Impartiality in Investigations - The Three Justices' Decision in Mohan Lal v. Punjab

Yesterday, a Three Justices' Bench of the Supreme Court delivered its decision in Mohan Lal v. State of Punjab [Criminal Appeal 1880 of 2011, decided on August 17, 2018]. The Appellant successfully challenged his conviction and sentence - 10 years in prison + Rs. 1,00,000 fine -  under Section 18 of the Narcotics Drugs and Psychotropic Substances Act, 1985 [NDPS Act]. This post discusses the judgment. Readers who've already read the case can skip consideration of the facts and an overview of the judgment and directly jump to the critique.

The Facts and Arguments

The facts take us back to 1997, when on 03.02.1997 Sub-Inspector Chand Singh of Balianwali Police Station lodged an FIR. In it, he stated that while on patrol together with Darshan Singh (Sarpanch), and Asst. Sub-Inspector Balwant Singh, they saw the Appellant Mohan Lal and seized him. Having doubts, they called a gazetted officer in whose presence Mohan Lal was searched, "leading to recovery of 4 kg of opium in a bag carried by him." A "consent memo" was drawn and signed by the Sarpanch Darshan Singh and S-I Chand Singh, and the seized opium separated into two samples (20 gms and 3.98 kgs). A "rukka" was handed over to AS-I Balwant Singh who then returned to the police station to register the FIR. An investigation was conducted, which ended in a Final Report being filed under Section 173 Cr.P.C., and ultimately led to Mohan Singh's conviction.

Counsel for the Appellant raised a multitude of grounds as per the judgment. He argued that evidence was insufficient; both the Sarpanch and AS-I Balwant Singh were not examined as witnesses. The chain of custody for the seized opium was dubious, as it was never deposited in the official police storage facility (Malkhana). Further, there was an unexplained delay of 9 days in sending the sample for chemical analysis. On top of which counsel relied on decisions in Bhagwan Singh v. Rajasthan [(1976) 1 SCC 15], Megha Singh v. State of Haryana [(1996) 11 SCC 709] and State v. Rajangam [(2010) 15 SCC 369] to argue that "the investigation was fundamentally flawed" as S-I Chand Singh could not have been the investigating officer after being the informant. Counsel for Punjab responded that the evidentiary lapses were inconsequential as those witnesses were relevant for facts already proved sufficiently. Further, she relied upon the NDPS Act casting the burden of innocence on an accused, under Sections 36 and 54, to argue that this had not been discharged. Lastly, she cited State of Punjab v. Baldev Singh [(1999) 6 SCC 172], Bhaskar Ramappa v. Karnataka [(2009) 11 SCC 690], and Surender v. Haryana [(2016) 4 SCC 617] to argue that the police investigation is not flawed or illegal merely because the informant continued as investigating officer.

The Decision in Mohan Lal

Justice Sinha delivered the judgment for the bench. Having heard the arguments, he noted that 

The primary question for our consideration in the present appeal is, whether in a criminal prosecution, it will be in consonance with the principles of justice, fair play and a fair investigation, if the informant and the investigating officer were to be the same person. In such a case, is it necessary for the accused to demonstrate prejudice, especially under laws such as NDPS Act, carrying a reverse burden of proof.

The judgment doesn't jump right to this "primary question" but deals first with other arguments first. Justice Sinha zeroes in on the many gaps in the prosecution case: (i) an illiterate person (Darshan Singh) has signed the consent memo, (ii) the seized narcotics were never sent to the Malkhana (the illegality of which he elaborates on further), (iii) non-examination of key witnesses, and (iv) delay in sending samples for analysis. None of these lapses were explained by the prosecution. For Justice Sinha, all these appear to be the result of that "primary question". He notes that: "had the investigator been different from the complainant, the issues for consideration may have entirely been different."

