In the judgement of Mukesh Singh v. State (Narcotic Branch of Delhi), the five-judge bench of the Supreme Court on Monday clarified the legal point on the status of an accused under the NDPS Act in the situation where the complainant is the same police officer who has been tasked to investigate the case. The matter was taken up by the Constitutional Bench after being referred to it by a three-judge bench in the preceding year.
The brief history of the case goes back to January, 2019 when this issue was placed in front of the Division Bench consisting of Justice U.U. Lalit and Justice M.R. Shah as the counsel for the accused placed reliance on the case of ‘Mohal Lal v. State of Punjab’, that was decided in 2018 wherein it was concluded by the Apex Court that if the complainant is the investigating officer in the matter himself, then the trial is vitiated and the accused is entitled to acquittal. The Division Bench failed to make sense of the decision in the said case and considered it appropriate to refer the case to a larger bench consisting of three judges.
After the matter came up for adjudication in front of the three-judge bench, the same was referred to an even larger bench of five judges which finally put the conflict to bed by giving a final verdict on the same.
Interestingly, in the case of Varinder Kumar v. State of Himachal Pradesh in 2019, the three-judge bench, which included two judges who were part of the bench that gave the verdict in the Mohan Lal case decided that all pending criminal prosecutions, trials and appeals prior to the law laid down in Mohan Lal shall continue to be governed by individual facts of the case. Hence, the adjudication in the matter of Mukesh Singh v. State(Narcotic Branch of Delhi), was left for the constitutional bench to decide for once and for all and to give finality with respect to this question of law.
Observations of the Constitutional Bench:
To have a fair conclusion regarding the apparently conflicting judicial decisions on this issue, Supreme Court examined, analysed and compared some case laws deciding varying legal standpoints, i.e. the cases where the trial was vitiated and the ones where it was not. To substantiate the same, relevant provisions of CrPC were mentioned which are as follows:
- Section 154 Cr.P.C. provides that every information relating to the commission of a cognizable offence, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction.
- Section 156 Cr.P.C. provides that any officer in charge of a police station may investigate any cognizable offence without the order of a Magistrate. It further provides that no proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate. Therefore, as such, a duty is cast on an officer in charge of a police station to reduce the information in writing relating to commission of a cognizable offence and thereafter to investigate the same.
- Section 157 Cr.P.C. specifically provides that if, from information received or otherwise, an officer in charge of a police station has reason to suspect the commission of an offence which he is empowered under Section 156 to investigate, he shall forthwith send a report of the same to a Magistrate empowered to take cognizance of such offence upon a police report and shall proceed in person to the spot to investigate the facts and circumstances of the case and, if necessary, to take measures for the discovery and arrest of the offender.
Reading these provisions with 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. Credit has to be given to public officers in the absence of any proof to the contrary of their not acting with honesty or within limits of their authority. Therefore, merely because the complainant conducted the investigation, it 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.
The Court added,
“Now so far as the observations made by this Court in para 13 in Mohan Lal (supra) that in the nature of 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 circumstance that may raise doubt about its veracity, it is to be 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.”
NDPS Act is a Special Act with the special purpose and with special provisions including Section 68 which provides that no officer acting in exercise of powers vested in him under any provision of the NDPS Act or any rule or order made thereunder shall be compelled to say from where he got any information as to the commission of any offence. Therefore, 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, the court concluded 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.
Similarly, even with respect to offences under the IPC, as observed hereinabove, there is no specific bar against the informant/complainant investigating the case. Only in a case where the accused has been able to establish and prove the bias and/or unfair investigation by the informant-cum-investigator and the case of the prosecution is merely based upon the deposition of the informant-cum-investigator, meaning thereby prosecution does not rely upon other witnesses, more particularly the independent witnesses, in that case, where the complainant himself had conducted the investigation, such aspect of the matter can certainly be given due weightage while assessing the evidence on record.
Final Ruling:
The Court listed out numerous cases where the trial was vitiated for the reason that the informant and the investigating officer was the same person. It was clarified that the decisions in these cases have to be treated confined to their own facts and cannot be based solely on the fact that the investigation officer himself is the informant against the accused.
By no means does the court imply that in every case where the person holding both the aforesaid positions is same, it causes bias or prejudice. This should not be held as a general proposition of law in any case.
While concluding the judgement, 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.”
The Supreme Court answered the reference with the aforesaid observations and ordered the petitions to be placed in front of appropriate courts in accordance with law and on merits, in light of the observations made in this case.
Bench: Justice Arun Mishra, Justice Indira Banerjee, Justice Vineet Saran, Justice M.R. Shah, Justice S. Ravindra Bhat
Case Title: Mukesh Singh v. State(Narcotics Branch of Delhi)
Case Details: Special Leave Petition(Crl.) Diary No. 39528/2018
Read the Judgement:
