PETITIONER: NAVINCHANDRA N.MAJITHIA Vs. RESPONDENT: STATE OF MEGHALAYA AND OTHERS C DATE OF JUDGMENT: 16/10/2000 BENCH: R.P.Sethi, S.N.Variva, K.T.Thomas JUDGMENT:
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THOMAS, J. The police inaction to carry on with the
investigation in a particular criminal case was attributed
to financial crunch of the State and the High Court directed
the complainant to supply funds to the police to meet the
cost. The party against whom the case was filed felt that
such privately funded investigation tantamounts to hired
investigation which would mar the sanctity of the purpose of
statutory investigation and hence he approached this Court
for special leave to appeal. Leave granted. Facts which
led to the issuance of the aforesaid direction, briefly, are
the following: A Mumbai based company claimed ownership of
certain land situated at a commercially strategic location
in the city of Mumbai. Another company the headquarters of
which is at Shillong in Meghalaya, entered into some
transaction with the Mumbai Company in respect of the said
land. Further details of the disputes are not very
necessary for this appeal except stating from the stage of
commencement of the criminal proceedings. An FIR was lodged
by the Shillong company with the Shillong police alleging
that the Mumbai Company has cheated Shillong Company to the
tune of Rupees nine crores. Sometime after lodgment of the
said FIR the Shillong Company observed that the police was
not moving ahead with the investigation as fast or as
distant as the company expected. Hence the Shillong company
filed a Writ Petition before the High Court of Guwahati for
appropriate directions. A single judge of the High Court
passed a direction the extract of which reads thus:
In the circumstances I direct that in case the
petitioner is ready to deposit the amount which would be
required to undertake the investigation and for the visit of
the senior police officers to Bombay in connection with the
investigation work the state government shall allow them to
do so and direct the investigating team to proceed in right
earnest and speedily.
It is further directed that the amount that would be
required to undertake the investigation will be intimated to
the petitioner within one week and the petitioner shall make
the deposit of the amount within three days thereafter.
As the above direction was obviously unpalatable to
the Director General of Police, Meghalaya, he and the Home
Secretary of the State filed an appeal along with the State
before a Division Bench of the High Court challenging the
said direction issued by the Single Judge. According to the
State, the investigation has to be conducted in Mumbai by
the Maharashtra police and hence the direction issued by the
Single Judge is unworkable. But the said contention was
repelled by the Division Bench. Regarding the direction
issued by the Single Judge to get funds from the aggrieved
complainant, the Division Bench did not dilate much.
Nevertheless learned judges did not interfere with the said
direction and observed that in any case the learned single
judge has passed a just and proper order in view of the
peculiar facts and circumstances of the case.
In this context we may point out that appellant was
not brought into the array even at the above stage. He was
kept in dark about all what happened at Shillong as the
appellant was doing his business confining to the radius of
Mumbai. But when he was called by the police in connection
with the FIR lodged at Shillong, he learned about the facts
which preceded till then. Hence he moved the High court of
Bombay in a Writ Petition under Article 226 of the
Constitution for quashing the FIR and the further
proceedings taken thereon. But a Division Bench of Bombay
High Court expressed helplessness in the matter and
dismissed the Writ Petition on the sole ground that the High
Court of Bombay has no jurisdiction under Article 226 of the
Constitution to deal with an FIR registered at Shillong.
When the said Writ Petition was dismissed, the
appellant rushed to this Court with two Special Leave
Petitions, one in challenge of the aforesaid judgment of the
Bombay High Court which dismissed his Writ Petition for want
of territorial jurisdiction and the other in challenge of
the judgment of the Division Bench of the Guwahati High
Court as per which the Shillong police is directed to
collect funds from the respondent company.
We may point out, contextually, that the special leave
petition filed by the appellant against the judgment of the
High Court was separately dealt with by granting leave and
judgment in that appeal was pronounced. It is reported as
Navinchandra N.Majithia vs. State of Maharashtra and others
JT 2000 (10) 2 SC 61. This Court by the said judgment
ordered transfer of the FIR lodged by the respondent company
with the Shillong police for investigation of the Mumbai
police.
It was thought that as the grievance of the appellant
was redressed by the aforesaid direction made by this Court.
But learned counsel for the appellant as well as the State
of Meghalaya submitted that the judgment of the Guwahati
High Court would open a Pandoras box as many would claim
the same benefit and the role of the State function would
plummet. The counsel further said that the direction cannot
be allowed to remain in force as it is contrary to the
scheme of the Code of the Criminal Procedure. Hence they
insisted on a decision in this appeal on merits.
Thus, the question has bogged down to this: Can a
statutory investigating agency be directed to obtain
financial assistance from private parties for meetin
the expenses required for conducting the
investigation.
Investigation is defined in Section 2(h) of the Code
as including all the proceedings under this Code for the
collection of evidence conducted by police officer or by any
person (other than a magistrate) who is authorised by a
magistrate in this behalf. Hence no proceedings outside
provision of the Code can be dragged into the contours of
investigation. In other words, any proceedings falling
outside the ambit of the Code will not be regarded as
investigation for the purpose of the Code. Under the scheme
of the Code, investigation commences with lodgment of
information relating to the commission of an offence. If it
is a cognizable offence, the officer-in-charge of the police
station to whom the information is supplied orally has a
statutory duty to reduce it to writing and get the signature
of the informant. He shall enter the substance of the
information, whether given in writing or reduced to writing
as aforesaid, in a book prescribed by the State in that
behalf. The Officer-in-charge has no escape from doing so
if the offence mentioned therein is a cognizable offence,
whether or not such offence was committed within the limits
of that police station. But when the offence is
non-cognizable, the officer-in-charge of the police station
has no obligation to record it if the offence was not
committed within the limits of his police station. Section
156(1) of the Code says that the said police officer can
investigate any cognizable offence covered by the said FIR,
if the said offence could be inquired into or tried by a
Court having jurisdiction over the local area of that police
station. If the offence was committed outside the limit of
such police station, the officer-in-charge of the police
station can transmit the FIR to the police station having
such territorial jurisdiction. Various States have
formulated rules for effecting transfer of such FIR in such
contingencies.
