C H A P T E R IV

A.—POWERS OF SUPERIOR OFFICERS

OF POLICE
36. Powers of superior officers of police.—Police
officers superior in rank to an officer in charge of a
police station may exercise the same powers, throughout
the local area to which they are appointed, as may be
exercised by such officer within the limits of his station.
Powers of superior officers of police
Synopsis
J. Legislative history, 208
2. Police officers superior in rank to officer in charge of police
station, 208
3. Powers of superior police officers, 209
(i) "May exercise" same powers, 209
(ii) Power of investigation, 209
(iii) Supervision and direction, 210
(iv) Request to court to re-open investigation, 210
(v) Power of search, 210
(vi) Power to disperse unlawful assembly, 210

1. Legislative history.—Section 36 is a verbatim reproduction

of s. 551 of the old Code.
2. Police officers superior in rank to officer in charge of
police station.—While interpreting s. 551 of the old Code which was
in pari materia with s. 36 of the Code the Supreme Court in R. P.
Kapoor v. Sardar Pratap Singh Kaironobserved that the Additional
Inspector-General of Police was without doubt a police officer
superior in rank to station in charge of a police station. The use of
the word "rank" in s. 36 of the Code comprehends the hierarchy of
police officers. If the vigilance department is declared by a State
Government to be police station having jurisdiction throughout the
State in respect of certain offences, the Inspector-General, Vigilance
having his jurisdiction extending over the whole of the State is an
officer superior in rank to an officer in charge of a police station and
he can, in view of s. 36, exercise the powers of an officer-in-charge of
a police station throughout the State and can as pointed out by the
Supreme Court in J. A. C. Saldana, exercise the powers of further
investigation under s. 173 (8) of the Code in view of s. 36.2

However, generally police department is not under the control of

the vigilance department. There are two separate Inspectors-General
as heads. No one has control over the other. Thus, the Deputy
Superintendent of Police of the vigilance police station cannot be

1961 2 SCR 143 at pp. 153-154.

State of Bihar v. J. A. C. Saldana, 1980 Cr LJ 98 (SC) : AIR 1980 SC 326 : 1980
SCC (Cri) 272 : (1980) 1 SCC 554 : (1980) 1 SCJ 406.

( 208 )
S. 361 Powers of superior officers of police 209
regarded as an officer superior in rank to the Inspector of Police
investigating a case so long as the Deputy Superintendent of Police is
working in the vigilance department.1

But a person belonging to the criminal investigation department

and holding the rank of an Inspector of Police is superior in rank to
an officer-in-charge of a police station, who is generally a Sub-
Inspector in rank. If he had been directed by a Magistrate to
investigate into a non-cognizable offence, he could do so under s. 155
(3), Cr. P.C.2 At the same time, an Inspector of the anti-corruption
department is inferior in rank to an officer in charge of a police
station and an investigation by him in the case of offences
mentioned in s. 5A of the Prevention of Corruption Act, 1947, would
be contrary to the provisions of s. 156, Cr. P.C., and, therefore,
illegal.3

3. Powers of superior police officers.—Section 36 only

purports to confer on police officers superior in rank to an officer in
charge of police station the same powers throughout the local area to
which they are appointed as may be exercised by such officer -within
the limits of his station. It does not obviously contain a provision
similar to Police Regulation 486 (1) (3) that investigation shall be
made by a police officer higher in rank than the officer charged.4

(i) "May exercise" same powers.—There is no authority for

the proposition that the word "may" in s. 36 means "must". The
section does not compel but only authorises exercise of powers of an
officer in charge of a police station by a superior police officer.5

(ii) Power of investigation.—A police officer superior in rank

to the officer-in-charge of a police station will be completely justified
in exercising the power which can be exercised by the officer in
charge of police station and he is within his jurisdiction to
investigate a case arising under the police station under his
jurisdiction. 6 Where the complaint received by a Chief Minister is
sent by him to Addl. Inspector-General of Police and the latter
directs a Deputy Superintendent of Police to investigate the
complaint, it is justified under s. 36.7 Therefore, when any police
officer referred to in this section conducts the investigation, that
cannot be questioned as without authority.8

