Criminal

Co-relation between fair investigation and fair trial

CODE OF CRIMINAL PROCEDURE

186. Having pointed out the role, which a Public Prosecutor is required to play, particularly, in a sessions trial, it may also be, at the cost of repetition, emphasized that a defective, biased or mala fide investigation or a tainted investigation cannot give rise to a valid charge sheet, because such on investigation would, ultimately, prove to be precursor of miscarriage of criminal justice. Not only, therefore, ‘fair trial’, but ‘fair investigation’ too form part of the Constitutional rights guaranteed under articles 20 and 21 of the constitution of india. The investigation, therefore, must be fair, transparent and judicious. In fact, fairness in investigation and consequently, ‘fairness in trial’ form the basic minimum requirement of the ‘rule of law’.

When non-interference by the court with on “*** *** ***

31. Unless an extra ordinary case of gross abuse of power is made out by those in-charge of the investigation, the court should be quite loathe to interfere with the investigation, a field of activity reserved for the police and the executive……..” (emphasis is added)

187. At any rate, there is no difficulty in the State seeking permission for ‘further investigation’, because section 173(8) permits the State to conduct ‘further investigation’. As expected, the Supreme Court, as a visionary, had observed, in the case of Ramlal Narang (supra), that ordinarily, it is desirable that the police should take formal permission from the court for ‘further investigation’. The word ‘ordinarily’ would, therefore, imply, as already discussed above, that in all cases and in every situation, the police need not take formal permission from the court before conducting ‘further investigation’. It is not difficult to visualize situations, where, on information received by the police, the police may justifiably form the opinion that ‘further investigation’ is warranted. In such a case, there may be a situation, where the police may be required to conduct ‘further investigation’ without the accused person(s) being informed of such ‘further investigation’. After the trial starts, the police cannot obtain permission for ‘further investigation’ at the back of the accused person or without informing the accused person. If the accused person is informed that police is seeking permission for ‘further investigation’, the police would be obviously required to disclose, if not to the accused person, at least, to the court as to what has surfaced, which warrants ‘further investigation’. Disclosure of the fact, which may have given rise to the requirement of ‘further investigation,’ may not be disclosed by the police, because, in a given case, such a disclosure may cause prejudice to ‘further investigation’ if the accused becomes aware of an aspect of the investigation would, ultimately, result in failure of justice, the court must interfere. A reference, in this regard, may be made to the case of Babu Bhai (supra) wherein the Supreme Court observed, thus:

“34…………….. If the investigation has not been conducted fairly, we are of the view that such vitiated investigation cannot give rise to a valid charge sheet. Such investigation would ultimately prove to be precursor of miscarriage of criminal justice. In such a case the court would simply try to decipher the truth only on the basis of guess or conjunctures as the whole truth would not come before it. It will be difficult for the court to determine how the incident took place wherein three persons died and so many persons including the complainant and accused got injured. Not only the fair trial but fair investigation is also part of constitutional rights guaranteed under articles 20 and 21 of the constitution of india. Therefore, investigation must be fair, transparent and judicious as it is the minimum requirement of rule of law. Investigating agency cannot be permitted to conduct an investigation in tainted and biased manner. Where non-interference of the court would ultimately result in failure of justice, the court must interfere.”

(emphasis is added)

188. However, unless an extraordinary case of gross misuse of power by those, who are in-charge of an investigation, is made out, the court should be quite loathe to interfere with the investigation, which is, ordinarily, a field of activity reserved for the police and the executives. Commenting on this aspect of law, the Supreme Court observed, in Babu Bhai (supra), thus:

“21………..The manner in which the investigation has been carried out as well as the manner in which these cases have been conducted before this court, clearly indicate that the investigation is not fair and impartial and as such the investigating agency cannot be permitted to continue case which the police wants to examine by ‘further investigation’. No wonder, therefore, that it has been laid down, in A.S. Peter (supra), that in every case, the police need not take formal permission from the court for conducting ‘further investigation’ and, in the case of Hasanbhai Valibhai Qureshi (supra), the Supreme Court has clearly held that ‘further investigation’ may be conducted by the police de hors any permission from the court.

189. In the light of the position of law, as discussed above, when we turn to the facts of the case at hand, it needs to be noted that there were two petitions filed in the learned trial court, one by the Additional Public Prosecutor, who was conducting the prosecution, and the other, by the son of the deceased couple, who stood in the position of the victim.

190. The learned trial court has rejected the appellant’s application, seeking direction for further investigation on two grounds, namely, that the appellant is a mere witness and no prejudice would, therefore, be caused to him and, secondly, the appellant has no locus standi to ask for further investigation inasmuch as it is only the police, who is competent to seek orders for further investigation.

191. As far as the learned Public Prosecutor’s application is concerned, the same was rejected by the learned trial court on the ground that it is not the Public Prosecutor, but only the police, who have the right to seek direction for further investigation and, secondly, that the two persons, who had not been cited as witnesses in the charge sheet, can be examined under section 311 of the Code.

192. In substance, therefore, there were four grounds, assigned by the learned trial court, for rejecting the two applications aforementioned, whereby directions for further investigation were sought for. These four grounds are: (i) the appellant is a mere witness and no prejudice would be caused to him if his prayer for further investigation is not allowed; (ii) it is only the police, which can seek direction for further investigation and, hence, the appellant has no locus standi; (iii) even a Public Prosecutor cannot seek direction for further investigation inasmuch as the right to seek such a direction vests only in the police and not in any one else including Public Prosecutor and (iv) the power given to a trial court, under section 311 of the code, is sufficient to meet the deficiencies, if any, of the investigation in the present case inasmuch as the two persons, who have not been cited as witnesses, can be examined by the court in exercise of its power under section 311.

193. While dismissing the writ petition, the learned Single Judge added one more ground, namely, that the power, under section 319, Cr.PC, can be also invoked by the court if the evidence on record, which may be adduced by the prosecution, reveals involvement of some other persons too, as assailants, along with the accused-respondent herein.