*UPDATE 31/08/2020 – The view that the informant cannot be the investigator and in such a case the accused is entitled to acquittal has been overruled by a Constitution Bench of the Supreme Court*
A 3-Judge bench comprising of Justice Ranjan Gogoi, Justice R. Banumathi and Justice Navin Sinha today ruled in the case of Mohan Lal v. State of Punjab that
(Para 14) “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.”
(Para 24) “An investigation is a systemic collection of facts for the purpose of describing what occurred and explaining why it occurred. The word systemic suggests that it is more than a whimsical process. An investigator will collect the facts relating to the incident under investigation. The fact is a mere information and is not synonymous with the truth.”
(Para 25) “It is therefore held that a fair investigation, which is but the very foundation of fair trial, necessarily 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.”
(Para 26) “The prosecution is held to be vitiated because of the infraction of the constitutional guarantee of a fair investigation. The appellant is directed to be set at liberty”
The Supreme Court reiterated that the right of the accused to a fair investigation and fair trial is guaranteed under Article 21 of the Constitution. It is not 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. it was also stated that “a fair trial” to an accused, a constitutional guarantee under Article 21 of the Constitution, would be a hollow promise if the investigation were not to be fair or raises serious questions about its fairness apparent on the face of the investigation.
The Apex Court further enunciated that in a criminal prosecution, there is an obligation cast on the investigator not only to be fair, judicious and just during investigation, but also that the investigation on the very face of it must appear to be so, eschewing any conduct or impression which may give rise to a real and genuine apprehension in the mind of an accused and not mere fanciful, that the investigation was not fair. 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.
Thus this would lead to the violation of the Fundamental Right of an accused to have a fair trial. Therefore the 3-Judge bench ruled that the accused would be set to liberty as the prosecution would be vitiated.