D.I.G. of the range directed investigation by the police officer who

investigated and filed the charge-sheet. The investigation was not

1. Baidyanath Patnaik v. State, 1969 Cr LJ 339 (Ori).

2. AIR 1959 All 337 : 1959 Cr L J 668.
3. (1961) 2 Guj LR 664 : 1962 (1) Cr LJ 142.
4. State of U. P. v. Surinder Pal Singh. 1989 Cr LJ 998 (SC) : AIR 1989 SC 811 ;
(1989) 10ATC442.
5. 33 Cr L J 657 : AIR 1932 Cal 850 ; AIR 1963 Cal 191.
6. Soni Natveralal Prabhudas v. State of Gujarat, 1983 Cr LJ 1124 (Guj).
7. AIR 1961 SC 1117.
8. State v. Kolakkan Moosa Haji, 1994 Cr LJ 1288 (Ker) : 1994 SC Cri R 183 : (1994)
1 Cur Cri R 243 : 1994 (2) C C J 92 : 1994 (2) ILR (Ker) 177 : 1993 (2) Ker L J 464 :
1993 (2) Ker LT 609 : (1994) Mad LJ (Cri) 60.
Cr. P.C. 14
210 Ch. IV-B.-Aid to the Magistrates and the police |S. 36
illegal as the direction could be lawfully given by the D.I.G. under
this provision.1

(iii) Supervision and direction.—Under this section, the

Superintendent of Police is competent to supervise the investigation
and to give any direction to the officer in charge of the police station
regarding the investigation of the case. Therefore, the submission of
the charge-sheet by the officer in charge of the police station on the
direction of the Superintendent of Police is not illegal.2

(iv) Request to court to re-open investigation.—Where the

officer in charge of a police station has submitted a final report in a
case but a superior officer, on clues and information from the
Superintendent of Police, files an application in the court for re-
opening the investigation, the action is valid in view of s. 36 and the
application should be granted.3

(v) Power of search.—Where a search is made actually by a

Sub-Inspector of Police who is not in charge of a police station, but it
is made under the supervision of a Circle Inspector, the search is not
illegal.4
(vi) Power to disperse unlawful assembly.—As to the power
of a Deputy Commissioner of Police to disperse an unlawful
assembly. See the undernoted case.5

B.—AID TO THE MAGISTRATES AND THE POLICE

37. Public when to assist Magistrates and police.—
Every person is bound to assist a Magistrate or police
officer reasonably demanding his aid—
(a) in the taking or preventing the escape of any
other person whom such Magistrate or police
officer is authorised to arrest ; or
(b) in the prevention or suppression of a breach of
the peace ; or
(c) in the prevention of any injury attempted to be
committed to any railway, canal, telegraph or
public property.
Public when to assist Magistrates and police
Synopsis
1. Legislative history, 211
2. Obligation to assist, 211
(i) Nature of assistance that can be demanded, 211

Mohd. Umar v. Deputy Director General of Police, Moradabad, 1998 (2) All Cri C
112: (J998) 1 A C r R 6 2 3 .
AIR 1963 Pat 268 : 1963 (2) Cr L J 42.
3. Ram Autar Jalan v. State of Bihar, 1986 Cr LJ 51 (Pat) : 1985 B L J R 650 : 1985 Pat
L J R 1142.
AIR 1927 All 516 : 26 Cr L J 652.
5. See 7 Bom 49.
 S. 37] Public when to assist Magistrates arid police 211
(ii) Purpose of assistance, 211
(iii) Lawfulness of arrest whether material, 211
3. Presence of police officer essentialfor seeking aid, 212
4. Punishment for omission to assist, 212

1. Legislative history.—Section 37 reproduces old s. 42 with

the changes given below :—

(i) The words "whether within or without the presidency town"

appearing in the old section have been deleted.

(ii) Clause (b) of the old s. 42 has been divided into els. (b) and
(c).

2. Obligation to assist.—Members of the public are bound to

assist a police officer reasonably demanding their aid in the taking
of any dacoits or suspected dacoits whom that officer is authorised
by law to arrest. The law, however, does not intend that the police
officers should have a general power of calling upon the members of
the public to join them in arresting a number of unknown persons
whose whereabouts are not known. Refusal to assist the police officer
in such a quest is not an offence under s. 187, I.P.C.1

(i) Nature of assistance that can be demanded.—The

assistance that can be demanded under s. 37 is personal assistance of
the individuals of whom it is demanded and not a supply of a
contingent of men to assist.2 A police officer cannot require a private
person to put his house at the disposal of the police.3 The assistance
must have some direct personal relation to the execution of the duty
by the police officer.4 Therefore, the neglect by a land-holder of a
direction of the Magistrate that he should find a clue to a theft
within 15 days and assist the police will not render him liable to a
conviction under ss. 187 and 188, I.P.C., as the said direction is not
warranted by this section. The section does not require him to
perform the duties for which the police are appointed and paid.5
However, a police officer is authorised to employ a chowkidar to
assist him in arresting a person or in preventing his escape.6

(ii) Purpose of assistance.—The assistance that can be

demanded is that regained in respect of such matters as are
mentioned in this section.7

