FORUM: Supreme Court of India.
BENCH: Justice Arun Mishra, Justice Indira Banerjee, Justice Vineet Saran, Justice M.R. Shah, Justice S. Ravindra Bhat.
CASE NO.: Special Leave Petition (Crl.) Diary No. 39528/2018.
DATE OF DECISION: 31-08-2020.
A Constitution Bench of the Hon'ble Supreme Court in the case of Mukesh Singh v. State(NCB) has finally settled a long drawn issue of what happens to a prosecution where the same officer who was the first informant continues to be the investigating officer, and has held that there is no automatic apprehension of bias when the informant and the investigating officer (IO) is the same, and such cases will have to be decided on a case-to-case basis.
PROCEDURAL BACKGROUND:
Back in 2018, a three-judge Bench of the Supreme Court in the case of Mohanlal v. State of Punjab had held that the trial stands vitiated in case the informant and the IO are the same person, due to a presumption of bias being established and the accused is entitled to acquittal on the said ground. It also specified that the benefit of the same will not be extended to trials and appeals pending as of the date of the judgment.
The correctness of Mohanlal judgment was, however, questioned by a two-Judge Bench in the case of Mukesh Singh v. State (Narcotic Branch of Delhi). In that case, the Bench of Justices UU Lalit and MR Shah failed to agree with the decision in the Mohanlal case and considered it appropriate to refer the said case to a larger bench consisting of atleast three judges.
The case was subsequently placed before the instant Constitution Bench for determination.
ISSUE:
Whether an investigation under the Narcotics Drugs and Psychotropic Substances Act (Hereinafter, NDPS Act) will get vitiated merely on the ground of apprehension of bias when the informant is the investigating officer?
ARGUMENTS:
The Appellants echoed the observations made in Mohan Lal judgment and its logic of apprehension of bias. An attempt was made by the appellants to interpret Sections 42 and 52 of the Act. Section 52(3) states that an officer who conducts an arrest/search/seizure under Section 42, must turn over the person/items to an officer empowered to investigate the case under Section 53. Hence, they tried to point out that even the legislature intended that officers making search/seizure/arrest and officers empowered to investigate should not be the same person. The role of an officer under Section 42 is limited to effect entry, search, seizure, and arrest. Hence, an officer under Section 42 has no power of investigation.
The appellants contended that the scheme of the NDPS Act needs to be taken into account. Section 54 of the Act gives rise to the presumption that the accused has committed an offence and thereby places the reverse burden of proof upon the accused who is found to be in possession of the substance and which he fails to account for satisfactorily. Hence, the recovery and possession of the substance is a vital factor of investigation under the Act. It was further contended on behalf of the appellants that if the accused is found to be in possession of the prohibited substance, Section 54 gives rise to a presumption of commission of offence and Section 35 gives rise to a presumption of the culpable mental state. 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/officer. Therefore, in order to protect the interest of the accused, the Act requires the recovery and the investigation of the fact need to be done by different persons, i.e., by officers empowered under section 42 and 53.
On the other hand, Respondents argued the Court in Mohan Lal 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; 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; disregarded the principle enunciated in the case of H.N. Rishbud v. State of Delhi that illegality in investigation has no direct bearing on cognizance and a valid police report is not necessarily the foundation for the Court to take cognizance; did not deal with Section 465 of the Cr.P.C. under which any illegality, whether before or during trial or in any other proceeding, will not justify reversal of any finding, sentence or order unless a failure of justice is occasioned thereby; overlooked the rule that an objection to an illegality if not raised at the right stage will be deemed to have been waived; did not consider the principle that mala fides have to be established and not inferred and that mala fides are of secondary importance if the trial otherwise discloses impeccable evidence; and misconstrued both the scheme of the NDPS Act and the principle of reverse burden; and failed to take notice of the principle that investigation is exclusively reserved for the investigating agency under the Act, functions of the investigating agency and the judiciary are complementary and not overlapping and interference is warranted only is a clear case of abuse of power which will be decided in the facts of each case.
