Informant and Investigator must not be the same person for a fair investigation and prosecution

May 16, 2019 Ajay Garg

From the perspective of Judgment of Hon’ble Supreme Court in Mohan Lal Vs. State of State of Punjab (2018)SCC Online SC 974 and Subsequent judgments.

Recently, a very interesting and substantial question of law arose before a bench of three Judges of the Supreme Court in a case titled as Mohan Lal vs. State of Punjab and the same is as follows:-

“The primary question for our consideration in the present appeal is, 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. In such a case, is it necessary for the accused to demonstrate prejudice, especially under laws such as NDPS Act, carrying a reverse burden of proof.”

This case related to NDPS and as per the facts of the said case, on 03.02.1997 Sub-Inspector Chand Singh of Balianwali Police Station lodged an FIR. In it, he stated that while on patrol together with Darshan Singh (Sarpanch), and Asst. Sub-Inspector Balwant Singh, they saw the Appellant Mohan Lal and seized him. Having doubts, they called a gazetted officer in whose presence Mohan Lal was searched, “leading to recovery of 4 kg of opium in a bag carried by him.” A “consent memo” was drawn and signed by the Sarpanch Darshan Singh and S-I Chand Singh, and the seized opium separated into two samples (20 gms and 3.98 kgs). A “rukka” was handed over to AS-I Balwant Singh who then returned to the police station to register the FIR. An investigation was conducted, which ended in a Final Report being filed under Section 173 Cr.P.C., and ultimately led to Mohan Singh’s conviction.

Counsel for the Appellant raised a multitude of grounds as per the judgment. He argued that evidence was insufficient; both the Sarpanch and AS-I Balwant Singh were not examined as witnesses etc and on the top of this was the argument of the counsel relying on decisions in Bhagwan Singh v. Rajasthan[(1976) 1 SCC 15], Megha Singh v. State of Haryana [(1996) 11 SCC 709] and State v. Rajangam [(2010) 15 SCC 369] to argue that “the investigation was fundamentally flawed” as S-I Chand Singh could not have been the investigating officer after being the informant. Counsel for Punjab responded that the evidentiary lapses were inconsequential as those witnesses were relevant for facts already proved sufficiently. Further, she relied upon the NDPS Act casting the burden of innocence on an accused, under Sections 36 and 54, to argue that this had not been discharged. Lastly, she cited State of Punjab v. Baldev Singh [(1999) 6 SCC 172], Bhaskar Ramappa v. Karnataka [(2009) 11 SCC 690], and Surender v. Haryana [(2016) 4 SCC 617] to argue that the police investigation is not flawed or illegal merely because the informant continued as investigating officer.

The Supreme Court noticed many lacunas in the prosecution case: like (i) an illiterate person (Darshan Singh) has signed the consent memo, (ii) the seized narcotics were never sent to the Malkhana (the illegality of which he elaborates on further), (iii) non-examination of key witnesses, and (iv) delay in sending samples for analysis. None of these lapses were explained by the prosecution. For Justice Sinha, all these appear to be the result of that “primary question”. He notes that: “had the investigator been different from the complainant, the issues for consideration may have entirely been different.”

In Paragraphs 10, 11 and 12, the judgment seems to return to the “primary question”, and reminds us how harsh the NDPS Act is with its minimum 10 year prison term and reverse burden of innocence. It notes that a fair trial, “a constitutional guarantee” to an accused, “would be a hollow promise if the investigation in a NDPS case were not to be fair or raises serious questions about its fairness apparent on the face of the investigation.” He notes that a fair investigation is imperative, and then gives us a hint on how he will answer the question he framed:

If the investigation itself is unfair, to require the accused to demonstrate prejudice will be fraught with the danger vesting arbitrary powers in the police which may well lead to false implication also. Investigation in such a case would then become an empty formality and a farce. Such an interpretation therefore naturally has to be avoided. [Paragraph 12]

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. [Paragraph 14]

This lasting controversy is resolved in Paragraph 25 of Mohan Lal for clarifying the law as the present situation “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 answer is as follows:

It is therefore held that a fair investigation, which is but the very foundation of fair trial, necessary 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 has to be excluded. This requirement is all the more imperative in laws carrying a reverse burden of proof.