(iii) Lawfulness of arrest whether material.—It is not

necessary that the arrest for which aid is demanded should itself be
lawful.8

1. 42 A l l 314.
2. 2 Weir 37. See also 42 A l l 314.
. 3. 1935 A M L J 1.
t 4. 26 Mad 419 (421) (FB).
. 5. 3 All 201.
6. 6 CWN 337.
" 7. Ambika Pd. v. Emperor. AIR 1932 All 506 : 33 Cr LJ 736.
8. Reg. v. Sherlock. (1868) LR 1 Crown Cas 20.
212 Ch. IV-B.-Aid. to the Magistrates and the police IS. 37

3. Presence of police officer essential for seeking aid.—Under

this section, a private person must assist a police officer to arrest,
but the police officer must be present before he can demand the
private person s aid. Section 37 does not allow the wholesale
delegation by the police of their duties to a private individual and
authorize him to arrest an offender. Where a Sub-Inspector gives in
writing an authority to a private individual to arrest a person whom
he states to be a proclaimed offender but who is not in fact so, the
arrest of such person by the private individual is illegal and cannot
be justified, under s. 37, Cr. P.C.1

4. Punishment for omission to assist.—Omission to assist the

police under this section is punishable under s. 187. l.'r.C.9

38. Aid to person, other than police officer, executing

warrant.—When a warrant is directed to a person other
than a police officer, any other person may aid in the
execution of such warrant, if the person to whom the
warrant is directed be near at hand and acting in the
execution of the warrant.
Aid to person, other than officer, executing warrant
Synopsis
1. Legislative history, 212
2. "Aid to person other than police officer" not obligatory, 212
3. "Directing warrant to a person other than a police ojficef, 212
4. "Near at hand", 212

1. Legislative history.—Section 38 is a verbatim reproduction

of s. 43 of the old Code.

2. "Aid to person other than police officer" not obligatory.—

The use of the words "may aid" shows that, under this section, the
assistance to be given is only optional and is not obligatory as under
the last foregoing section. The words used in s. 37 are "is bound to
assist."
3. "Directing warrant to a person other than a police
officer".—See ss. 72 and 73, infra.

4. "Near at hand".—The words "near at hand" in this section

might include, in certain cases a distance of two miles.3

39. Public to give information of certain offences.—

(1) Every person, aware of the commission of, or of the
intention of any other person to commit, any offence
punishable under any of the following sections of the
Indian Penal Code (45 of 1860), namely,—

AIR 1937 Sind 254 : 38 Cr LJ 1101.

AIR 1932 All 506 : 33 Cr U 736.
Police v. Bhorik, Columnar Digest, Cr 14 of 1874 (CP).
S. 39) Public to give information of certain offences 213
(i) Sections 121 to 126, both inclusive, and section
130 (that is to say, offences against the State
specified in Chapter VI of the said Code) ;
(ii) Sections 143, 144, 145, 147 and 148 (that is to
say, offences against the public tranquillity
specified in Chapter VIII of the said Code) ;
(iii) Sections 161 to 165A, both inclusive (that is to
say, offences relating to illegal gratification) ;
(iv) Sections 272 to 278, both inclusive (that is to say,
offences relating to adulteration of food and
drugs, etc.) ;
(v) Sections 302, 303 and 304 (that is to say,
offences affecting life) ;
[(va) Section 364A (that is to say, offence relating to
kidnapping for ransom, etc.) ;]
(vi) Section 382 (that is to say, offence of theft after
preparation made for causing death, h u r t or
restraint in order to the committing of the
theft) ;
(vii) Sections 392 to 399, both inclusive, and Section
402 (that is to say, offences of robbery and
dacoity) ;
(viii) Section 409 (that is to say, offence relating to
criminal breach of trust by public servant, etc.) ;
(ix) Sections 431 to 439, both inclusive (that is to say,
offences of mischief against property) ;
(x) Sections 449 and 450 (that is to say, offence of
house-trespass) ;
(xi) Sections 456 to 460, both inclusive (that is to say,
offences of lurking house-trespass) ; and
(xii) Sections 489A to 489E, both inclusive (that is to
say, offences relating to currency notes and bank
notes),
shall, in the absence of any reasonable excuse, the burden
of proving which excuse shall lie upon the person so
aware, f o r t h w i t h give information to the nearest