In Paragraphs 10, 11 and 12, the judgment seems to return to the "primary question", and reminds us how harsh the NDPS Act is with its minimum 10 year prison term and reverse burden of innocence. It notes that a fair trial, "a constitutional guarantee" to an accused, "would be a hollow promise if the investigation in a NDPS case were not to be fair or raises serious questions about its fairness apparent on the face of the investigation." He notes that a fair investigation is imperative, and then gives us a hint on how he will answer the question he framed: 

If the investigation itself is unfair, to require the accused to demonstrate prejudice will be fraught with the danger vesting arbitrary powers in the police which may well lead to false implication also. Investigation in such a case would then become an empty formality and a farce. Such an interpretation therefore naturally has to be avoided. [Paragraph 12]

In the circumstances, if an informant police official in a criminal prosecution, especially when carrying a reverse burden of proof, makes the allegations, is himself asked to investigate, serious doubts will naturally arise with regard to his fairness and impartiality. It is not necessary that bias must actually be proved. It would be illogical to presume and contrary to normal human conduct, that he would himself at the end of the investigation submit a closure report to conclude false implication with all its attendant consequences for the complainant himself. The result of the investigation would therefore be a foregone conclusion. [Paragraph 14] 

After sharing with us excerpts from the decisions cited by counsel, and others given by the Supreme Court and other High Courts, the judgment suggests the prior cases are contradictory. Megha Singh and other cases cited by the Appellant seem to conclude that an investigation carried out by the same officer who was the informant is illegal, while others such as Bhaskar Ramappa hold that this alone is not enough and the Appellant must show bias. This lasting controversy is resolved in Paragraph 25 of Mohan Lal for clarifying the law as the present situation "may not only lead to a possible abuse of powers, but more importantly will leave the police, the accused, the lawyer and the courts in a state of uncertainty and confusion which has to be avoided." The answer is as follows:

It is therefore held that a fair investigation, which is but the very foundation of fair trial, necessary postulates that the informant and the investigator must not be the same person. Justice must not only be done, but must appear to be done also. Any possibility of bias or a predetermined conclusion has to be excluded. This requirement is all the more imperative in laws carrying a reverse burden of proof.

Some Points of Critique

It is with some regret that I have to critique a judgment that confers more rights on accused persons in the Indian criminal process, especially because I will certainly be trying my best to use it to further that cause. But it must be said that for a decision resolving a controversy, Mohan Lal contains nearly no legal reasoning and instead is built almost entirely upon assertions, to create a rule that might well be useless. In no order of importance, I have listed out the points of critique below.

First, was deciding the appeal on a constitutional issue necessary here? It is a standard legal rule that the court avoids broad constitutional arguments if a case can be decided on narrower grounds. Here, the judgment engages with the many fundamental flaws in the prosecution case. Perhaps most notable was the police failure in securing the custody of seized narcotics. In a narcotics case, Mohan Lal did show that the police illegally kept custody of the drugs, that cast doubt on whether the eventual items sent for sampling were in fact what was seized from him. Isn't that enough grounds for acquittal? The judgment seems to think so. Moreover, it also thinks the other lapses are crucial. If so, why decide a constitutional issue?

Second, the Court notes in Paragraph 24 that "a fair investigation and fair trial guaranteed under Article 21" will be negated if the FIR is treated as gospel truth, and again in Paragraph 25 says that "fair investigation from the point of view of an accused (is) a guaranteed right under Article 21". But when and how did a "fair investigation" become part of Article 21? Although there are some earlier decisions of the Court where something to the effect of "fair investigation is implicit in Article 21" is said, I am not aware of any case where this was the central issue. In any event, none of those cases are cited. Thus, a Three Justices' Bench of the Court simply asserts that a fundamental rights exists. This lack of reasoning extends to why the Court thinks that the informant continuing as investigating officer is not a fair investigation. In arriving at this conclusion, the Court contradicts itself. On the one hand, it tells us that by definition the police is not partisan and must ferret out the truth. But on the other, it says that such cases carry a presumption of bias. Why? Is there an inherent distrust of the police? If so, why continue with the fiction of them working towards getting any truth at all?

