Snippet: A Constitution Bench Overrules The Mohan Lal Verdict

Just over two years ago, a Three Justices' Bench of the Supreme Court delivered a unanimous verdict in Mohan Lal [AIR 2018 SC 3853]. The judgment endorsed a significant proposition: An officer who was the informant in a case (the facts there had a narcotics investigation) could not continue as the investigating officer for the same case. Wherever the officer was the same, it cast an indelible doubt over the impartiality of the investigation, which rendered all subsequent proceedings illegal in the case. The Court had noted that its observations were not limited to only narcotics cases but also applied to investigations generally (though this was not very clear from reading the judgment as a whole).

This Blog had in its analysis been critical of this view of presumptive bias, arguing instead in favour of an approach which considered the facts to find out if there was a reasonable likelihood bias in the specific case. Not only was this approach unappealing in law, I also argued that the approach would result in several practical impediments given (i) the consequences it would have  on pending cases, and (ii) understaffed nature of police forces, and it would not be unlikely that the pronouncements are revisited. 

It did not take long for a Two Justices' Bench of the Supreme Court to raise some of these doubts in Mukesh Singh and it was requested that the matter be placed before a Bench of appropriate strength to consider the problems. In the meanwhile, a different Three Justices' Bench of the Court delivered Varinder Kumar [(2019) SCC OnLine SC 170] whereby it agreed with Mohan Lal on the issue of bias but rendered the judgment applicable only prospectively, in a bid to insulate ongoing trials and prevent convicted persons from taking this ground for challenge in pending appeals. That decision was deeply problematic for its treatment of the issue, where the bench seemingly likened the procedural rights of accused persons as benefits.

It has been reported that Constitution Bench has decided a batch of matters today, i.e. on 31.08.2020 (including the reference in Mukesh Singh) and reversed the view taken in Mohan Lal, and has held that the facts of the case must be considered before arriving at a finding on the issue of bias. While the judgment is still awaited, on first blush at least this seems like a sensible course to adopt. A more detailed post will follow.  

P.S.: What the judgment will hopefully not disturb, though, are the observations made by the Court in Mohan Lal regarding the right to a fair investigation. The reason for vitiating proceedings as per the Mohan Lal court was the "infraction of the constitutional guarantee of fair investigation".  There can be no qualms with the proposition that there is a guarantee of fair investigations, and I hope that the baby does not get thrown out with the bathwater.