Inserted by the Criminal Laws (Amendment) Act, 1993 (42 of 1993), w.e.f.
22.5.1993.
214 Ch. IV-B.-Aid to the Magistrates and the police is. 39
Magistrate or police officer of such commission or
intention.
(2) For the purposes of this section, the term
"offence" includes any act committed at any place out of
India which would constitute an offence if committed in
India.
Public to give information of certain offences
Synopsis
1. Legislative history, 214
2. "Every person" what means?, 214
(i) Person must be aware of commission of offence, 215
(ii) Awareness of intention of committing offence, 215
3. Obligation to forthwith give information, 215
(i) When obligation under section ceases?, 215
(ii) Punishment for breach of obligation, 215
(iii) Failure to give information must be intentional 215
(iv) Failure to report offence, no abetment, 216
(v) Person not giving information—Effect on his evidence. 216

1. Legislative history.—Section 39 reproduces old s. 44 with

the following changes :
(i) The words "whether, within or without the presidency town"
have been deleted.
(ii) As the member of the public are not expected to be familiar
with the numbers of the sections of I.P.C., a brief
description of the various offences have been inserted in
addition to the reference to the sections of the I.P.C.
(iii) Some of the anti-social offences namely those relating to
adulteration of food and drugs, criminal breach of trust by
public servant and offences relating to counterfeiting of
currency notes have been included.
(iv) Reference to offences under the Prevention of Corruption
Act, 1947 has been omitted as it is considered sufficient to
include offences under ss. 161 to 165A, I.P.C. (bribery and
corruption).
(v) Sub-section (2) corresponds to the old provisions of sub-s. (2)
of old s. 44.1
Clause (va) was inserted in sub-s. (1) by the Criminal Laws
(Amendment) Act, 1993, w.e.f. 22.5.1993, to bring offence of
kidnapping for reason, etc., under Section 364A, I.P.C. within the
fold of this sub-section.

2. "Every person" what means?—This section and s. 40 (1) (d)

do not in terms exclude the offender himself. In theory, the offender
himself could be convicted for breach of the law under ss. 201 to 203,
I.P.C. though in practice no court will think it worthwhile to do so, if

1. See Report of Joint Committee, p. 8.

S. 39] Public to give information of certain offences 215
he has been convicted of the offence itself.1 But the Patna High Court
holds the contrary view that the words "every person" in s. 39 do not
include a person intending to commit an offence much less a person
who has committed one.2

(i) Person must be aware of commission of offence.—In

order that s. 39 of the Code should be attracted, the person must be
aware of the commission of any offence under the enumerated
sections, then only the person has a duty to inform authorities. Later
investigation may reveal or establish the commission of an offence
under s. 302, I.P.C. The court may ultimately convict the culprit for
the offence of culpable homicide. None of these future contingencies
by itself is sufficient to attract the applicability of s. 39 of the Code.
The maker of the statement must be aware, at the time of making the
statement that an offence (of the kind mentioned) had been
committed. The belief of the maker is crucial.3

(ii) Awareness of intention of committing offence.—Under

this section every person who is aware of the commission of, or of
the intention of any other person to commit any of the specified
offences should forthwith give information thereof, to the nearest
Magistrate or police officer. In the case of a charge of arson under s.
436, I.P.C., where the accused does not admit that the fire was
intentionally caused, he is under no obligation to make any report.4

3. Obligation to forthwith give information.—There is no

statutory obligation to inform about offences not mentioned in s. 39
and failure to inform will not be punishable.5 This provision cannot
be used to determine the locus of the person filing a complaint.6

(i) When obligation under section ceases?—Where

information of the fact of the crime is once made to reach the police,
the object of the section is fulfilled, and no further duty is imposed
by this section.7
(ii) Punishment for breach of obligation.—Section 39
enjoins on a person witnessing the commission of an offence to
inform the nearest police officer or Magistrate. A failure to do so is
an offence under s. 202, I.P.C.8

(iii) Failure to give information must be intentional.—Where

one lambardar, to the knowledge of others, directs the village
chowkidar to report a case of burglary to the police station which
direction the chowkidar disobeys, it cannot be said that any of the
lambardars had intentionally failed to give information.9 At the
same time, it cannot be said that a man seeing the perpetration of a

1. 54 Mad 68 (71) : 59 M L J 677.