Third, the Court held that the accused does not have to "demonstrate prejudice" from the informant and investigating officer being the same and that it is unnecessary that "bias be actually proved". But was an accused required to do so earlier? Not at all. In this regard, the Court's failure to fully engage with the decision in V. Jayapaul [(2004) 5 SCC 223] costs. The Court in Mohan Lal conveniently noted that the case dealt with corruption offences to move on, but Jayapaul is perhaps the only decision that really engages with the issue at hand and also explained the law on alleging "bias". It held that the accused must show a "real likelihood of bias", and that the mere fact of the informant and investigating officer being the same was not enough. By no means did this mean showing actual prejudice, as the Court in Mohan Lal seems to have thought.  Rather, it required an accused to show a Court that any reasonable person looking at the investigation might think the officer was biased towards a certain conclusion. At some level, even the Court in Mohan Lal engages in this reasoning where it notes that the many lapses in investigation would not have happened with a different officer. But rather than stick to this fact-specific rule, the Court chose an absolute rule that requires nothing further to be shown. [For more on the Indian position on "bias", see here].   

Fourth, the absolute rule neither helps the police nor the accused, and might be rarely used by courts. It is impractical for a police which has a limited number of officers on hand to fully implement such a mandate and will therefore try and find loopholes rather than actually conduct fairer investigations. The easiest being a fudging of the initial documentation upon arrest and seizure (which often already happens) to have that separation of officers. This means that the rule confers an empty promise on the accused person and in some ways might only worsen the present scenario as the police resort to illegal means to avoid the rigours of Mohan Lal. Given the absolutely awesome nature of the remedy - the prosecution is vitiated if the informant and investigating officer are the same - courts are bound to be hesitant in frequently throwing out cases on a technicality of this sort and so will possibly treat the accused' claims of fudged records with more suspect than otherwise warranted. 

Fifth, in Paragraph 15 of Mohan Lal, the Court notes that "the discussion in the present case may not be understood as confined to the requirements of a fair investigation under the NDPS Act only carrying a reverse burden of proof." But nearly every other aspect of the decision seems driven by the fact that this is an NDPS Act case with a reverse burden of proof:

• Paragraph 5: " ... is it necessary for the accused to demonstrate prejudice, especially under laws such as NDPS Act, carrying a reverse burden of proof"; 
• Paragraph 11: the fair investigation guarantee "would be a hollow promise if the investigation in a NDPS case were not to be fair ..."; 
• Paragraph 14: "in the circumstances if an informant police official in a criminal prosecution, especially when carrying a reverse burden of proof ... serious doubts will naturally arise ...";
• Paragraph 24: "The right of the accused to a fair investigation ... will stand negated ... with arbitrary and uncanalised powers vested with the police in matters relating to the NDPS Act and similar laws carrying a reverse burden of proof.";
• Paragraph 25: (After giving the holding) "This requirement is all the more important in laws carrying a reverse burden of proof."       

Could this lead to further controversy later, with this rule being watered down to only these kinds of cases?

Conclusion

In 2015 [(2015) 3 SCC-J 24, "Investigations and Impartiality: Only Confusion Here Supreme"], I had argued that a higher bench of the Supreme Court must clarify the legal position on the consequences of the informant continuing as investigating officer in criminal investigations. The decision in Mohan Lal does exactly that. But as suggested above, there are some gaping holes with respect to how the Court arrived at its holding and the ultimate rule itself might not be very useful for accused persons as it might encourage deception by the police. 

This is not all that Mohan Lal does, though, which brings me to the good parts. Potentially the more lasting impact of this decision is not this elaboration on the right to fair investigations, but the remedy for its breach. 

Seemingly unknowingly, the Court has opened a brand new gateway for defence-oriented litigation based on the result in Mohan Lal. In Paragraph 26 the Court held that "the prosecution was vitiated because of the infraction of the constitutional guarantee of a fair investigation." (emphasis mine). Thus the remedy for violating the right to a fair investigation under Article 21 is to throw out the prosecution. In the hands of inventive lawyers and willing courts, this remedy can be used to achieve some significant results to help transform criminal investigations. I say this, because the scope of "fair investigation" is quite broad. In Mohan Lal, the Court relied on its earlier decision in Babubhai v. Gujarat [(2010) 12 SCC 254], which said that "fair investigation" protects defendants against "any kind of mischief or harassment" by the police. This phrasing carries a much more robust meaning than merely imposing procedural limitations on who conducts investigations, to addressing the substance of what goes on during investigations as well to curb police brutality, illegal detention, and the forging of records that are a frequent cause for concern.