Can the Informant / Complainant also be the Investigating Officer ? Where Does The Law Stand On This

The Author,  Farhad Singh Kohli is a 4th year student of Government Law College, Mumbai.

An accused facing criminal charges is up against the full might of the State - the Police, the State Prosecutor, the media and of course the ever so fastidious public opinion, which is ready to declare one guilty at the first opportunity. All the more reason that the right to a fair trial must neither be threatened nor even appear to be threatened. When a complainant is asked to investigate the alleged offence himself, bias and conflict of interest can not be ruled out.

On May 20, 1999, Surinder Kumar was convicted under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 ( NDPS Act, 1985 ) by the Special Judge, Ferozepur. The Punjab and Haryana High Court dismissed his appeal and confirmed the judgement of the Special Judge.  On appeal before the Supreme Court, in Surinder Kumar vs. State of Punjab[i], the appellant placed reliance upon the decision of the Apex Court in Mohan Lal vs. State of Punjab[ii] ( decided on August 16, 2018 ), wherein the court had held that in cases where the Complainant and the Investigating Officer were the same, trials would be vitiated as this would deny the accused his right to a fair investigation.  On January 6, 2020, a three-Judge bench of the Apex Court comprising of Justices N.V. Ramana, R. Subhash Reddy and B.R. Gavi upheld the conviction of Surinder Kumar in light of its earlier decision in Varinder Kumar vs. State of Himachal Pradesh[iii] ( decided on February 11, 2019 ), where in the Court had stated that the rule laid down in Mohan Lal’s case would apply prospectively only.

Surinder Kumar was denied the benefit of this basic rule of a fair investigation, merely because his appeal against the decision of the High Court was pending as on the date of the decision of the Supreme Court in the Mohan Lal case. The usual hesitation of a Court to apply its decisions retrospectively is understandable, owing to its potential ramifications, however in a matter involving such a crucial right of an accused, it would have behooved the Court to resolve differently.

Decision of the Apex Court In Mohan Lal vs. State of Punjab

The Supreme Court was faced with an important question– In a criminal prosecution, will it be in consonance with the principles of justice and a fair investigation, if the informant and the Investigating Officer were to be the same person ?

The appellant was charged under Section 18 of the NDPS Act 1985 on the basis of a FIR lodged in 1997. The police official who lodged the complaint further took up the investigation of the case. The appellant was found guilty by the Trial Court and convicted.

On appeal before the Apex Court, on August 16, 2018, a three-Judge bench of the Court comprising of Justices Ranjan Gogoi, R. Banumathi and Navin Sinha held that a fair investigation is the sine qua non of a fair trial  and therefore the informant / complainant and the investigator must not be the same person. This rule becomes all the more important, when the accused is charged with laws which carry a reverse burden of proof.

The Court found it necessary to clarify that this decision must not only be understood as confined to the requirements of a fair investigation under the NDPS Act, but also criminal prosecutions in general. The bench reiterated that a fair trial is regarded as a constitutional guarantee under Article 21 of the Constitution of India.

Article 21 of the Constitution reads as follows:

“ No person shall be deprived of his life or personal liberty except according to procedure established by law.”

Therefore, a fair trial is considered an essential part of the procedure established by law. The court held that the investigator must act in an unprejudiced manner and  it would be unreasonable and  contrary to basic human conduct, to assume that an Investigating Officer would willingly submit a closure report under section 169 Cr.P.C., exonerating the accused on the basis of false implication, being well aware of what consequences may follow for the Investigating Officer. Taking cognisance of conflicting judgements of the Supreme Court in Bhaskar Ramappa Madar & Ors. vs. State of Karnataka[iv] and in Megha Singh vs. State of Haryana[v], the Supreme Court found it necessary to lay down the law in this regard with utmost certainty and categorically expressed its dissatisfaction towards leaving the matter to be determined by the individual facts of a case.

Caveat To The Rule Laid Down In Mohan Lal’s Case:

About six months after the judgement of the court in Mohan Lal’s case, a similar matter came up before the Supreme Court in Varinder Kumar vs. State of Himachal Pradesh decided on February 11, 2019.