Investigation thereafter would commence and the
investigating officer has to go step by step. The Code
contemplates the following steps to be carried out during
such investigation:
(1) Proceeding to the spot; (2) ascertainment of the
facts and circumstances of the case; (3) discovery and
arrest of the suspected offender; (4) collection of
evidence relating to the commission of the offence which may
consist of (a) the examination of various persons
(including the accused) and the reduction of their
statements into writing, if the officer thinks fit, (b) the
search of places of seizure of things considered necessary
for the investigation and to be produced at the trial; and
(5) formation of the opinion as to whether on the material
collected there is a case to place the accused before a
magistrate for trial and, if so, taking the necessary steps
for the same by the filing of a charge-sheet under Sec.173.
(vide HN Rishbud vs. State of Delhi [AIR 1955 SC 196}
and State of Madhya Pradesh vs. Mubarak Ali [AIR 1959 SC
707]).
All the above duties are conferred by the statute on
the police and they shall be carried out as they are
statutory duties. The sublime idea behind formulating such
steps for conducting investigation is to enable the
statutory authority to independently carry out the
investigation without being influenced by any of the
interested parties. Investigation must not only be fair but
impartial and the conclusion reached by them should be
unbiased.
A Division Bench of the Madras High Court had pointed
to that object of the statutory investigation in re Muddamma
Malla Reddy [1954 Crl.L.J.167] through the following
observations:
The investigating police are primarily the guardians
of the liberty of innocent persons. A heavy responsibility
devolves on them of seeing that innocent persons are not
charged on irresponsible and false implication. There is a
duty cast on the investigating police to scrutinize a first
complaint in which number of persons are implicated with
rigorous care and to refrain from building up a case on its
basis unless satisfied of its truth.
In Sirajjuddin vs. State of Madras [1970 (3) SCR 931]
this Court said thus, after referring to various provisions
in the Code dealing with investigation:
All the above provisions of the Code are aimed at
securing a fair investigation into the facts and
circumstances of the criminal case; however serious the
crime and howsoever incriminating the circumstances may be
against a person supposed to be guilty of a crime the Code
of Criminal Procedure aims at securing a conviction if it
can be had by the use of utmost fairness on the part of the
officers investigating the crime before the lodging of a
charge- sheet. Clearly the idea is that no one should be
put to the harassment of a criminal trial unless there are
good and substantial reasons for holding it.
The said observations were followed by this Court in
State of Rajasthan vs. Gurcharandas Chadha [1980 (1) SCC
250].
The Code does not recognise private investigating
agency. If any person is interested in hiring any such
private agency, he may do so at his own risk and cost, but
such investigation would not be regarded as investigation
made under law. Any evidence collected in such private
investigation and any conclusion reached by such
investigators cannot be presented by Public Prosecutor in
any trial. Of course it may be possible for the defence to
present such evidence. In this context, we may refer to a
recent decision of this Court R.Sarala vs. TS Velu [2000
(4) SCC 459]. This Court said that even a Public Prosecutor
cannot be officially involved during the stage of
investigation. The following observations made by this
Court in the said decision will be useful:
Investigation and prosecution are two different
facets in the administration of criminal justice. The role
of a Public Prosecutor is inside the court, whereas
investigation is outside the court. Normally the role of a
public Prosecutor commences after the investigating agency
presents the case in the court on culmination of
investigation. Its exception is that the Public Prosecutor
may have to deal with bail applications moved by the parties
concerned at any stage. Involving the Public Prosecutor in
investigation is unjudicious as well as pernicious in law.
At any rate no investigating agency can be compelled to seek
the opinion of a Public Prosecutor under the orders of the
Court.
The above discussion was made for emphasising the need
for official investigation to be totally extricated from any
extraneous influence. The police investigation should
necessarily be with the fund supplied by the State. It may
be possible for a rich complainant to supply any amount of
fund to the police for conducting investigation into his
complaint. But a poor man cannot afford to supply any
financial assistance to the police. It is an acknowledged
reality that he who pays the piper calls the tune. So he
would call the shots. Its corollary is that somebody who
incurs the cost of anything would normally secure its
control also. In our constitutional scheme, the police and
other statutory investigating agency cannot be allowed to be
hackneyed by those who can afford it. All complaints shall
be investigated with equal alacrity and with equal fairness
irrespective of the financial capacity of the person lodging
the complaint.
Financial crunch of any state treasury is no
justification for allowing a private party to supply funds
to the police for conducting such investigation.
Augmentation of the fiscal resources of the State for
meeting the expenses needed for such investigations is the
lookout of the executive. Failure to do it is no premise
for directing a complainant to supply funds to the
investigating officer. Such funding by interested private
parties would vitiate the investigation contemplated in the
Code. A vitiated investigation is the precursor for
miscarriage of criminal justice. Hence any attempt, to
create a precedent permitting private parties to supply
financial assistance to the police for conducting
investigation, should be nipped in the bud itself. No such
precedent can secure judicial imprimatur. If the impugned
judgments are allowed to stand, it would set up an
unwholesome precedent. Hence we set aside the directions
contained in the impugned judgments for supplying funds to
the police.