In concluding para, the prosecution was held to be vitiated because of the infraction of the constitutional guarantee of a fair investigation.

The said judgment was followed by different High Courts including the Hon’ble High Court of Delhi which reiterated that proceedings under the Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985 stand vitiated if the same person acts as the Investigating Officer (IO) and the complainant. The judgment was passed by Justice C. Hari Shankar. The court was hearing a petition filed by one Gurtej Singh Batth, challenging a judgment passed in August, 2014, whereby he was convicted under the NDPS, and was sentenced to 10 years rigorous imprisonment.

Mr. Batth had now claimed innocence and had also asserted that the proceedings stood vitiated because the IO was the complainant.

Justice Shankar relied on the judgments in the case of Mohan Lal v. State of Punjab and Arif Khan v. State of Uttarakhand and ruled that the proceedings in the case stood vitiated as the same person was the IO and the complainant. It observed, “In view of the law laid down in Mohan Lal (supra), therefore the fact that PW-1 Rajendra Verma was the I/O, as well as the complainant, completely vitiated the proceedings in the present case.”

Further, recently on 17-01-2019, a two judge bench of Supreme Court, expressed its disagreement with the view taken by a three-judge bench in Mohan Lal vs. State of Punjab where it held that that the accused is entitled to acquittal if informant and the investigator in NDPS cases is the same person. The bench comprising Justice UU Lalit and Justice MR Shah made this observation while hearing an SLP (Mukesh Singh vs. State) filed against conviction in an NDPS matter. The counsel (author) for the accused placed reliance on MohanLal vs. State of Punjab to contend that since the investigation in the present case was conducted by the Police Officer who himself was the complainant, the trial was vitiated and as such the petitioner-accused is entitled to acquittal.

Referring to the said judgment and also taking note of some other judgments on this aspect, the bench said: “We may prima facie express that we find it difficult to accept the view taken in Mohan Lal (Supra). Some of the decided cases have maintained a distinction in that where the investigation was conducted by the informant himself, appropriate weightage was given while appreciating the evidence. In a given case, where the complainant himself had conducted investigation, such aspect of the matter can certainly be given due weightage while assessing the evidence on record but it would be completely a different thing to say that the trial itself would be vitiated for such infraction. But Mohan Lal (Supra) has ruled that the trial itself would stand vitiated on that count.”

Observing that this matter require re- consideration by a Bench of at least three Hon’ble Judges, the bench directed the registry to place the papers before the he Chief Justice of Indiato constitute a Bench of appropriate strength to consider the matter. “The instant matter and the questions raised herein therefore need to be resolved at an early date.”, the bench added .

Subsequently, the Supreme Court led by three judge Bench in an appeal Varinder Kumar versus State of Himachal Pradesh which was against a conviction in an NDPS case was being considered by a bench comprising CJI Ranjan Gogoi, Justice Navin Sinha and Justice KM Joseph. The Supreme Court noted that the only issue for consideration left before it was whether an informant being the investigating officer vitiates the prosecution or not. The Court examined the precedent of Mohan Lal and observed that the facts of that case were extremely telling insofar as the default of the prosecution was concerned.

The Court noted that while the rights of individuals are important, equally important is the societal interest for bringing the offender to book and for the system to send the right message to all in the society.

“Individual rights of the accused are undoubtedly important. But equally important is the societal interest for bringing the offender to book and for the system to send the right message to all in the society —be it the law¬abiding citizen or the potential offender.”

Human rights are not only of the accused but also of the victim, the Court said.

Human Rights’ are not only of the accused but, extent apart, also of the victim, the symbolic member of the society as the potential victim and the society as a whole.”

The judgment in Mohan Lal cannot be used as a springboard by an accused for being catapulted to acquittal, the Court observed.

“Societal interest, therefore, mandates that the law laid down in Mohan Lal (supra) cannot be allowed to become a spring board by an accused for being catapulted to acquittal, irrespective of all other considerations pursuant to an investigation and prosecution when the law in that regard was nebulous.”

Criminal jurisprudence mandates balancing the rights of the accused and the prosecution, the Court said and proceeded to distinguish the present case from the case of Mohan Lal.

