17 Jun 2022 6:45 AM GMT
The Jammu and Kashmir and Ladakh High Court recently ruled that any documentary or oral evidence produced before the Investigating Officer (IO) during the course of investigation by any person including the accused- which is relevant, necessary or desirable for the purposes of investigation, cannot be thrown out by the IO by seeking shelter under Section 91 of the Code of Criminal...
The Jammu and Kashmir and Ladakh High Court recently ruled that any documentary or oral evidence produced before the Investigating Officer (IO) during the course of investigation by any person including the accused- which is relevant, necessary or desirable for the purposes of investigation, cannot be thrown out by the IO by seeking shelter under Section 91 of the Code of Criminal Procedure (CrPC).
A single bench of Justice Sanjeev Kumar made the observation in a plea wherein the petitioner (accused) was alleged to be involved in extorting high profile businessmen of the country by instituting fake complaints against them in different courts of UT of J&K. In his plea, the petitioner questioned the refusal of IO to receive and consider the documentary evidence in his possession, an act which in turn had deprived the petitioner of his right to prove his innocence before the Investigating Officer.
Upholding the contention of the petitioner that the fair and impartial investigation is sine qua non of a fair trial and denial of this right directly offends Article 21 of the Constitution of India, the court held that fair investigation and fair trial is not only necessary for the accused but it is equally necessary for the victim and the society which has stakes in ensuring that the real perpetrator of crime is brought to book. It is, thus, the court said, obligatory on the Investigating Officer to collect the evidence, oral as well as documentary, from all possible sources and such sources may include an accused. The court observed,
"It is, thus, the requirement of both Article 14 and 21 of the Constitution of India that the investigation conducted by the police in the crimes is fair, impartial and unbiased leading to the conduct of a fair trial against the offender of the law".
The bench emphasised on the role of the Investigating Officer as a kingpin in the criminal justice system and underscored for a fair, impartial and reliable investigation by him as the most important step towards affirming complete justice to the victim/victims of the crime as also to assure fair trial rights of the accused. It is with this object in view the Investigating Officer is bestowed with enormous powers and equally onerous duties to dispassionately investigate the matter and reach the truth by collecting reliable evidences for and against the allegations, the court observed.
While dealing with Section 91 CrPC, the court observed that Section 91 of the Code when interpreted it in the light of Article 20 of the Constitution of India makes it clear that the Officer In-charge of Police Station will be well within its rights to direct a person including an accused to attend and produce any document or other thing as he considers necessary or desirable for the purposes of any investigation subject only to the condition that such document or thing should not be incriminating to the accused.
The bench further observed that there is nothing in Section 91, which prohibits or puts any embargo or clog on the powers of the In-charge of a Police Station to summon the accused to attend and produce a document or thing which is not incriminatory to the accused, but may be necessary or desirable for the purposes of investigation of the offence.
The court held that the accused may not as of right claim the production of any document or thing in defence before the Investigating Officer, but if he brings to the notice of the Investigating Officer any documentary evidence or material other than the incriminating document or material, the Investigating Officer cannot and should not shut his eyes to such document or material if the same is relevant, necessary or desirable for the purposes of investigation.
"Investigation into the allegations constituting an offence would call for collecting evidence both for and against the allegations," the court said.
The court recorded that CrPC does not envisage one sided investigation aimed at collecting material only to substantiate the allegations and ignoring the documents and other things which expose the lies and falsehood of the allegations.
For the investigation to be fair, impartial and unbiased, Justice Kumar said, it is necessary for the Investigating Agency to collect all relevant evidence with regard to the facts and circumstances of the case.
"He may not take such documents or material into consideration if he finds the same having no relevance or nexus with the investigation in any manner. He may even reject to consider the same on the ground that these documents or material are, otherwise, not germane to investigation," the court underscored.
Allowing the plea, the court directed the IO to accept the documents sought to be produced by the petitioner and consider the same only to the extent these are relevant, necessary or desirable for the just and fair investigation of the case.
"It is, however, left to the discretion and investigative wisdom of the Investigating Officer to rely upon or not to rely upon the documents so produced by the petitioner," the bench concluded.
Case Title : Ajay Kumar Agarwal v Union Territory of JK and Ors.
Citation: 2022 LiveLaw (JKL) 47
Click Here To Read/Download Judgment