2. AIR 1941 Pat 550 (558), dissenting from 54 Mad 68.
3. T. S. John v. State of Kerala. 1984 Cr LJ 753 (Ker) : 1983 M L J (Cri) 161 : (1983) Ker
LT 156 : 1983 KLN 114 : 1983 (1) Cr LC 357.
4. AIR 1941 Rang 324.
5. Dr. Satyasasheel Nandlal Naid v. State of Maharashtra, II (1996) CCR 222 (Bom).
6. O. P. Saxena v. State, II (1996) CCR 297 (Del).
7. Rat 674 (675), following 20 Cal 316. See also 7 Mad 436.
8. 27 Mad 271 (289) ; 21 Cr LJ 486 : 16 NLR 30 ; AIR 1964 Pat 62. See also ss. 118.
120, 154 and 176. I.P.C. and for false information, s. 177, I.P.C.
9. 5 PR 1889 (Cr).
216 Ch. IV-B.-Aid to the Magistrates and the police [S. 39
crime and not giving information to anyone else is an accomplice
and can be put in the dock with the actual offenders.1

(iv) Failure to report offence, no abetment.—Where it is not

proved that intention of the accused in omitting to report an offence
under s. 39 of the Cr. P.C. was with a view to aiding the commission
of the offence, the accused is not guilty of abetment.2
(v) Person not giving information—Effect on his
evidence.—Under s. 39, Cr. P.C., a person who is aware of the
intention of the commission of a serious offence like murder and
does not lay information to the nearest Magistrate or the police
officer, is guilty of an offence. Such a person is practically a
consenting party to the crime and an accomplice. Where, therefore,
there is no reasonable excuse for the witness for not informing
authorities, his evidence stands discredited.3

40. Duty of officers employed in connection with the

affairs of a village to make certain report.—(1) Every
officer employed in connection with the affairs of a
village and every person residing in a village shall
forthwith communicate to the nearest Magistrate or to
the officer in charge of the nearest police station,
whichever is nearer, any information which he may
possess respecting—
(a) the permanent or temporary residence of any
notorious receiver or vendor of stolen property in
or near such village ;
(b) the resort to any place within, or the passage
through, such village of any person whom he
knows, or reasonably suspects, to be a thug,
robber, escaped convict or proclaimed offender ;
(c) the commission of, or intention to commit, in or
near such village any non-bailable offence or any
offence punishable under section 143, section
144, section 145, section 147, or section 148 of
the Indian Penal Code (45 of 1860) ;
(d) the occurrence in or near such village of any
sudden or unnatural death or of any death under
suspicious circumstances or the discovery in or
near such village of any corpse or part of a corpse,
in circumstances w h i c h lead to a reasonable
suspicion that such a death has occurred or the

1956 Cr L J 777 : AIR 1956 SC 399.

2. See 21 IC 658 : 14 Cr LJ 610. See also 49 IC 607 : 20 Cr LJ 191.
3. ILR (1956) Hyd 205 : 1956 Cr LJ 887 : AIR 1956 Hyd 99.
S. 40] Duty of officers to make certain reports 217

disappearance from such village of any person in

c i r c u m s t a n c e s w h i c h l e a d to a reasonable
suspicion that a non-bailable offence has been
committed in respect of such person ;
(e) the commission of, or intention to commit, at any
place out of India near such village any act which,
if committed in India, w o u l d be an offence
punishable under any of the following sections of
the Indian Penal Code (45 of 1860), namely, 231
to 238 (both inclusive), 302, 304, 382, 392 to
399 (both inclusive), 402, 435, 436, 449, 450,
457 to 460 (both inclusive), 489A, 489B, 489C
and 489D ;
(f) any matter likely to affect the maintenance of
order or the prevention of crime or the safety of
person or property respecting which the District
Magistrate, by general or special order made with
the previous sanction of the State Government,
has directed him to communicate information.
(2) In this section ;
(i) "village" includes village-lands ;
(ii) the expression "proclaimed offender" includes
any person proclaimed as an offender by any Court
or authority in any territory in India to which this
Code does not extend, in respect of any act which
if committed in the territories to which this Code
extends, would be an offence punishable under
any of the following sections of the Indian Penal
Code (45 of 1860), namely, 302, 304, 382, 392 to
399 (both inclusive), 402, 435, 436, 449, 450
and 457 to 460 (both inclusive) ;
(iii) the words "officer employed in connection with
the affairs of the village" means a member of the
panchayat of the village and includes the headman
and every officer or other person appointed to
perform any f u n c t i o n connected w i t h the
administration of the village.
Duty of village officer to make certain report
Synopsis

1. Legislative history, 218

2. Object of provision, 219
Officer emnloued in connection with the affairs of village. 219
218 Ch. IV-B.-Aid to the Magistrates and the police [S. 40
(i) Meaning, 219
(ii) Village headman, 219
(iii) Village accountant, 220
(iv) Village police officer, 220
4. Person residing in village, 220
5. Obligation to "communicate forthwith" information, 220
(i) "Forthwith" meanings, 220
(ii) Communication of information in possession, 220
(a) Rumour is not information, 220
(b) Duty to communicate information which he may
possess, 220
(iii) No duty to supply information already known to police, 221
(iv) Conviction under s. 176, I.P.C., for omission to give
information—Conditions, 221
(v) Effect of giving false information, 221
(vi) Order of compensation against person giving false
information to village headman, 221
6. "Resort to any place"—Meaning of (sub-s. (1) (all, 221
7. Duty to inform only non-bailable offences Isub-s. (1) (c) 1, 221
8. "In or near such village"—Meaning of [sub-s. (1) (d) 1, 222
9. Sub-section (1) (d) does not exclude the main offender, 222
10. Duty to report unnatural death, 222
(i) Unnatural death 222 .
11. Proclaimed offenders [sub-s. (2) (ii)], 223
12. Omission to inform presence of proclaimed offender—Proof of
proclamation, 223

