Judges: Arun Mishra, Indira Banerjee, Vineet Saran, M.R. Shah and S. Ravindra Bhat, JJ.

Facts:

The present 5 Judge Bench has been convened to determine the validity of the view taken by this court in the case of Mohan Lal v. State of Punjab, MANU/SC/0857/2018 wherein the court observed that if in the case, the investigation is conducted by the police officer who himself is the complainant, the trial is vitiated and the Accused is entitled to acquittal.

The decision of Mohan Lal, however, came up for consideration before this Court in the case of Varinder Kumar v. State of Himachal Pradesh MANU/SC/0173/2019 wherein the court held that the decision of the case of Mohan Lal shall be applicable prospectively, meaning thereby, 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.

Issues:

(i) Whether in the case where the investigation is conducted by the informant/police officer who himself is the complainant, the trial is vitiated and in such a situation, the Accused is entitled to acquittal?

Law:

Code of Criminal Procedure - Section 154 - 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.

Code of Criminal Procedure - Section 156 - 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.

Code of Criminal Procedure - Section 157 - 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.

Contentions:

Appellant

(i) Right from Bhagwan Singh v. State of Rajasthan MANU/SC/0094/1975 till the recent judgment in the case of Varinder Kumar, this Court is of the firm view that the complainant/informant and the investigator must not be the same person. The same is in consonance with the age-old principles of law that "Nemo debet esse judex in causa proporiasua" (no person can be a judge in his own cause) and that "justice should not only be done but appears to have been done"

(ii) Considering the scheme of the NDPS Act, more particularly Sections 41, 42, 43, 52(3) and 53 of the Act require that the officer empowered to raid, seize and arrest who may be the complainant shall be different from the investigator of the case;

(iii) If the complainant/informer and the Investigator are same persons, it will violate the principle of Rule against Bias which is a part of Principles of Natural Justice and included in Fundamental Right.

(iv) In case like NDPS where there is reverse burden of proof in Sections 35, 54, 66 and 68 of NDPS Act, the burden shall be on the prosecution to prove that no prejudice is caused to the Accused in the investigation conducted by the complainant/Informer. In such case, the complainant will always be interested in filing charge sheet against the Accused. He will have personal bias against the Accused and there will be no objectivity in the Investigation.

(v) It is a serious infraction to the guaranteed constitutional rights of Accused and declared it to be the grave infirmity which reflects on the credibility of the prosecution case.

(vi) The Accused will be deprived of his valuable rights of cross examining the complainant/informer and the Investigation officer separately if both are same.

(vii) The Accused will also be deprived of his valuable right of contradicting the previous information recorded and previous statements of the witnesses.

(viii) The meaningful reading of the scheme of NDPS Act also indicate that the Informer/complainant/raiding officer cannot Investigate the said case.

(ix) There is no compulsion for the Police/any other agency to get the Investigation conducted by the complainant/informer and on the other hand it can be an easy tool of false implication.

Respondent

(i) This 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; disregarded the principle 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 Code of Criminal Procedure; 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 the same is of secondary importance if the trial otherwise discloses impeccable evidence; misconstrued both the scheme of the NDPS Act and 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.

(ii) Investigation of an offence is a field exclusively reserved for the police whose powers remain unfettered as long as they remain complaint with the provisions of the Code of Criminal Procedure. It is only in extraordinary circumstances of abuse of authority that the Court may interfere.

(iii) Abuse of power cannot be presumed. Fairness of investigation would always be a question of fact. In the absence of an express prohibition in the code barring investigation by a complainant himself, the statutory incorporation of the Rule that credit should be given to public officers who have acted in the limits of their authority. The law is that invalidity of investigation has no relation to the competence of the Court. And the object of the Code that matters of failure of justice should be left to the discretion and vigilance of the Courts; hence, the formulation of a general Rule is wrong.

Analysis:

(i) As per Section 53 of the NDPS Act, other persons authorised by the Central Government or the State Government can be the officer in charge of a police station for the investigation of the offences. Section 53 of the NDPS Act 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. Thus, 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.

(ii) Investigation includes search and seizure. As the investigation is to be carried out by the officer in charge of a police station and none other and therefore purposely, Section 53 of NDPS Act authorises the Central Government or the State Government, as the case may be, invest any officer of the department of drugs control, revenue or excise or any other department or any class of such officers with the powers of an officer in charge of a police station for the investigation of offences under the NDPS Act.

