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SUPREME COURT OF INDIA
ARUN MISHRA, INDIRA BANERJEE, VINEET SARAN, M.R. SHAH, S. RAVINDRA BHAT, JJ.
Mukesh Singh – Petitioner
Versus
State (Narcotic Branch of Delhi) – Respondent
Special Leave Petition (Criminal) Diary No. 39528 of 2018, Special Leave Petition (Criminal) Nos. 5648, 5894, 8499 of 2019
Decided On : 31-08-2020
(A) Narcotic Drugs and Psychotropic Substances Act, 1985 – Sections 41, 42, 43, 49, 50, 51, 52, 53, 54, 55, 57 and 57A – Investigation of drug offences – Investigation includes even search and seizure – NDPS Act does not specifically bar informant/complainant to be an investigator and officer in charge of a police station for investigation of offences under NDPS Act – In a case where informant himself is investigator, by that itself cannot be said that investigation is vitiated on the ground of bias or like factor – Question of bias or prejudice would depend upon facts and circumstances of each case – Merely because informant is investigator, by that itself investigation would not suffer vice of unfairness or bias and on sole ground that informant is investigator, accused is not entitled to acquittal – Matter has to be decided on a case to case basis. (Paras 9.4, 9.5 and 12)
(B) Constitution of India – Article 21 – Right to fair investigation – Whether investigation conducted by concerned informant was fair investigation or not is always to be decided at the time of trial – Concerned informant/investigator will be cited as a witness and he is always subject to cross-examination – There may be cases in which even case of prosecution is not solely based upon deposition of informant/informant-cum-investigator but there may be some independent witnesses and/or even other police witnesses – Testimony of police personnel will be treated in the same manner as testimony of any other witness and there is no principal of law that without corroboration by independent witnesses his testimony cannot be relied upon – Presumption that a person acts honestly applies as much in favour of a police officer as of other persons and it is not judicial approach to distrust and suspect him without good grounds therefor – Question of prejudice or bias has to be established and not inferred – Question of bias will have to be decided on facts of each case. (Paras 10 and 11)
(C) Constitution of India – Article 21 – Right to fair trial – Procedure established by law under Article 21 cannot be any procedure but has to be a just and a reasonable procedure – Right of accused to have a fair and independent investigation and trial, being inherent has been read into statutes not confirming to fair procedure to make them constitutionally compatible. (Para 3.3)
(D) Criminal Procedure Code, 1973 – Section 173 – Crime investigation – Investigation of an offence is a field exclusively reserved for Police whose powers remain unfettered as long as they remain complaint with provisions of Code of Criminal Procedure – It is only in extraordinary circumstances of abuse of authority that Court may interfere – Unless facts of a particular case show prejudice, no rule can be judicially enacted that in no case can a complainant be investigating officer – Under 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 the same and then investigating it – Abuse of power cannot be presumed – Fairness of investigation would always be a question of fact – In absence of an express prohibition in code barring investigation by a complainant himself, statutory incorporation of rule that credit should be given to public officers who have acted in limits of their authority – Law is that invalidity of investigation has no relation to competence of Court – Object of the Code that matters of failure of justice should be left to discretion and vigilance of Courts. (Paras 6.10, 6.11 and 9.1)
Facts of the case:
Having doubted the correctness of the decision of this Court 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, initially by order dated 17.01.2019 the matter was referred to a larger Bench consisting of three Judges. A three Judge Bench vide order dated 12.09.2019 has referred to a larger Bench of five Judges to consider the matter. That is why, present matter is placed before the Bench consisting of five Judges.
Findings of Court:
There is no specific bar against conducting the investigation by the informant himself and in view of the safeguard provided under the Act itself, namely, Section 58, there cannot be any general proposition of law to be laid down that in every case where the informant is the investigator, the trial is vitiated and the accused is entitled to acquittal. Similarly, even with respect to offences under the IPC, there is no specific bar against the informant/complainant investigating the case.
Result : Reference answered.