1. Legislative history*—Section 40 corresponds to s. 45 of the

old Code. It is substantial reproduction of the old provisions with the
following changes making the provisions more intelligible :
(i) The marginal note to the section from "village headmen,
accountants, land holders and others bound to report
certain matters" is changed to "duty of officers employed in
connection with the affairs of a village to make certain
report."
(ii) In accordance with the recommendations of the Joint
Committee the description of various officers in old sub-s.
(i) as "village headmen, village accountants, village
watchman, village police officer, owjier or occupier of land
and the agent of any such owner or occupier in charge of the
management of that land and every member of a village
panchayat other than a judicial panchayat (where such
panchayat, by whatever name called is constituted under
any law for the time being in force) and eveiy officer
employed in the collection of revenue or rent of land on the
part of the Government or the court of wards", have been
substituted by the words "officer employed in connection
with the affairs of a village and every person residing in a
village."

(iii) In the end of the cl. (a) of sub-s. (1), the words "or near such
village" have been substituted for the words "in any village
of which he is headman, accountant, watchman, or police
S. 40] Duty of officers to make certain reports 219
officer, or in which he owns or occupies land, or is agent, or
collects revenue or rent."
(iv) In cl. (ii) of sub-s. (2), the words "in any territory of India to
which this Code does not extend" have been substituted for
the words "established or continued by the Central
Government outside India". Further, after the words "if
committed in" the words "the territories to which this Code
extends" have been substituted for the word "India".
(v) Clause (iii) has been merely inserted in sub-s. (2} to clarify
the meaning of the term "officer employed in connection
with the affairs of the village". Sub-section (3) of the old
provision has been omitted.

2. Object of provision.—The provisions of s. 40, Cr. P.C., are

not intended to be punitive in themselves, but are intended to
facilitate information as to the commission of an offence and
thereby enable steps being taken in the investigation of the crime.1
The object of the Legislature is to ensure that information is not
intentionally withheld by those who would be most competent to give
it. Where the police have already received information of the offence,
the obligation of communicating under this section ceases.2 So also
where the police officer to whom the report of a death ought to have
been made under the section was himself present at the death.3

There is no statutory obligation to inform about offences not

mentioned in s. 39 and failure to inform will not be punishable. 4
This provision cannot be used to determine the locus of the person
filing a complaint.5

3. Officer employed in connection with the affairs of village

(i) Meaning.—This expression has been defined to mean a
member of the village panchayat and includes the headman and
every officer or other person appointed to perform any function
connected with the administration of the village, like a lekhpal or a
gram panchyat adhikari or village chowkidar. 6 Certain village
officers are illustrated below.

(ii) Village headman.'—In Madras, a village Munsif or village

Magistrate was a headman 7 and he was bound to report under the
section, but not a village Munsifs peon.8 In sending his report under
s. 40, Cr. P.C., a village Munsif was not acting in his capacity as a
Magistrate, being there called specifically a village headman, nor
was he a public servant removable only by or with the sanction of
the State Government.9 In Central Provinces, every Mukaddam and

1. 65 IC 626 : 23 Cr L J 162 : 53 Bom 184 : AIR 1929 Bom 12.

2. 7 Mad 436 : 1 Weir 102.
3. See Rat 778.
4. Dr. Satyasasheel Nandlal Naid v. State of Maharashtra, II (1996) C C R 222 (Bom).
5. O.P. Saxena v. State. II (1996) C C R 297 (Del).
6. See s. 40 (2) (lil).
7. 32 Mad 258 (FB).
8. See 1 M a d 266 : l,Weir 196.
9. AIR 1937 M a d 578. See also 58 Mad 787 : 69 M L J 608.
220 Ch. IV—B.-Aid to the Magistrates and the police (S. 40
Kotwar performed the duties of a village headman and was therefore,
bound to report.1 In Punjab, a Zaildar was not a village headman.2
(iii) Village accountant.—In s. 90 of the Code of 1872, a village
accountant was not one of persons bound to report.3 But he was
expressly mentioned in s. 45 of the Code, 1898.

