Update: Less Than a Year and Clouds Already Over the Mohan Lal Judgment

In August 2018, a Three Justices' Bench of the Indian Supreme Court decided Mohan Lal v. State of Punjab [Criminal Appeal 1880 of 2011, decided on August 17, 2018]. The case decided the issue of whether the police officer who was the informant in a case could continue as the investigating officer, and held that this was prohibited and any such continuation would make the subsequent trial invalid. The case was discussed in detail on the Blog and while I agreed that a resolution of the legal issue was required I disagreed with the approach. The reason for this was a perceived mismatch between the problem and solution.

The problem here was a possible bias in the investigating officer's mind, and the likelihood that this could taint the entire case and lead to an unjust conviction. If you agree that this is a problem and a likely one at that — which I argued it is — there are still different remedies that can be imagined to help address it. Primarily, courts can either engage in a factual appreciation to examine the claims of bias, or can engage in a thumb-rule kind of approach which says that all such cases call for remedial action. The remedy that the bench in Mohan Lal considered fit was the latter: it held that there was no need for factual determinations to determine the likelihood or appearance of bias. Instead, the very fact, of the informant officer continuing on with the investigation, was good enough to deem the proceedings as tainted. 

I argued that this wasn't the correct cure for the problems, for several reasons. On the one hand, the rule places an extra burden on the police which is already acknowledged as poorly resourced when it comes to officers who can take up investigations. I also argued that this gave the police perverse incentives to lie and fudge records to be compliant with the law and simply change the name of the officer on paper rather than actually invest and get more officers to conduct investigations. Then there was the perception issue: defendants would be seen as getting away on technicalities, even if the entire case was conducted immaculately. 

It appears that the last of these has now stung a different bench of the Supreme Court. On 17.01.2019, a two Justices' bench in Mukesh Singh v. State [an appeal in an NDPS case] cast doubts over the validity of Mohan Lal and said that the remedy was "too drastic". They have placed the case before another Three Justices' Bench. We cannot know when that bench will preside and hear the case, and till then Mohan Lal remains good law. But it is telling that a decision that was passed to resolve a legal issue has already attracted the dissatisfaction of other members of the Supreme Court. 

It will be very interesting to see how this prickly debate is settled. One hopes that whatever ultimate judicial treatment the issues get, they are better than the manner in which the aftermath of another problematic opinion in Girish Kumar Suneja was addressed by the Court in Asian Resurfacing.