapters XIX to XXII

2. Examples of Each

2.1 Proceedings that are inquiries

Section 135: the inquiry by an Executive Magistrate into the truth of the information in a security proceeding under Chapter IX, conducted as nearly as practicable in the manner of a summons case.
Section 156: the inquiry by a Magistrate, in a public nuisance proceeding, where the existence of a public right is denied.
Section 165: the inquiry by an Executive Magistrate into the question of actual possession in a dispute concerning land or water.
Section 196: the magisterial inquiry into the cause of death, and the mandatory inquiry by a Judicial Magistrate where a person dies or disappears, or a woman is raped, in custody.
Section 225: the inquiry by a Magistrate, on a complaint, to decide whether there is sufficient ground for proceeding, where he postpones the issue of process.
The proceeding preliminary to commitment in a case triable exclusively by the Court of Session.

2.2 Proceedings that are investigations

Everything done under Chapter XIII: proceeding to the spot under section 176, examining witnesses under section 180, searching under section 185, and forwarding the report under section 193.
An investigation ordered by a Magistrate under section 175(3) in a cognizable case, or under section 174(2) in a non-cognizable one.
An investigation directed by a Magistrate under section 225 — but see the qualification below, because the police then do not acquire the full powers of a cognizable investigation.
A further investigation under section 193(9), and a re-investigation where a superior court directs one.

⚠ The two kinds of direction to investigate are not the same

A direction made before cognizance — under section 175(3) or section 174(2) — sets the full investigative machinery in motion. The police investigate with all their statutory powers, including arrest where the offence is cognizable, and the result comes back as a police report under section 193 on which the Magistrate may take cognizance.

A direction made after cognizance, under section 225, is an aid to the Magistrate’s own inquiry. Its purpose is to help him decide whether there is sufficient ground for proceeding. The police do not acquire the powers of a full investigation, and no police report results; what comes back is material for the Magistrate.

The distinction decides what powers the police have, whether an arrest may be made, and in what form the case returns to the court. It is a distinction of substance, and the label used in the order is not conclusive: what matters is whether cognizance had been taken when the direction was made.

3. The Boundary

Figure 2: What a court may and may not do about an investigation

📖 King Emperor v. Khwaja Nazir Ahmad, AIR 1945 PC 18

Facts: A High Court had exercised its inherent jurisdiction to quash an investigation into a cognizable offence on the footing that the proceedings were an abuse of process, and had in effect directed that the police should not investigate. The question before the Privy Council was the relationship between the statutory power of the police to investigate a cognizable offence and the jurisdiction of the courts.

Held: The Board held that the police have a statutory right to investigate the circumstances of an alleged cognizable offence without requiring any authority from the judicial authorities, and that the court has no power to interfere with that right. It stated the principle in terms that have been applied ever since: the functions of the judiciary and the police are complementary, not overlapping, and the combination of individual liberty with a due observance of law and order is only to be obtained by leaving each to exercise its own function. The Board observed that in India, as in England, there is a statutory duty on the police to investigate, and that a court which assumed control over that function would be exceeding its own. It held that the inherent jurisdiction is not to be used to stifle a legitimate investigation, though the Board was careful to say that the position is different where the police proceed without jurisdiction altogether.

Ratio: The police have a statutory right to investigate a cognizable offence without judicial sanction, and the functions of the police and the judiciary are complementary and not overlapping. A court may not take over or direct the course of a lawful investigation.

📖 S.N. Sharma v. Bipen Kumar Tiwari, (1970) 1 SCC 653

Facts: A person against whom an investigation had been launched applied to the Magistrate for a direction restraining the police from proceeding with it, contending that the power of a Magistrate to direct an investigation must carry with it a power to direct that one be stopped, and that the court could otherwise do nothing about an investigation launched for a collateral purpose.

Held: The Supreme Court held that the provision empowering a Magistrate to order an investigation does not carry with it a power to stop one that the police have lawfully begun. The power of the police to investigate a cognizable offence is a statutory power which they exercise on their own responsibility, and the scheme of the Code does not contemplate the Magistrate interfering with its exercise. The Court accepted that the absence of such a power could produce hardship where an investigation is launched for an ulterior purpose, and observed that the person affected is not wholly without remedy: the High Court’s inherent jurisdiction remains available in a fit case to prevent an abuse of the process of the court. But the ordinary position is that the Magistrate cannot direct the police to stop investigating, any more than he can direct them what conclusion to reach.

Ratio: A Magistrate’s power to order an investigation does not include a power to stop one lawfully begun. The remedy against an investigation launched for a collateral purpose lies in the inherent jurisdiction of the High Court.

4. Where the Court Does Control the Investigation

The principle that a court may not conduct or direct an investigation is frequently overstated. The court controls the entry, the custody and the exit; what it does not control is the conduct in between. The distinction is worth setting out, because a great deal turns on it.

Stage	What the court controls	Provision
Entry	Whether an investigation takes place at all: it may order one in a cognizable case, and its order is the source of the power in a non-cognizable case	Sections 175(3) and 174(2)
Entry, on a public servant	A special procedure now applies where the person complained against is a public servant acting in the discharge of official duties	Section 175(4)
Custody	Whether the accused is detained at all, in what custody, and for how long; and whether the arrest safeguards were complied with	Sections 187 and 48(4)
Duration	The stopping of an investigation in a summons case not concluded within six months, unless special reasons are shown	Section 187
Completeness	Whether a further investigation is required; and during the trial, whether one may be conducted at all	Section 193(9) and its proviso
Exit	Whether to take cognizance. The officer’s opinion does not bind the court, which may take cognizance on a closure report and may decline on a charge sheet	Sections 210 and 226
Abuse	Whether the proceeding should continue at all: the power to quash a first information report or an investigation	Section 528 and Article 226
Conduct	Nothing. The court does not direct what is to be done, whom to examine, what to seize, in what order to proceed, or what conclusion to reach	—

⚠ Why the court does not control the conduct

The reason is not deference to the police. It is that a court which directed an investigation step by step would afterwards have to judge the result of its own directions, and could not do so impartially.