(iii) Section 42 of NDPS Act confers power of entry, search, seizure and arrest without warrant or authorisation to any such officer as mentioned in Section 42 including any such officer of the revenue, drugs control, excise, police or any other department of a State Government or the Central Government, as the case may be, and as observed hereinabove, Section 53 of NDPS Act authorises the Central Government to invest any officer of the department of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government or any class of such officers with the powers of an officer in charge of a police station for the investigation. Similar powers are with the State Government.

(iv) The only change in Sections 42 and 53 of NDPS Act was that in Section 42 of NDPS Act the word police was there, however in Section 53 of NDPS Act the word police was not there. There was an obvious reason as for police such requirement was not warranted as he always could be the officer in charge of a police station as per the definition of an officer in charge of a police station as defined under the Code of Criminal Procedure.

(v) The NDPS Act did 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.

(vi) There was 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 could not be discarded and the Accused was not to be straightway acquitted unless and until the Accused was able to establish and prove the bias and the prejudice.

(vii) As held by this Court in the case of Ram Chandra (supra) the question of prejudice or bias has to be established and not inferred. The question of bias would have to be decided on the facts of each case. NDPS Act was a Special Act with the special purpose and with special provisions including Section 68 of NDPS Act 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, considering the NDPS Act being a special Act with special procedure to be followed under Chapter V, there was no specific bar against conducting the investigation by the informant himself. In view of the safeguard provided under the Act itself, namely, Section 58 of NDPS Act, this court was of the opinion that there could not be any general proposition of law to be laid down that in every case where the informant was the investigator, the trial is vitiated and the Accused was entitled to acquittal.

(viii) Even with respect to offences under the Indian Penal Code, there was no specific bar against the informant/complainant investigating the case. Only in a case where the Accused had been able to establish and prove the bias and/or unfair investigation by the informant-cum-investigator and the case of the prosecution was merely based upon the deposition of the informant-cum-investigator, meaning thereby prosecution did 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.

(ix) Therefore, as rightly observed by this Court in the case of Bhaskar Ramappa Madar, the matter had to be decided on a case to case basis without any universal generalisation. As rightly held by this Court in the case of V. Jayapaul, there was no bar against the informant police officer to investigate the case. As rightly observed, if at all, such investigation could only be assailed on the ground of bias or real likelihood of bias on the part of the investigating officer the question of bias would depend on the facts and circumstances of each case and therefore it was not proper to lay down a broad and unqualified proposition that in every case where the police officer who registered the case by lodging the first information, conducts the investigation that itself had caused prejudice to the Accused and thereby it vitiates the entire prosecution case and the Accused was entitled to acquittal.

Conclusion:

(i) The observations of this Court in the cases of Bhagwan Singh v. State of Rajasthan MANU/SC/0094/1975, Megha Singh v. State of Haryana MANU/SC/0466/1995 and State by Inspector of Police, NIB, Tamil Nadu v. Rajangam, MANU/SC/1085/2009 and the acquittal of the Accused by this Court on the ground that as the informant and the investigator was the same, it has vitiated the trial and the Accused is entitled to acquittal are to be treated to be confined to their own facts. It cannot be said that in the aforesaid decisions, this Court laid down any general proposition of law that in each and every case where the informant is the investigator there is a bias caused to the Accused and the entire prosecution case is to be disbelieved and the Accused is entitled to acquittal.

(ii) In a case where the informant himself is the investigator, by that itself cannot be said that the investigation is vitiated on the ground of bias or the like factor. The question of bias or prejudice would depend upon the facts and circumstances of each case. Therefore, the Accused is not entitled to acquittal on the sole ground that informant is the investigator. 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 MANU/SC/0857/2018 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.

Important Precedents:

(i) Mohan Lal v. State of Punjab MANU/SC/0857/2018

(ii) Bhagwan Singh v. State of Rajasthan MANU/SC/0094/1975

(iii) Megha Singh v. State of Haryana MANU/SC/0466/1995

State by Inspector of Police, NIB, Tamil Nadu v. Rajangam, MANU/SC/1085/2009