NON-EXAMINATION OF INVESTIGATION OFFICER
The appellant has not been able to shake the credibility of the eye-witness. No material contradiction in the case of the prosecution has been shown. Under facts and circumstances, non-examination of Investigating Officer is of no consequence. Accused failed to show prejudice by such non-examination [Dinesh Yadav Vs State of Jharkhand 09.03.2017]
“The evidence brought on record by the prosecution is not sufficient to convict the accused, when the substantive evidence is not reliable. PW-1 is not a reliable witness. Ex. P7 shows that he has worked in the college on 31.8.1994 and 1.9.1994. If, that be so, the prosecution case with regard to the complaint being lodged on 31.8.1994 and the trap conducted on 1.9.1994 is suspect. The non-examination of Investigation Officer in the circumstances of the case is fatal to the prosecution”.
The Problem :
In the case of S.K. Rashid @ Abdul Rashid and Another Vs. State of Bihar, a Division Bench of Patna High Court has taken notice of recalcitrance and recessive tendency of the police personnel and observed that they are taking process of the courts most lazily and casually. Commenting upon the existing state of affairs, Patna High court has said that non-examination of investigation officer is not necessarily fatal to the prosecution. A court has to see whether the evidence of the investigating officer is essential for the case of the prosecution to succeed or not. If it finds that no genuine complaint of denial of fair play or prejudice to the defence can be made in a particular case, it may pronounce its judgment without insisting for the examination of the investigating officer In a case however, in which there are genuine reasons to think that the defence can legitimately complain of denial of opportunity but demonstrate that the prosecution has not correctly stated its case or it has otherwise been prejudiced it must insist for the examination of the Investigating Officer. Non-examination of the investigating officer in that situation may profit the defence that benefit of doubt as to the veracity of the prosecution case. The Court has expressed alarm, however, about ever-increasing default on the part of the prosecution in examining the official witnesses more often the investigating officer and has said :
What has alarmed us, however, is the recessive tendency of the police personnel. They are taking the processes of the Court lazily and casually as they can. as they have no priorities for the proceedings in the courts one before attending to the other works for which they have their reasons of preference. As in this case in many other cases Courts have to face a predicament which the prosecution alone can solve, seldom however comes with any solution, but to tell the Court that it has no witness to examine and to take summons only to inform the court that has heard nothing from the police about the service thereof. Several adjournments given by the Court at the instance of the prosecutor only for ensuring the attendance of the official witnesses including the investigating officer keep the trials pending for years and even after the inordinate wait, the Courts are compelled to decide the cases without their evidence.
In S. K. Rashid’s case (supra) the Court has taken notice of the amendment in the Code of Criminal Procedure by the State of Uttar Pradesh providing for imposition of punishment upon the defaulting official witnesses both judicially and administratively and has observed :
It is high time that in the State of Bihar also some provisions are made and in case it is found that a certain officer of the State has ignored the summons or warrant of the Court, adequate action is taken against him. The administration of the State, even without any such amendment is fully empowered and competent to take notice of the defaults of its officers in responding to the summons and warrant of the Court and it can immediately start taking notice of the conduct of the investigating officers of the police by suitably punishing them by recording remarks in the shape of black marks in their service books.
The Courts have to depend upon the machinery provided by the State Government for service of notice and summons, particularly for execution of warrant of arrest the police has to act. The law for ensuring the appearance of witnesses provides for courts issuing processes including warrants of arrest. When they issue warrant, compliance thereof has to be reported by the police. Lamentations and even reprimands have failed to awaken the police administration of the State. Until now the administration of the State has not shown any awareness much less concern to ever detonating investigation and ever-increasing default of its officers in providing the necessary evidence to the Court.
Effect of non-examination
In Jitendra and another v. State of M.P. (2003)94 Cr.L.R. (SC) (Suppl.) 699, their Lordships of the Apex Court held that no explanation was given by the prosecution for non production of seized contraband and non examination of Investigation Officer and in those circumstances the benefit of doubt was given to the accused-appellants.
When not Fatal
It is a well-settled principle of law that even non-examination of investigation officer will not give any benefit to the accused when the case of the prosecution has been proved on the strength of clinching pieces of evidence. Non-examination of the investigation officer cannot be a ground for holding that the injured witnesses should not be believed. Hon’ble Apex Court has specifically stated that in case of the defective investigation it would not be proper to acquit the accused if the case is otherwise established conclusively. A criminal trial is meant for doing justice to the accused, the victim and the society so that law and order is maintained. A judge does not preside over a criminal trial merely to see that no innocent man is punished. A judge also presides to see that a guilty man does not escape. One is as important as the other. Both are public duties which the judge has to perform. , 2002 (2) SCC 646 Ambika Prasad and another v. State (Delhi Administration).
In the self-same decision Hon’ble Apex Court has further been pleased to observe that non-examination of the independent witness cannot be ground for rejecting evidence of witnesses who were injured in that occurrence.