The same reasoning explains the rule that a Magistrate cannot direct the police to file a charge sheet. If he could compel the opinion, the opinion would be his, and he would then be taking cognizance on his own conclusion dressed as somebody else’s.

And it explains why the Magistrate’s power to give ancillary directions to ensure a proper investigation — to register a case, to monitor progress — stops short of directing what conclusion to reach. The line is between ensuring that the function is performed and performing it.

5. Why the Distinction Matters in Practice

The question	How the distinction answers it
Can a Magistrate record a statement under section 183 during an investigation?	Yes. He is not conducting the investigation; he is performing a judicial act during it. That is why the section works at all
Are the safeguards on police statements applicable to a statement recorded in an inquiry?	No. Section 181 applies to a statement made to a police officer in the course of an investigation. A statement recorded by a Magistrate in an inquiry is governed by the ordinary rules
Does the bar on the accused calling for the case diary apply to the record of an inquiry?	No. Section 192 applies to the diary of an investigation
Does an inquest report have the character of an inquiry or an investigation?	The police inquest under section 194 is part of the investigation; the proceeding under section 196 is an inquiry, held by a Magistrate, instead of or in addition to it
Does a proceeding under Chapter IX for security count as an inquiry?	Yes, expressly: section 135 calls it an inquiry, and it is conducted by an Executive Magistrate
Can the period of an inquiry be counted towards the investigation period under section 187?	No. The periods in section 187 relate to the investigation and to detention during it
Is a proceeding to decide whether to issue process a trial?	No. It is an inquiry under section 225. The trial begins later

6. Key Takeaways

The position stated shortly

1. Inquiry means every inquiry other than a trial conducted by a Magistrate or Court: section 2(1)(j). It is necessarily judicial.

2. Investigation means all proceedings for the collection of evidence by a police officer, or by a person authorised by a Magistrate who is not a Magistrate: section 2(1)(k). It is executive.

3. The exclusion of the Magistrate from the definition of investigation is what keeps the categories apart. A Magistrate collecting material is holding an inquiry.

4. Trial is nowhere defined. It begins with the framing of a charge, or in a summons case with the statement of the particulars of the offence.

5. An investigation produces a report; an inquiry produces an order; a trial produces a judgment.

6. The police have a statutory right to investigate a cognizable offence without judicial sanction, and the functions of the police and the judiciary are complementary and not overlapping: Khwaja Nazir Ahmad.

7. A Magistrate’s power to order an investigation does not include a power to stop one lawfully begun; the remedy against an abusive investigation is the High Court’s inherent jurisdiction: S.N. Sharma.

8. The court controls the entry to the investigation, the custody of the accused, the duration in a summons case, the question of further investigation, the exit through cognizance, and the power to quash. It does not control the conduct.

9. The reason is that a court which directed the investigation would afterwards have to judge the result of its own directions.

10. A direction to investigate before cognizance sets the full machinery in motion and produces a police report; one made after cognizance under section 225 is an aid to the Magistrate’s inquiry and does not.

7. Frequently Asked Questions

What is the difference between an inquiry and an investigation?

An inquiry is every inquiry other than a trial conducted by a Magistrate or Court; it is judicial and produces an order. An investigation is the collection of evidence by a police officer, or by a person authorised by a Magistrate who is not a Magistrate; it is executive and produces a report.

Can a Magistrate conduct an investigation?

No. The definition in section 2(1)(k) expressly excludes a Magistrate. A Magistrate who collects material is holding an inquiry, and the powers and consequences that attach to an investigation do not apply to what he does.

Can a court stop a police investigation?

A Magistrate cannot. The power to order an investigation does not carry with it a power to stop one lawfully begun: S.N. Sharma v. Bipen Kumar Tiwari. The High Court may, in a fit case, quash an investigation in exercise of its inherent jurisdiction or under Article 226, where the proceeding is an abuse of process.

Can a court direct the police what to do during an investigation?

It may give ancillary directions to ensure that the investigation is properly conducted — to register a case, to monitor progress — but it cannot direct what steps to take, whom to examine, or what conclusion to reach. The formation of the opinion is the exclusive function of the investigating agency.

Is a proceeding to decide whether to issue process a trial?

No. It is an inquiry under section 225, conducted by a Magistrate to decide whether there is sufficient ground for proceeding. The trial begins later, with the framing of a charge or, in a summons case, the statement of the particulars of the offence.

Why does the distinction matter?

Because the word used in a provision fixes who may act and with what powers. The restrictions on police statements apply to statements made in an investigation; the bar on the accused calling for the case diary applies to the diary of an investigation; the periods in section 187 relate to detention during an investigation. A power conferred for one is not available for the other.

Related Topics

Investigation under the BNSS, 2023: Chapter XIII, Sections 173 to 196
Inquiry, Investigation and Trial: Meaning and Distinction
Final Report and the Magistrate’s Options
Non-Cognizable Offences under the BNSS, 2023: Section 174
Inquest under the BNSS, 2023: Sections 194 to 196
Commencement of Proceedings before Magistrates: Chapter XVII, BNSS