SC: If informant & investigator are same, it doesn’t always lead to vitiation of prosecution

The Hon’ble Supreme Court, today i.e. on 11th February 2019, in the matter of Varinder Kumar v. State of Himachal Pradesh, observed that if the informant and investigator are the same person, it does not always lead to vitiation of prosecution as it depends on facts of each case, therefore all the pending criminal prosecutions, trials and appeals prior to the recently decided Mohan Lal v. State of Punjab shall not get the benefit of the said judgement and shall continue to be governed by individual facts of the case.

The Hon’ble Supreme Court observed that:

Individual rights of the accused are undoubtedly important. But equally important is the societal interest for bringing the offender to book and for the system to send the right message to all in the society —be it the law­abiding citizen or the potential offender. ‘Human rights’ are not only of the accused but, extent apart, also of the victim, the symbolic member of the society as the potential victim and the society as a whole. (Para 12)

Law has to cater to wide variety of situations as appear in society. Law being dynamic, the certainty of the legislation appears rigid at times whenever a circumstance (set of facts) appears which is not catered for explicitly. Expediency then dictates that the higher judiciary, while interpreting the law, considers such exception(s) as are called for without disturbing the pith and substance and the original intention of the legislature. This is required primarily for the reason to help strike a balance between competing forces – justice being the end – and also because the process of fresh legislation could take a long time, which would mean failure of justice, and with it erosion of public confidence and trust in the justice delivery system. (Para 13)

The principle of fair trial now informs and energises many areas of the law. It is a constant, ongoing, evolutionary process continually adapting itself to changing circumstances, and endeavouring to meet the exigencies of the situation – peculiar at times – and related to the nature of crime, persons involved, directly or operating from behind, and so many other powerful factors which may come in the way of administration of criminal justice, wherefore the endeavour of the higher courts, while interpreting the law, is to strike the right balance. (Para 14)

Societal interest therefore mandates that the law laid down in  Mohan Lal vs. State of Punjab(AIR 2018 SC 3853). cannot be allowed to become a spring board by an accused for being catapulted to acquittal, irrespective of all other considerations pursuant to an investigation and prosecution when the law in that regard was nebulous. Criminal jurisprudence mandates balancing the rights of the accused and the prosecution. (Para 15)

The criminal justice delivery system, cannot be allowed to veer exclusively to the benefit of the offender making it uni­directional exercise. A proper administration of the criminal justice delivery system, therefore requires balancing the rights of the accused and the prosecution, so that the law laid down in Mohan Lal vs. State of Punjab is not allowed to become a spring board for acquittal in prosecutions prior to the same, irrespective of all other considerations. We therefore hold that all pending criminal prosecutions, trials and appeals prior to the law laid down in Mohan Lal vs. State of Punjab  shall continue to be governed by the individual facts of the case. (Para 18)

Copy of judgement: Judgement_11-Feb-2019

-Tushar Kaushik

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