Fairness of Investigation is an Important Facet of the Rule of Law

In Sasi Thomas v. State, (2006) 12 SCC 421, fairness of investigation is held to be an important facet of the rule of law. The Supreme Court has, in this regard, observed as follows:-

• Proper and fair investigation on the part of the investigating officer is the backbone of rule of law. A proper and effective investigation into a serious offence and particularly in a case where there is no direct evidence available assumes great significance as collection of adequate materials to prove the circumstantial evidence becomes essential.

# Investigation

This is a case of Murder of wife by husband obtaining of false certificate from doctor certifying heart-failure as the cause of death and buried the dead body. Brother of deceased filing complaint raising suspicion about the cause of death. Dead body exhumed. Post mortem report reveals that she died of insecticides poisoning. Final report stating that deceased committed suicide.

Challenge to High Court directing CB-CID to conduct investigation. Investigation report charging the husband under Section 306 IPC for commission of abetment of suicide and also for committing offences u/s. 207 IPC.

Filing of an application u/s. 482 Cr.P.C. for further investigation by CBI dismissed by the High Court. On appeal, the Apex Court held that since doubt as to cause of death raised, statutory duties should have been carried out fairly by the Investigating authorities. They submitted a final report stating that the deceased might have committed suicide without any material in support thereof.

In the facts and circumstances of the case, trial Court directed that it may exercise its discretionary jurisdiction and may, if case so made out, make alteration of charges and could also consider the question from view point of complainant as regards the circumstances which points out guilt of accused.

While disposing of the appeal, the Apex Court held that the Complainant has not been treated fairly. When a death has occurred in a suspicious circumstance and in particular when an attempt had been made to bury the dead body hurriedly and upon obtaining apparently an incorrect medical certificate, it was expected that upon exhumation of the body, the investigating authorities of the State shall carry out their statutory duties fairly.

It is clearly a matter of great concern that the authorities did not become alive to the situation. Although the dead body was buried on the premise that the deceased died of heart attack, a final report was submitted stating that she might have committed suicide. It is not known, on what material, such an opinion was arrived at by the investigating officer. It is only because of the persistent efforts on the part of the complainant to move the High Court, a further investigation was directed to be made by CB-CID.

It is not known, whether fourteen circumstances enumerated by the Complainant had been duly taken note of and investigation in this behalf had been carried out. Although the CBI in its counter-affidavit has supported the impugned judgment of the High Court but as noticed, it without looking into the documents opined that although the said circumstances are relevant but they themselves had not proved commission of offence of murder of the deceased by her husband. It was not expected of the CBI to file such an affidavit. Even the Additional Solicitor General appearing on behalf of the CBI was not satisfied therewith and sought to withdraw the same.

The investigating officer and particularly CB-CID should have made a thorough investigation. If the allegations made by the complainant are correct, the same depicts a sordid state of affairs.

The job of the investigating officer is to make investigation in right direction. The investigation must be in consonance with the ingredients of the offence. It cannot be haphazard or unmethodical.

# Power of Supreme Court to Interference with the trial

A bench comprising of S.B. Sinha & Markandey Katju JJ. also held that the powers of Apex Court both under Articles 32 and 142 of the Constitution of India are plenary in nature. The High Court or Apex Court in exercise of the said power is entitled to reach injustice wherever it is found. But, it is not a case where cognizance had not been taken. It is not even a case where a direction under Sub-section (8) of Section 173 of the Code of Criminal Procedure can be issued at this stage. It is also not a case to interfere with the trial of the case.

# Alteration of charges – Powers of trial Court – Discussed.

Trial Court is not powerless. It, if a case is made out, can exercise its discretionary jurisdiction under Section 311 of the Code of Criminal Procedure as also Section 391 thereof. In the event of open marshalling of the evidence, it comes to the opinion that a case has been made out for alteration of charge, it indisputably can do so in exercise of its power under Section 311 of the Code of Criminal Procedure. In a given case again it can consider the question from the viewpoint of the complainant as regards the existence of circumstances which point out to the guilt of Respondent No. 4-husband.

It is a fit case where the complainant should be permitted to engage a lawyer on his behalf who would assist the public prosecutor. It is placed on record that the Counsel for the State assured Apex Court that the same shall not be objected to. In the event the State is of the opinion that the prosecution should be conducted by a public prosecutor of repute and having sufficient experience, it would not hesitate to appoint one.

Trial Judge is directed if any occasion arises therefor, to exercise his power under Section 311 of the Code of Criminal Procedure upon considering the facts and circumstances of this case.

Although it is not beyond the jurisdiction of Apex Court to direct further investigation by the CBI as contradistinguished from reinvestigation at this stage, but the same is declined, keeping in view the fact that 47 witnesses including the appellant himself have already been examined and recourse thereto can be taken if during trial a case therefor is found to be have been made out.

