On 16th August 2018, a three judge bench of the Supreme Court, in Mohanlal vs. State of Punjab, held that in 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. After about two years, On 31st August 2020, a five judge Constitution Bench specifically overruled it. The matter was referred to Constitution Bench after a two judge bench of Justices UU Lalit and MR Shah in Mukesh Singh v State expressed its doubts on correctness of Mohanlal and opined that there cannot be blanket rule that trial will be vitiated in all such cases where informant and the investigating officer are the same. The Constitution Bench judgment is unanimous and authored by Justice MR Shah. This piece explains the reason stated in the Constitution Bench judgment for overruling Mohanlal.
No Bar Even Under CrPC
One of the reasons for overruling is that the Constitution Bench found that the bench which decided Mohanlal did not consider in detail the relevant provisions of the Cr.P.C. under which the investigation can be undertaken by the investigating officer, more particularly Sections 154, 156 and 157 and the other provisions, namely, Section 465 Cr.P.C. and Section 114 of the Indian Evidence Act. The court noted that, under the scheme of CrPC., there is no bar to a police officer receiving information for commission of a cognizable offence, recording the same and then investigating it.
NDPS Act does not specifically bar the informant/complainant to be an investigator
The Constitution Bench also observed that the bench which decided Mohanlal did not consider in detail and/or misconstrued both the scheme of the NDPS Act and the principle of reverse burden. As per the Constitution bench, the NDPS Act does 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. Thus to hold otherwise like Mohanlal judgment did, according to Constitution Bench, would tantamount to amending Section 53 and the relevant provisions of the NDPS Act and/or adding something which is not there, which is not permissible.
Whether Investigation Was Fair Or Not To Be Decided At The Time Of Trial
The bench in Mohanlal had found favour with the argument that if the informant who himself has seized the offending material from the accused and he himself thereafter investigates the case, there shall be all possibilities of apprehension in the mind of he accused that there shall not be fair investigation and that the concerned officer shall try to prove his own version/seizure and therefore there shall be denial of the "fair investigation" enshrined under Article 21 of the Constitution of India. On this aspect, the Constitution bench observed that whether the investigation conducted by the concerned informant was fair investigation or not is always to be decided at the time of trial. "The concerned informant/investigator will be cited as a witness and he is always subject to cross-examination. There may be cases in which even the case of the prosecution is not solely based upon the deposition of the informant/informant-cum-investigator but there may be some independent witnesses and/or even the other police witnesses. As held by this Court in catena of decisions, the testimony of police personnel will be treated in the same manner as testimony of any other witness and there is no principle of law that without corroboration by independent witnesses his testimony cannot be relied upon. [See Karamjit Singh v. State (Delhi Administration) (2003) 5 SCC 291]. As observed and held by this Court in the case of Devender Pal Singh v. State (NCT of Delhi) (2002) 5 SCC 234, the presumption that a person acts honestly applies as much in favour of a police officer as of other persons, and it is not judicial approach to distrust and suspect him without good grounds therefor.", it said.
Section 114 Presumption
The Constitution Bench also noted illustration (e) to Section 114 of the Indian Evidence Act, which provides that, 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 that 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 bench said.
Section 58 Offence To Be Investigated By Other Officers
The Court also, noted that in cases where any person empowered under Sections 42, 43 or 44 of the NDPS Act acts vexatiously or maliciously, the statute itself has provided the punishment as per section 58 and it is an offence under section 58 which is a cognizable offence and such an offence is required to be investigated by the "officer in charge of a police station" other than the officer who exercised the power of entry, search, seizure or arrest under Sections 42, 43, or 44 as naturally in such a case he would be a proposed accused and therefore he cannot be permitted to investigate and to be a judge in his own cause.
Reverse Burden Of Proof
The Court 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. It said that in the cases of reverse burden of proof, the presumption can operate only after the initial burden which exists on the prosecution is satisfied.
Therefore, while overruling Mohanlal, the Constitution Bench specifically observed:
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, 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.
It also observed that the observations of this Court in the cases of Bhagwan Singh v. State of Rajasthan (1976) 1 SCC 15; Megha Singh v. State of Haryana (1996) 11 SCC 709; and State by Inspector of Police, NIB, Tamil Nadu v. Rajangam (2010) 15 SCC 369 and the acquittal of the accused 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, the bench observed.