An appeal lay before the Himachal Pradesh High Court against a judgment dated February 26, 1996 passed by the Sessions Judge, Una whereby the accused had been acquitted. The High Court disagreed with the Trial Court and convicted the accused under Section 20 of the NDPS Act 1985. On appeal before the Supreme Court, one of the contentions of the appellant was that the informant had further taken up the investigation of the case and therefore the conviction stood vitiated, as this would amount to an infringement upon his right to a fair trial.

A three-Judge bench comprising of CJI Ranjan Gogoi and Justices Navin Sinha and K.M. Joseph held that the need to punish offenders is at par with that of preserving the basic rights of an accused. It felt that the opportunity provided to an accused in the Mohan Lal judgement, shall not be used as a “ spring board by an accused for being catapulted to acquittal ” and this was in the greater interest of society at large.

The court while dismissing the appeal, held that all pending criminal prosecutions, trials and appeals prior to the law laid down in Mohan Lal’s case shall continue to be governed by the individual facts of the case and that the Mohan Lal judgement would only apply prospectively.

However, the Apex Court seems to have departed from its earlier decision in the Mohan Lal case, in which, while remaining silent about the applicability of the judgement, whether it would apply prospectively or retrospectively,  the Court had categorically expressed its displeasure at matters being decided on the individual facts of a case where such a flagrant violation of the basic principles of a fair investigation had taken place and stated,

“ To leave the matter for being determined on the individual facts of a case, 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 Perils of The Informant / Complainant Investigating The Complaint:

The importance of a fair trial can hardly be over-emphasized. A fair trial free from any form of bias is one of the fundamental cannons of Indian criminal jurisprudence and is encompassed within the mandate contained in Articles 20 and 21 of the Constitution of India.

If a police official who registers a complainant is subsequently asked to investigate the matter, it would not be inappropriate to consider the possibility of a biased investigation, thereby risking the very foundation of a fair trial, which in turn would serve as an affront to the public conscience. Such a complainant / informant who is put in charge of investigating a matter could go to any extent to vindicate his complaint.

Bias or conflict of interest in criminal investigation is a malady which strikes at the very basis of a decision which is supposed to be fair and impartial. Very often, an investigator falls prey to a menacing state of mind known as “ Confirmation Bias ”. Confirmation bias occurs when a person believes in or searches for evidence to support his championed theory while shutting his eye to evidence which is not in consonance with what he believes. Further, one becomes reluctant to change his beliefs once he arrives at a conclusion.

At times, an Investigating Officer may regard a mere statement of the accused as a confession, on account of preconceived notions, when in actual fact, it may not even be one. At other times, an Investigating Officer may only chose eye-witnesses whose version concurs with that of his.

Emotional forces, especially anger may be the driving force at times. For instance, when an officer discovers that the suspect has previously been accused of grave offences such as those relating to homicide, narcotics, sexual offences, etc. his emotions may get the better of him, and he may be unable to maintain an objective and rational approach. At the end of the day, an Investigating Officer is only human and it would be anything but judicious to turn a blind eye to basic human instincts, while evaluating his actions.

An Investing Officer is vested with a great degree of power and often investigations can go wrong for other reasons, and some would argue more compelling reasons, including police officials being personally motivated and trying to secure promotions for themselves, personal rivalries with the accused, revenge, bribery etc. It is also conceivable that, at times, an Investigating Officer may himself be a direct or indirect victim of the crime.

It is possible and may even be appropriate to assume, that an Investigating Officer would act in a completely unprejudiced manner, without any personal motivation whatsoever. However, the mere possibility of such an infirmity in an investigation is what is disconcerting. A fair and just investigation should not only be carried out, but must also manifestly be seen to be carried out. This is absolutely essential to maintain the faith of society in the very apparatus of criminal investigations.

Safeguard In The Criminal Procedure Code 1973

The Criminal Procedure Code 1973 also recognizes the risk of allowing a police officer to wear two hats.  Section 25 (3) of the Cr.P.C. reads as follows,

“ 25. Assistant Public Prosecutors.