(iv) Village police officer.—The ancient village system of

police, as regulated by Bombay Act, VIII of 1967, remained unaffected
by the Code, except where it contained a specific provision. Under the
local law, the police patel had to do much more than merely to
inform the police under s. 45 of the old Code.4

4. Person residing in village.—Every person residing in a

village is also bound to communicate the information respecting the
matters enumerated in the section to the nearest Magistrate or to the
officer in charge of the nearest police station. But a non-resident co-
sharer, who has taken no active part in the management of the
estate, cannot in addition to the resident owner be convicted under s.
154 or 155, I.P.C., for failure to communicate.5

5. Obligation to "communicate forthwith" information

(i) "Forthwith" meanings—The word "forthwith", in sub-s. (1),
must be construed with reference to the object of the enactment.6
When a statute enacts that an act is to be done "forthwith", it means
that the act is to be done within a reasonable time.7 Seven or eight
hours' delay may amount to not giving information forthwith.8

(ii) Communication of information in possession.—The

village officer and every person residing in the village are under
obligation to communicate "any information which he may possess"
respecting the enumerated matters.
(a) Rumour is not information.—Mere rumour is not
information.9 Section 40 makes it incumbent upon a person bound to
report, to report only such information as he possesses to his own
knowledge relating to matters mentioned in the section. It does not
require him to communicate every rumour prevalent in the village.10
(b) Duty to communicate information which he may possess.—The
word "possess" has been substituted for the word "obtain" in 1923.
The word "obtain" did not cover information obtained by personal
observation as the word would mean "obtain by making enquiries".
Further, the word implied an obligation to seek the information. As
a result of the substitution of the word "possess" for "obtain", the

7 NLR 101 ; 66 IC 1001 ; 23 Cr L J 345.

19 PR 1886 (Cr) ; 25 PR 1894 (Cr).
3. See 1 Mad 266.
See 19 Bom 612.
5. 7 C L R 289followed in 8 CWN 908.
6. Rat 784.
Wharton's Law Lexicon.
8. Rat 784.
20 AWN 207.
10. 5 PLT 505 : AIR 1924 Pat 691.
S. 40] Duty of officers to make certain reports 221
duty is only to give i > j t nation which one possesses and not
information w h i c h he may possibly obtain by making enquiries.1

(iii) No duty to supply information already known to

police.—Where the police are already informed of a fact, there is no
obligation to repeat the information.2 The provisions of the section
ought not to be put in force for purposes of vexation. Where
information is given to the nearest Magistrate or police by one of the
persons bound to give such information, it is not proper that every
other person bound to give information should be prosecuted for not
having done so.3

(iv) Conviction under s. 176, I.P.C., for omission to give

information—Conditions.—To support a conviction under s. 176,
I.P.C., for omitting to give information, proof is required that (i) a
specified offence has been committed by some one ; (ii) that the
accused had knowledge of it ; (iii) that the accused holds a position
which raises the obligation under this section4 ; and (iv) that he
wilfully omitted to give the information.5

(v) Effect of giving false information.—A false complaint to

a nearest Magistrate or to the officer in charge of the nearest police
station is an offence under s. 211, I.P.C., when the information is
such that such person is bound to communicate under the section.6
However, s. 177, I.P.C., does not apply where false statement has been
made to police by person who was under no legal obligation or who
was not legally bound to give that information, although such person
may be liable under s. 182, I.P.C.7

(vi) Order of compensation against person giving false

information to village headman.—A person who gives
information to the village headman of an offence, which the latter
duly transmits to the police as required by s. 40, is a person that
gives information to the police within the meaning of s. 250 of the
Code, and if the information is found to be false or vexatious, the
court may properly order him to pay compensation.8 The position
would be otherwise if the offence complained of is one which does
not require information to be given under this section.9

6. "Resort to any place"—Meaning of [sub-s. (1) (a)\.—The

bringing of a suspected robber under arrest to a village and releasing
him would not amount to the resorting to or passage through the
village of a suspected robber within the meaning of sub-s. (1) (a).10
7. Duty to inform only non-bailable offences [sub-s. (1) (c)\.—
The duty to give information under sub-s. (1) (c) arises only when

See 5 PLT 505 ; 25 Cr LJ 972 (974).