It was further submitted by the Respondents that a mere technicality should not be made the sole ground to vitiate the entire investigation and subsequent acquittal and rather a case must be tried on its merits, otherwise, so many cases with good evidence will be thrown out on a mere technicality.
COURT OBSERVATIONS:
The Constitutional Bench made a glaring observation that 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. (Para 9.1)
The Court further went on to consider the relevant Sections of NDPS Act and observed that Section 52 of the NDPS Act mandates that any officer arresting a person under Sections 41, 42, 43 or 44 to inform the person arrested of the grounds for such arrest. Sub-section 2 of Section 52 further provides that every person arrested and article seized under warrant issued under sub-section 1 of Section 41 shall be forwarded without unnecessary delay to the Magistrate by whom the warrant was issued. As per sub-section 3 of Section 52, every person arrested and article seized under sub-section 2 of Section 41, 42, 43, or 44 shall be forwarded without unnecessary delay to the officer in charge of the nearest police station, or the officer empowered under Section 53. That thereafter the investigation is to be conducted by the officer in charge of a police station. (Para 9.3.6)
Section 53 does not speak that all those officers to be authorised to exercise the powers of an officer in charge of a police station for the investigation of the offences under the NDPS Act shall be other than those officers authorised under Sections 41, 42, 43, and 44 of the NDPS Act. It appears that the legislature in its wisdom has never thought that the officers authorised to exercise the powers under Sections 41, 42, 43 and 44 cannot be the officer in charge of a police station for the investigation of the offences under the NDPS Act. (Para 9.3.8)
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. (Para 9.5)
The Court noted that whether the investigation conducted by the concerned informant was fair investigation or not is always to be decided at the time of trial. The concerned informant/investigator will be cited as a witness and he is always subject to cross-examination and the testimony of police personnel will be treated in the same manner as testimony of any other witness and there is no principle of law that without corroboration by independent witnesses his testimony cannot be relied upon. As observed and held by this Court in the case of Devender Pal Singh v. State (NCT of Delhi), the 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. (Para 10)
The Court further referred to Illustration (e) to Section 114 of the Indian Evidence Act. As per the said provision, in law if an official act has been proved to have been done, it shall be presumed to be regularly done. Therefore, merely because the complainant conducted the investigation that would not be sufficient to cast doubt on the entire prosecution version and to hold that the same makes the prosecution version vulnerable. The matter has to be left to be decided on a case to case basis without any universal generalisation. (Para 10.1)
The Court further noted that the presumption under the Act is against the accused as per Sections 35 and 54 of the NDPS Act. Thus, in the cases of reverse burden of proof, the presumption can operate only after the initial burden which exists on the prosecution is satisfied. At this stage, it is required to be noted that the reverse burden does not merely exist in special enactments like the NDPS Act and the Prevention of Corruption Act, but is also a part of the IPC – Section 304B and all such offences under the Penal Code are to be investigated in accordance with the provisions of the Cr.P.C. and consequently the informant can himself investigate the said offences under Section 157 Cr.P.C. (Para 10.3)
FINAL RULING:
The Court after citing all the observations and relevant provisions of NDPS Act as well as that of Cr.P.C. held that there is no reason to doubt the credibility of the informant and doubt the entire case of the prosecution solely on the ground that the informant has investigated the case.
Solely on the basis of some apprehension or the doubts, the entire prosecution version cannot be discarded and the accused is not to be straightway acquitted unless and until the accused is able to establish and prove the bias and the prejudice. (Para 11)
The Court further held that, considering the NDPS Act being a special Act with special procedure to be followed under Chapter V, and as observed hereinabove, 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, we are of the opinion that 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.
While concluding the judgment, the court made its stand clear on the controversial decision of Mohan Lal case as it declared:
“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 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.”
(This Case Analysis is authored by Mr. Devesh Saxena, Managing Partner)
(Inputs and Research work were provided by Mr. Abhishek Kumar, Intern at S&D Legal Associates)
(Image Source: TOI)