Facts of the Case

Appellant’s sister was married with Respondent No. 4, Vice-President in a reputed bank in USA. They obtained naturalized citizenship in USA. In the meantime, the husband developed intimacy with another woman and the wife came back to India with her children on five years visa.

Later, her husband also came back to India. She died on 24.01.1998 in mysterious circumstances. She was stated to have died of heart failure. Respondent No. 5, a doctor gave a certificate to that effect. Brother of the deceased, appellant made complaints to various authorities whereupon the body of the deceased was exhumed on 22.04.1998 and a post mortem was conducted.

It was opined in the post-mortem report that she died of Organo Phosphorous Insecticide poisoning. The police investigated the matter and submitted a final report.

Challenging the report, the appellant filed a writ petition praying for further investigation in terms of Sub-section (8) of Section 173 of the Code of Criminal Procedure. High Court directed investigation to be carried by CB-CID. After investigation, final report was submitted by the authorities charging the husband for commission of offence of abetment of suicide under Section 306 and respondent No. 5 for commission of offence under Section 201 of the Indian Penal Code.

The trial has commenced, however, the appellant filed an application before the High Court purported to be under Section 482 of the Code of Criminal Procedure praying for further investigation by the CBI. The application was dismissed by the High Court. Hence the present appeal.

The appellant contended that the High Court was not correct in not allowing further investigation without taking into consideration two important developments in the case, viz. a case from heart attack was made out at an initial stage, whereafter a case of abetment of suicide was made out, which would go to show as to how the investigation has been carried out both by the general police or by the CB-CID; and that there are various circumstances which would clearly point out that the accused-husband committed murder of the deceased-wife.

Accused-respondent No. 4 submitted that if sufficient evidences are brought on record, the Trial Judge could alter the charge in exercise of its jurisdiction under Section 216 of the Code of Criminal Procedure.

Accused-respondent No. 5 submitted that the question of directing a further investigation against him does not arise as he has been charged only under Section 201 of the Indian Penal Code.

The State submitted that Apex Court should not exercise its discretionary jurisdiction to direct further investigation at this stage in the matter as the same would amount to a re-investigation.

On behalf of CBI, it was submitted that unfortunately it is possible that adequate materials had not been collected during investigation and in the event it is found that the investigating officers have failed to perform their statutory duties, Apex Court may issue appropriate direction in exercise of its jurisdiction under Article 142 of the Constitution of India.

Case Law Reference

1. Amar Chand Agarwala v. Shanti Bose and Anr., AIR 1973 SC 799
2. Gudalure M.J. Cherian and Ors. v. Union of India and Ors., [1992] 1 SCC 397
3. Hasanbhai Valibhai Qureshi v. State of Gujarat and Ors., [2004] 5 SCC 347
4. MC v. Bulgaria, 15 BHRC 627
5. Paramjit Kaur (Mrs.) v. State of Punjab and Ors., [1996] 7 SCC 20
6. Rajesh and Ors. v. Ramdeo and Ors., [2001] 10 SCC 759
7. Rajiv Ranjan Singh ‘Lalan’ (VIII) and Anr. v. Union of India and Ors., [2006] 6 SCC 613
8. Ramesh Kumari v. State (NCT of Delhi) and Ors., [2006] 2 SCC 677
9. Shashikant v. C.B.I. & Ors., (2006) 11 SCALE 272
10. Union of India v. Sushil Kumar Modi, [1998] 8 SCC 661
11. Zahira Habibulla H. Sheikh and Anr. v. State of Gujarat and Ors., [2004] 4 SCC 158

Advocates V.J. Francis, A. Radhakrishnan, Anupam Mishra and Ritu Bhardwaj appeared for the Appellant and A. Sharan, V.G. Pragasam, S. vallinayagam, Dayan krishnan, Gautam Naryan, Nikhil Nayyar, K.V. Viswanathan, B. Raghunath, R. Nedumaran, Tufail A.Khan and P. Parmeswaran for the Respondents.

Equivalent Citations: (2006) 12 SCC 421 : 2006 (12) Scale 507 : 2006 (Supp) SCR 450 :2007 (2) SCC (Cri) 72 : 2007 (2) JCR 240 : 2007 (50) AIC 385 : 2007 (3) Cri.CC 158 : 2007 (1) PLJR 193 : 2007 (2) Supreme 192 : 2007 RajCriC 305 : 2007 (1) JLJR 177 :2007 (1) LRC 477 : 2007 (2) Crimes 118 : 2007 (1) RCR (Criminal) 695 : 2007 (1) RAJ 302