Probe By Informant

Source: The Hitavada      Date: 20 Aug 2018 15:43:29










An investigation is a systemic collection of facts for the purpose of describing what occurred and explaining why it occurred. The word systemic suggests that it is more than a whimsical process.

IN THE judgement of the case –Mohanlal v. The State of Punjab, delivered on August 16, 2018, a 3-Judge bench of the Supreme Court, consisting of Justice Ranjan Gogoi, Justice R. Banumathi and Justice Nanin Sinha have held that 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.

Justice must not only be done, but must appear to be done also. Any possibility of bias or a predetermined conclusion must be excluded. The court has also added to the ruling that this requirement is all the more imperative in laws like NDPS, which carry reverse burden of proof.

The appellant here, had assailed his conviction under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985, sentencing him to RI for 10 years and a fine of Rs. one lakh, with a default stipulation.
An FIR was lodged on February 3, 1997 by the PW-1, Sub-Inspector Chand Singh of Balianwali Police Station, that while on patrol duty, he was accompanied by Darshan Singh, Sarpanch and Assistant Sub-Inspector Balwinder Singh.

The witness entertained doubts about the appellant upon seeing him. PW-4, Rajinder N. Dhoke IPS, a Gazetted Officer was called and the appellant was searched leading to recovery of 4 Kg of opium in a bag carried by him.
The consent memo was signed by the appellant. Assistant SI Darshan Singh registered the formal First Information Report (FIR) and handed over investigation to PW-1. Upon conclusion of investigation, the appellant was chargesheeted, put on trial and convicted.

According to the Supreme Court, the primary question for its consideration in this appeal was, whether in a criminal prosecution, it would be in consonance with the principles of justice, fair play and a fair investigation. If the informant and the Investigating Officer were to be the same person. In such a case, is it necessary for the accused to demonstrate prejudice especially under laws as NDPS Act, carrying a reverse burden of proof.

No explanation was forthcoming from the prosecution why Darshan Singh and Balwinder Singh were not examined despite service of summons on the official witness and issuance of bailable warrants against the private witness. In their absence, neither the consent memo nor the seal can be stated to have been proved. There was nine days’ delay in sending the sample for chemical analysis. No explanation was furnished in respect of the same.

PW-4 acknowledged that the recovery memo was not signed by the accused and the copies of documents were not supplied to the accused nor any memo in this regard was prepared in his presence. The consent memo only mentioned that he was the ASI, Phul.

The court has pointed out that in view of the conflicting opinions expressed by different two-Judge benches of this court, the importance of a fair investigation from the point of an accused as a guaranteed constitutional right under Article 21 of the Constitution of India, it was considered necessary that the law in this regard be laid down with certainty.

To leave the matter for being on the individual facts of a case, may not only lead to a possible abuse of powers, but more importantly will leave the police, the accused, the lawyer and the courts in a State of uncertainty and confusion which has to be avoided.

The apex court has stated that the view taken by a division bench of the Kerala High Court in the decision-Kader v. State of Kerala - 2001 Cr.LJ 4044 does not meet its approval. It tantamount to holding that the FIR was a gospel truth, making investigation an empty formality if not a farce. The right of the accused to a fair investigation and fair trial guaranteed under article 21 of the Constitution of India will stand negated in that event, with arbitrary and uncanalised powers vested with police in matters relating to the NDPS Act and similar laws carrying a reverse burden of proof.

An investigation is a systemic collection of facts for the purpose of describing what occurred and explaining why it occurred. The word systemic suggests that it is more than a whimsical process.

An investigator will collect the facts relating to the incident under investigation. The fact is a mere information and is not synonymous with the truth. Therefore, the court overruled the decision in Kader’s case and approved the view taken by the Kerala HC in the decision – Naushad v. State of Kerala 2000 ( 1) KLT 785.

In a criminal prosecution, there is an obligation cast on the investigator not only to be fair, judicious and just during investigation, but also that the investigation on the very face of it must appear to be so, eschewing any conduct or impression which may give rise to a real and genuine apprehension in the mind of an accused and not mere fanciful, that the investigation was not fair.

In the circumstances, if an informant police official in a criminal prosecution, especially when carrying a reverse burden of proof, makes the allegations, is himself asked to investigate, serious doubts will naturally arise with regard to his fairness and impartiality. It is not necessary that bias must actually be proved. It would be illogical to presume and contrary to normal human conduct, that he would himself at the end of the investigation submit a closure report to conclude false implication with all its attendant consequences for the complainant himself. The result of the investigation would therefore be a foregone conclusion.

The discussion in the present case may not be understood as confined to the requirements of fair investigation under the NDPS Act only carrying a reverse burden of proof. In the decision – State of Punjab v. Baldev Singh (1999) 6 SCC 172, it has been observed that if the informant were to be made the investigating officer, it was bound to reflect on the credibility of the prosecution case.
The Supreme Court allowed the appeal. The prosecution was held to be vitiated because of the infraction of the constitutional guarantee of a fair investigation. The appellant was directed to be set at liberty forthwith unless wanted in any other case.