2. 65 IC 626 : 23 Cr L J 162.
4 Cal 623, followed in 20 Cal 316. See also 7 Mad 436 : 1 Weir 102 ; 11 Cal 619 : 10
IC 104.
1 Mad 266 ; 34 PR (Cr) 1882 ; 53 Bom 184 (186).
5. 22 W R (Cr) 42.
32 Mad 258 (FB) ; 31 Mad 506, not approved.
ILR (1937) All 162 ; AIR 1936 All 788.
8. 27 M L J 37, dissenting from 25 Mad 667.
9. 42 Mad 258.
10. 30 PR 1887 (Cr).
222 Ch. IV—B.-Aid to the Magistrates and the police [S. 40
there is information of the commission of, or intention to commit
an offence under ss. 143, 144, 145, 147, 148 or s. 149, I.P.C. or a non-
bailable offence. Where the only information that a village Munsif
had was that a jewel was missing, he had no information of
commission of an offence, which he was bound to communicate to
the Magistrate or police under s. 40 (1) (c).1 Further, there is no duty
to report bailable offences.2

8. "In or near such village"—Meaning of [sub-s. (1) (dj.—

Where a suicide took place in a village which was at a distance of a
mile from the village of the land-owner, and there was another
village and a nallah in between the two villages, the village where the
suicide took place could not be said to be near the village where the
landlord lived.3
9. Sub-section (1) (d) does not exclude the main offender.—
See 54 Mad 68, cited under s. 39, supra.
10. Duty to report unnatural death.—Section 40 (1) (d) is
designed to impose on village headmen etc., the duty of reporting
suspicious and unnatural deaths.4 This duty was held to be intended
to be done by a person only when such occurrence took place at or
near the village, of which he was headman, or, in which he owned or
occupied land etc.5 It was earlier held6 that it was not necessary, in
order to support a conviction against a person for not giving
information of an occurrence falling under cl. (d) of sub-s. (1), to
show that the death actually occurred on his land, when the
circumstances disclosed show that a body has been found under
circumstances denoting that the death was sudden, unnatural or
suspicious; the finding of the body being a fact from which a court
might reasonably infer, in the absence of evidence to the contrary,
that the death took place there. After the amendment of cl. (d) of sub-
s. (1), it is the duty of the persons mentioned in the section to report
the discovery of any corpse found in or near the village under
suspicous circumstances irrespective of the question of place of
death.
(i) Unnatural death.—However, unnatural, in the ordinary
sense of the word, the cause of a death might be, it would not come
within the meaning of the word "unnatural" so as to require it to be
reported immediately, unless it occurred fairly soon after the cause.
A person cannot be convicted under the section for an omission to
make a report of a suspicious death, if he honestly believes that there
was no necessity for him to make the report and the view held by
him is a reasonable view.7 The discovery of a dead body in a stream
may give rise to a suspicion that death had occurred from unnatural
causes or under suspicious circumstances within the meaning of old

9 Cr LJ 224 : 1 IC 245
32 Mad 258' (270) (FB). See also 30 PR 1887 'Cr).
3. AIR 1954 HP 67.
1 Weir 101.
23 WR (Cr ) 60. This has now been specifically provided for. See sub-s. (1) (d).
See 11 Cal 619.
AIR 1922 Nag 87 : 23 Cr LJ 345.
S. 40] Duty of officers to make certain reports 223
s. 40 (1) (d).1 Similarly, the suicide of a person may amount to an
unnatural death within the meaning of section.2

11. Proclaimed offenders [sub-s. (2) (ii)].—The persons

included in the expression "proclaimed offenders" in s. 40, sub-s. (2),
cl. (ii), are persons over and above those to whom the words in their
ordinary signification apply, and who might, but for this
Explanation, have escaped out of the category of "proclaimed
offenders". 3 The Explanation clause in the section dealing with
"proclaimed offenders" does not in any way apply to persons
proclaimed as offenders for any act committed in India. It applies
exclusively to acts which, if committed in India, would be punishable
under certain sections.4 The term "proclaimed offender" as used in s.
40 must be taken not in any technical sense but in its obvious
general meaning. If a proclamation has been made in respect of an
accused person under s. 82, it is sufficient to constitute him a
proclaimed offender under s. 40, and the fact that the proclamation
was not made strictly in accordance, with the terms of s. 82 does not
render such person a proclaimed offender any the less.5

12. Omission to inform presence of proclaimed offender—

Proof of proclamation.—In a case for omission to inform the police
of the presence of a proclaimed offender, it is the duty of the
prosecution to prove the fact of proclamation. Proof of attachment
and sale of property of the offender under s. 83 is insufficient.6

30 PR 1887 (Cr).
53 Bom 184 (187) : AIR 1929 Bom 94.
3. 1901 A W N 10.
Per Blair, J., Ibid.
5. AIR 1938 Oudh 80 : 39 Cr LJ 154.
See 7 Mad 436. But see AIR 1938 All 220 ; AIR 1938 Oudh 80.