(3) Where no Assistant Public Prosecutor is available for the purposes of any particular case, the District Magistrate may appoint any other person to be the Assistant Public Prosecutor in charge of that case; Provided that a police officer shall not be so appointed-

(a) if he has taken any part in the investigation into the offence with respect to which the accused being prosecuted; or

(b) if he is below the rank of Inspector.”

The Apex Court has stressed upon the importance of this provisions in S.B. Shahane And Ors vs State Of Maharashtra And Anr.[vi] and stated,

“ In other words, the Law Commission strongly felt the need of Prosecutors conducting the prosecutions in courts independently of the Police Department that had investigated the cases in respect of which prosecutions were launched or of officers of the Police Department who were very much interested in such investigations so as to conform to the basic salutary rule of prosecution of criminal cases that the prosecutors must conduct the prosecutions fairly and impartially. ”

Even though this section does not particularly refer to a complainant and the Investigating Officer being the same, it does highlight the possibility of a conflict of interest or bias on the part of an Investigating Officer and serves as a useful safeguard.

Stand Taken On The Subject Internationally:

The stand on this subject internationally, complies with that of the Apex Court in the Mohan Lal Judgement.

For instance, in the United Kingdom, the Code of Practice provided for by the Criminal Procedure and Investigations Act 1996, sets out how police officers are to record, retain and reveal to the prosecutor material obtained in a criminal investigation. With regard to a Disclosure Officer, who is responsible for examining material retained by the police during investigations and further revealing such material to the prosecutor, the Code Of Practice states,

“….An individual must not be appointed as disclosure officer, or continue in that role, if that is likely to result in a conflict of interest, for instance, if the disclosure officer is the victim of the alleged crime which is the subject of the investigation…. ”[vii]

The Ontario Police Services Act, 1990, in Canada,  has similar provisions. Paragraph 49(1)(b) of the Act prohibits officers from engaging in any activity "that places him or her in a conflict of interest."[viii]

Rule Laid Down in Mohan Lal’s Case Applied Retrospectively By High Courts:

The Apex Court may have dismissed the appeal in Varinder Kumar’s case as it felt that it “ lacks merit ” and decided to apply the Mohan Lal judgement prospectively only, but barely had the ink dried on the Mohan Lal judgement  when various High Courts across the country - from the Punjab and Haryana High Court and the Delhi High Court in the north, to the Madras High Court in the south and from the Calcutta High Court in the east to the Rajasthan High Court in the west, upheld the Mohan Lal judgement and acquitted those in appeals pending since long before the decision of the Apex Court in the Mohan Lal case.

In Sushil Kumar Saraf vs. The State Of West Bengal[ix], decided on August 29, 2018, an appeal lay before the Calcutta High Court against  a judgement of the Special Court dated May 29, 1985 convicting the appellant under the Essential Commodities Act, 1955 and  the West Bengal Wheat and Wheat Products (Licensing, Control and Prohibition of Certain Classes of Commercial Transportation) Order, 1973. While upholding the judgement of the Apex Court, the High Court remarked that where the Investigating Officer was also the de facto complainant, it “ vitiates the very foundation of fair trial. ”, thereby quashing the order of conviction.

In Annabelle Analista Malibago vs. DRI[x], decided on October 25, 2018, an appeal lay before the Delhi High Court against a judgement dated March 19, 2014, passed by the Additional Sessions Judge convicting the appellant under the NDPS Act 1985. While upholding the decision of the Apex Court in the Mohan Lal case, the High court held that it was clear that the rule applies, not only to a situation in which the Investigating Officer is the informant, but also to a situation in which the Investigating Officer is the complainant or the searching officer or even the officer who apprehends the accused for that matter, thereby putting at rest the semantics. The High Court remarked,

“ Given the law now enunciated by the Supreme Court in Mohan Lal (supra), which, in view of the mandate of Article 141 of the Constitution of India, has to be regarded as the law that existed for all times, it is clear that the entire investigation and consequent trial and conviction of the appellant, in the present case, stands vitiated by the sole fact of PW-1 Anju Singh being herself the complainant as well as the IO. ”

It is pertinent to note that the High Court has categorically stated that the rule laid down in the Mohan Lal case “has to be regarded as the law that existed for all times”. A month later in Leysliener Zandile Luthuli vs. Directorate Of Revenue[xi], the Delhi High Court once again acquitted the accused, by applying the rule laid down in the Mohan Lal case retrospectively.

