(Per: Hon'ble Mr. Justice I.A. Ansari)

Prefatorial Remarks

Article 21 of the Constitution of India guarantees fair trial. A fair trial is impossible if there is no fair investigation. In order to be a fair investigation, the investigation must be conducted thoroughly, without bias or prejudice, without any ulterior motive and every fact, surfacing during the course of investigation, which may have a bearing on the outcome of the investigation and, eventually, on the trial, must be recorded contemporaneously by the Investigating Officer at the time of investigation. A manipulated investigation or an investigation, which is motivated, cannot lead to a fair trial. Necessary, therefore, it is that the Courts are vigilant, for, it is as much the duty of the Court commencing from the level of the Judicial Magistrate to ensure that an investigation conducted is proper and fair as it is the duty of the Investigating Officer to ensure that an investigation conducted is proper and fair. A fair investigation would include a complete investigation. A complete investigation would mean an investigation, which looks into all aspects of an accusation, be it in favour of the accused or against him.

2. Article 21 of the Constitution of India, undoubtedly, vests in every accused the right to demand a fair trial. This right, which is fundamental in nature, casts a corresponding duty, on the part of the State, to ensure a fair trial. If the State is to ensure a fair trial, it must ensure a fair investigation. Logically extended, this would mean that every victim of offence has the right to demand a fair trial meaning thereby that he/she has the right to demand that the State discharges its constitutional obligation to conduct a fair investigation so that the investigation culminates into fair trial. The State has, therefore, the duty to ensure that every investigation, conducted by its chosen agency, is not motivated, reckless and that the Investigating Officer acts in due obedience to law. It is only when the State ensures that the investigation is fair, can it (the State) be able to say, when questioned, that the trial conducted was a fair trial. Article 21 of the Constitution of India, therefore, does not vest in only an accused the right to demand fair trial, but it also vests an equally important right, fundamental in nature, in the victim, to demand a fair trial. Article 21 of the Constitution of India does not, thus, confer fundamental right on the accused alone, but it also confers, on the victim of an offence, the right, fundamental in nature, to demand fair trial. (See, Sri Rana Sinha @ Sujit Sinha vs. The State of Tripura, reported in 2011(2) GLT 610).

3. The alleged violation of the above-stated principles is at the heart of the controversy in the present writ petition, wherein the writ petitioner is the unfortunate father, whose son was allegedly abducted and murdered.

4. The present one is a classic case demonstrating insensitive disinclination, on the part of the police, to exercise its power of investigation and disregard thereby the performance of the corresponding duty, which the law casts, in this regard, on the police. The insensitivity, so demonstrated, has adversely affected proper and effective investigation of the case.

5. As the days rolled by, a question has arisen, in this writ petition, and the question is: If a police officer, while investigating alleged commission of an offence of abduction of a civilian, his murder and/or causing disappearance of his dead body by an army personnel, can obtain custody of the person, who is subject to the Army Act, 1950, for the purpose of investigation of such a case? Yet another question, this writ petition has given rise to, is: If a demand is made by police for custody of such an accused person in order to have effective investigation by way of his custodial interrogation, can the Army Authorities resist handing over of the army personnel to the police, on the spacious plea of a