A Constitution Bench of the Supreme Court comprising Justice Arun Mishra, Justice Indira Banerjee, Justice Vineet Saran, Justice M.R. Shah and Justice S. Ravindra Bhatt has delivered a significant Judgment in the case of Mukesh Singh vs State (Narcotics Branch of Delhi) SLP (Criminal) No. 39528 of 2018, deciding correctness of the Judgment in the case of Mohan Lal v. State of Punjab reported in (2018) 17 SCC 627, taking the view that in case the investigation is conducted by the police officer who himself is the complainant, the trial is vitiated and the accused is entitled to acquittal.
Whether in case the investigation is conducted by the informant/police officer who himself is the complainant, the trial is vitiated and in such a situation, the accused is entitled to acquittal?
Submissions on behalf of Appellant/Accused:
- A fair investigation which is but the very foundation of a fair trial, necessarily postulates that the informant and the investigator must not be the same person.
- The officer or the raiding party which effects recovery are witnesses to the said fact which would constitute an offence and therefore investigation of the said aspect has to be carried out by an independent agency.
- The object of “fair and independent investigation” is to unearth the truth. The “fair and independent investigation” is a right of an accused flowing from Article 21 of the Constitution.
- A person accused of criminal offence punishable with a peril to his life or liberty, enjoys certain rights under the Constitution or through long standing development of criminal jurisprudence. Any action which impinges or affects those rights would be said to cause “prejudice to an accused”
- Law laid down by this Court in the case of Mohan Lal (supra) taking the view that in case the investigation is conducted by the police officer who himself is the complainant, the trial is vitiated and the accused is entitled to acquittal is a correct law.
- Right from Bhagwan Singh case till the recent judgment in the case of Varinder Kumar case, this Court is of the firm view that the complainant/informant and the investigator must not be the same person.
- If the complainant/informer and the Investigator are same persons, it will violate the principle of Rule against Bias which is a part of Principles of Natural Justice and included in Fundamental Right enshrined in Article 14 and 21 of the Constitution of India. In this regard he is relying upon para 14, 18 and 31 of Mohan Lal (Supra).
- In such cases, the complainant will always be interested in filing a charge sheet against the accused (which is normal human behavior). He will have personal bias against the accused and there will be no objectivity in the Investigation.
- The Accused will be deprived of his valuable rights of cross examining the complainant/informer and the Investigation officer separately if both are same.
- NDPS Act is a special statute and all provisions of Cr.P.C. have not been made applicable to the proceedings under the NDPS Act.
Contention of Government:
- Under the scheme of Cr.P.C., there is no bar on a police officer receiving information of commission of a cognizable offence, recording the same and then investigate it
- Section 465 of the Code provides that no finding, sentence or order passed by a court of competent jurisdiction shall be reversed or altered by a Court of Appeal on account of any error, omission or irregularity in the complaint, summons, warrant, proclamation, order, judgment or other proceedings before or during trial or in any enquiry or other proceedings under this Code, or any error or irregularity in any sanction for the prosecution, unless in the opinion of that Court, a failure of justice has in fact been occasioned thereby.
- “Fair and Proper investigation” in criminal jurisprudence has twin purpose, firstly, the investigation must be unbiased, honest, just and in accordance with law, secondly, the entire emphasis on a fair investigation has to be to bring out the truth of the case before the court of competent jurisdiction.
- Once these twin paradigms of fair investigation are satisfied, there will be the least requirement for the court of law to interfere with the investigation, much less quash the same, or transfer it to another agency.
- This Court in Mohan Lal (supra) proceeded sub-silentio Section 157 of the Code of Criminal Procedure under which investigation can be undertaken by the investigating officer on the basis of his own knowledge of the commission of a cognizable offence
- The Court in Mohan Lal (Supra) also ignored Illustration (e) to Section 114 of the Indian Evidence Act which permits the Court to raise a presumption that official acts have been regularly performed;
- An information report is not a condition precedent for setting criminal investigation to motion and an officer in charge of a police station can undertake the same even “otherwise”.
The Court Held:
- Therefore, considering Section 157 Cr.P.C., either on receiving the information or otherwise (may be from other sources like secret information, from the hospital, or telephonic message), it is an obligation cast upon such police officer, in charge of a police station, to take cognizance of the information and to reduce into writing by himself and thereafter to investigate the facts and circumstances of the case, and, if necessary, to take measures for the discovery and arrest of the offender.
- Take an example, if an officer in charge of a police station passes on a road and he finds a dead body and/or a person being beaten who ultimately died and there is no body to give a formal complaint in writing, in such a situation, and when the said officer in charge ofa police station has reason to suspect the commission of an offence, he has to reduce the same in writing in the form of an information/complaint. In such a situation, he is not precluded from further investigating the case.
- Under Section 173 Cr.P.C., the officer in charge of a police station after completing the investigation is required to file the final report/charge sheet before the Magistrate. Thus, under the scheme of Cr.P.C., it cannot be said that there is a bar to a police officer receiving information for commission of a cognizable offence, recording he same and then investigating it. On the contrary, Sections 154, 156 and 157 permit the officer in charge of a police station to reduce the information of commission of a cognizable offence in writing and thereafter to investigate the same.
- As per Section 51 of the NDPS Act, the provisions of the Cr.P.C. shall apply, insofar as they are not inconsistent with the provisions of the NDPS Act, to all warrants issued and arrests, searches and seizures made under the NDPS Act. Therefore, up to Section 52, the powers are vested with the officers duly authorised under Sections 41, 42, or 43 and thereafter so far as the investigation is concerned, it is to be conducted by an officer in charge of a police station.
- Therefore, as such, the NDPS Act does not specifically bar the informant/complainant to be an investigator and officer in charge of a police station for the investigation of the offences under the NDPS Act. On the contrary, it permits, as observed hereinabove. To take a contrary view would be amending Section 53 and the relevant provisions of the NDPS Act and/or adding something which is not there, which is not permissible.
- In the cases of reverse burden of proof, the presumption can operate only after the initial burden which exists on the prosecution is satisfied.
Answer of the Issue framed
- In a case where the informant himself is the investigator, by that itself cannot be said that the investigation is vitiated on the ground of bias or the like factor. The question of bias or prejudice would depend upon the facts and circumstances of each case. Therefore, merely because the informant is the investigator, by that itself the investigation would not suffer the vice of unfairness or bias and therefore on the sole ground that the informant is the investigator, the accused is not entitled to acquittal. The matter has to be decided on a case to case basis. A contrary decision of this Court in the case of Mohan Lal v. State of Punjab (2018) 17 SCC 627 and any other decision taking a contrary view that the informant cannot be the investigator and in such a case the accused is entitled to acquittal are not good law and they are specifically overruled.