In Jeyapalnarayanan vs. The Sub Inspector Of Police[xii] decided on November 1, 2018, the Madras High Court quashed a charge sheet for offences punishable under the Tamil Nadu Prohibition Act and stated,

“ It can be seen from records that the First Information Report was registered by the second respondent and he has conducted the investigation and he has also filed the final report. Therefore the very investigation in this case is vitiated. This case is squarely covered by the judgment of the Honourable Supreme Court in Mohan Lal- vs- The State of Punjab in Criminal Appeal No.1880 of 2011, wherein the Honourable Supreme Court has categorically held that the foundation of the fair trial postulates that the informant and the investigator must not be the same person. ”

In Rajinder Singh vs. State Of Punjab[xiii] decided on December 4, 2018, a two – Judge bench of the Punjab & Haryana High Court disposed of three criminal appeals while upholding the judgement of the Apex Court in the Mohan Lal case. The appellants were convicted under provisions of the NDPS Act on September 11, 2012 by the Special Judge and challenged their conviction before the High Court. The court set aside the conviction on the ground that the informants / complainants were also the Investigating Officers and held that the orders of sentence “ are not sustainable in the eyes of law and are set aside. ” A few days later, in Gurnam vs. State Of Punjab[xiv], a two – Judge bench, once again disposed of two criminal appeals on similar lines, while applying the judgement of the Apex Court retrospectively.

In Rahul Yadav vs. State Of Rajasthan[xv], decided on January 7, 2019 the petitioner had sought the quashing of a criminal case against him initiated in the Prevention Of Corruption Court in Jaipur, on similar grounds. The Rajasthan High Court, while quashing the proceedings pending before the Trial Court, remarked that if the matter was left to the Trial Court for deciding the case on merits it would “ tantamount to abuse of process of Courts and would be an attempt to negate the judgment of the Apex Court. ”

Law Still Inconclusive:

Unfortunately, the law with regard to this cardinal principle of criminal investigations, still remains undecided. Following the Mohan Lal case, once again the Apex Court was faced with a similar question of law in Mukesh Singh vs State (Narcotic Branch Of Delhi)[xvi]. A two-Judge bench comprising of Justices Uday Umesh Lalit and M.R. Shah expressed that they did not entirely agree with the view taken by the Court in the Mohan Lal case. They held that cases in which the complainant and investigator were one, due weightage must be given to that fact while considering evidence on record, however such a fact should not vitiate the entire trial itself, thereby referring the matter to a larger bench. Consequently, a Constitution Bench comprising of Justices Arun Mishra, Indira Banerjee, Vineet Saran, M.R. Shah and S. Ravindra Bhat was constituted to consider whether a trial in a NDPS case will be vitiated if the investigation is carried out by the complainant. Arguments were concluded on November 5, 2019 and the Supreme Court has reserved its judgement on the matter[xvii].

From laying down the rule in this regard in the Mohan Lal case, then subsequently holding that it would only apply prospectively, in the Varinder Kumar case and then questioning the very validity of the rule itself in the Mukesh Singh case, the question of where the law stands on this issue is definitely wanting in lucidity. It is hoped that the Hon'ble Judges deliver a judgement upholding this vital safeguard of a fair trial, at the soonest and without any caveats regarding its prospective applicability, lest it may prove to be the Achilles' heel of India’s otherwise rich criminal jurisprudence.

As Robert Ingersoll, the great American lawyer and writer once remarked, “ Prejudice is the spider of the mind. It is the womb of injustice. When an apparent bias transforms itself into a womb of injustice then, it has to be struck down by the Courts. ”

Picture Source :