Key Points: - NDPS Act does not specifically bar informant/complainant from being investigator or officer in charge of police station for NDPS offences (!) [p_9.4] - Testimony of police personnel treated same as any witness; no rule requiring corroboration by independent witnesses (!) (!) - Under Cr.P.C., no bar to police officer receiving information, recording it, and investigating; abuse of power not presumed; fairness is question of fact (!) [p_6.10] - Investigation by informant does not automatically vitiate trial or entitle accused to acquittal; bias/prejudice depends on facts of each case (!) [p_9.5] (!) - Decisions in Bhagwan Singh, Megha Singh, Rajangam, and Mohan Lal confined to their facts; no general rule that informant-investigator vitiates trial (!) (!) (!) (!) - Mohan Lal v. State of Punjab overruled; no absolute bar on informant investigating (!) (!) - Question of bias must be established, not inferred; decided case-by-case (!) (!) - NDPS Act safeguards (e.g., Sections 50, 52, 58) ensure fairness; informant subject to cross-examination at trial (!) (!) - Presumption under Evidence Act Section 114(e) applies to official acts unless contrary proved (!)
JUDGMENT :
M.R. SHAH, J.
1. Having doubted the correctness of the decision of this Court in the case of Mohan Lal vs. State of Punjab, (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, initially by order dated 17.01.2019 the matter was referred to a larger Bench consisting of three Judges. A three Judge Bench vide order dated 12.09.2019 has referred to a larger Bench of five Judges to consider the matter. That is why, the present matter is placed before the Bench consisting of five Judges.
2. At the outset, it is required to be noted that the decision of 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, came up for consideration subsequently before this Court in the case of Varinder Kumar vs. State of Himachal Pradesh, 2019 (3) SCALE 50 : (2020) 3 SCC 321 and a three Judge Bench of this Court [out of which two Hon’ble Judges were also in the Bench in the case of Mohan Lal (supra)] held that the decision of this Court in the case of Mohan Lal (supra) shall be applicable prospectively, meaning thereby, all pending criminal prosecutions, trials and appeals prior to the law laid down in Mohan Lal (supra) shall continue to be governed by individual facts of the case. The relevant observations in the case of Varinder Kumar (supra) to be referred and considered herein-below.
3. Shri Sushil Kumar Jain, learned Senior Advocate appearing on behalf of the accused - Devendra Singh has made the following submissions in support of his submission that as rightly held by this Court in the case of Mohan Lal (supra) in a given case where the complainant himself has conducted the investigation the entire trial would be vitiated and the accused would be entitled to acquittal:
3.1 The decision in Mohan Lal (supra) rests and is based upon substantive constitutional foundation and principles of criminal jurisprudence. In the said decision in para-5, this Court specifically dealt with and considered the question whether in a criminal prosecution, it will 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 and in such a case, is it necessary for the accused to demonstrate prejudice, especially under laws such as the NDPS Act, carrying a reverse burden of proof. In the said decision, this Court considered in detail the reverse burden of proof under Sections 35 and 54 of the NDPS Act. That thereafter, this Court had considered in detail the constitutional guarantee of fair trial to an accused under Article 21 which takes within its fold “Fair Investigation.” Thereafter it is observed by this Court that in the nature of the reverse burden of proof, the onus will lie on the prosecution to demonstrate on the face of it that the investigation was fair, judicious with no circumstances that may raise doubts about its veracity. It is further observed that if the investigation itself is unfair, to require the accused to demonstrate prejudice will be fraught with danger vesting arbitrary powers in the police which may well lead to false implication also. Thereafter this Court considered in paragraphs 17 and 29 the role and obligations of the investigator and the investigation itself. Thereafter after having placed reliance on the decisions of this Court in the cases of Bhagwan Singh vs. State of Rajasthan, (1976) 1 SCC 15, Megha Singh vs. State of Haryana, (1996) 11 SCC 709 and State by Inspector of Police, NIB, Tamil Nadu vs. Rajangam (2010) 15 SCC 369, this Court specifically observed and held 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 acqui
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