“If the facts in Mohan Lal (supra) were telling with regard to the prosecution, the facts in the present case are equally telling with regard to the accused. There is a history of previous convictions of the appellant also”.

The Court thus held that all pending criminal prosecutions, trials and appeals prior to the law laid down in Mohan Lal (supra) shall continue to be governed by the individual facts of the case.

While in Mohan Lal vs. State of Punjab, the Supreme Court has reiterated is a very important proposition of criminal law “a fair investigation, which is but the very foundation of fair trial, necessary 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 has to be excluded.” This proposition is based on age old maxim “Nemo debet esse judex in causa proporia sua” (no person can be a judge in her own cause) which is a touchstone of the principles of natural justice and a useful tool to maintain fairness in adjudication across legal systems.

But the very fabric of this Judgment is subject to fair amount of disagreement like the Supreme Court in Mukesh Singh Vs State (Narcotics Branch of Delhi) had observed:

“We may prima facie express that we find it difficult to accept the view taken in Mohan Lal (Supra). Some of the decided cases have maintained a distinction in that where the investigation was conducted by the informant himself, appropriate weightage was given while appreciating the evidence. In a given case, where the complainant himself had conducted investigation, such aspect of the matter can certainly be given due weightage while assessing the evidence on record but it would be completely a different thing to say that the trial itself would be vitiated for such infraction. But Mohan Lal (Supra) has ruled that the trial itself would stand vitiated on that count.”

Similarly, a further critique is raised in an article “Impartiality in Investigations – The Three Justices’ Decision in Mohan Lal v. Punjab” and it says that “the absolute rule neither helps the police nor the accused, and might be rarely used by courts. It is impractical for a police which has a limited number of officers on hand to fully implement such a mandate and will therefore try and find loopholes rather than actually conduct fairer investigations. The easiest being a fudging of the initial documentation upon arrest and seizure (which often already happens) to have that separation of officers. This means that the rule confers an empty promise on the accused person and in some ways might only worsen the present scenario as the police resort to illegal means to avoid the rigours of Mohan Lal. Given the absolutely awesome nature of the remedy – the prosecution is vitiated if the informant and investigating officer are the same – courts are bound to be hesitant in frequently throwing out cases on a technicality of this sort and so will possibly treat the accused’ claims of fudged records with more suspect than otherwise warranted.”

In my view, the Supreme Court in Mohan Lal (Supra) has not laid down any new law but has only declared and applied the age old principles of law that “Nemo debet esse judex in causa proporia sua” (no person can be a judge in her own cause) and that “Justice should not only be done but appears to have been done” which is a touchstone of the principles of natural justice and a useful tool to maintain fairness in adjudication across legal systems. It’s relevance is all the more significant as far as criminal law is concerned due to the involvement of personal liberties. There may be practical hindrances in implementation of these principles in day to day dealings or investigations of criminal cases like shortage of Police/Investigation staff, lack of proper education and trainings of the Investigating officers and other such problems but the same cannot be made a ground for lightly ignoring the infringement of our basic principles of law.

The two judge bench of Supreme Court in Mukesh Singh case (Supra) was of the view that where the complainant himself had conducted investigation, such aspect of the matter can certainly be given due weightage while assessing the evidence on record but it would be completely a different thing to say that the trial itself would be vitiated for such infraction. In this matter, the Supreme court had tried to show a way out, in the sense that in the cases where complainant himself has conducted the investigation, instead of throwing out the entire prosecution case, the evidence of Complainant/Informant may be ignored and from the other incriminating evidence on record, if the case of conviction is made out, the same should be accepted. While this is also a plausible view and quite practical also but somehow, in my view, it dilutes the principles of natural justice and fair investigation at its core.

Further, the decision of three judge Bench of the Supreme Court in an Varinder Kumar Vs. State of Himachal Pradesh CRIMINAL APPEAL Nos. 2450¬2451 of 2010 holding the prospective operation of the law laid down in Mohan Lal (supra) is not easy to appreciate specially when their Lordships in Mohan Lal (Supra) have merely drawn attention to and reiterated the well-settled legal position as discussed above .

-AJAY GARG
Advocate