Vikash Kumar v. State NCT of Delhi

Delhi High Court · 01 Jul 2024 · 2024:DHC:4912

Subramonium Prasad

CRL.M.C. 4891/2024

2024:DHC:4912

criminal petition_allowed Significant

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The Delhi High Court quashed an FIR under the Delhi Prevention of Defacement of Public Property Act because the complainant and investigating officer were the same person, violating the constitutional right to a fair investigation and trial.

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CRL.M.C. 4891/2024
HIGH COURT OF DELHI
Date of Decision: 1st JULY, 2024 IN THE MATTER OF:

CRL.M.C. 4891/2024
VIKASH KUMAR ..... Petitioner
Through Ms. Bhawana Sehrawat, Mr. Chander Vardhan, Mr. Himanshu Bhardwaj and Mr. Gaurav Bhardwaj, Advocates.

VERSUS

STATE NCT OF DELHI ..... Respondent
Through Ms. Richa Dhawan, APP for the State.
SI Lalat Kumar, PS Bindapur.

CORAM:

HON'BLE MR. JUSTICE SUBRAMONIUM PRASAD

JUDGMENT

(ORAL)

CRL.M.A. 18667/2024
Allowed, subject to all just exceptions.

1. The Petitioner has approached this Court by filing the instant petition under Section 482 CrPC for quashing of FIR No.591/2023 dated 05.09.2023 registered at Police Station Bindapur for an offence under Section 3 of the Delhi Prevention of Defacement of Public Property Act, 2007.

2. It is stated that a charge-sheet under Section 3 of the Delhi Prevention of Defacement of Public Property Act, 2007 has been filed on 14.09.2023 by the Investigating Officer/Complainant before the learned CMM, Dwarka Court. It is undisputed that the Complainant and the Investigating Officer in the present case is the same officer.

3. Learned Counsel for the Petitioner submits that in the present case, Complainant and the Investigating Officer is the same which cannot be permitted. The issue as to whether the Complainant and the Investigating Officer can be same or not is no longer res integra.

4. The Apex Court in Mohan Lal v. State of Punjab, (2018) 17 SCC 627, while dealing with the issue as to whether a Complainant and the IO in a criminal prosecution can be the same person or not, has observed as under:-

“13. A fair trial to an accused, a constitutional guarantee under Article 21 of the Constitution, would be a hollow promise if the investigation in an NDPS case were not to be fair or raises serious questions about its fairness apparent on the face of the investigation. In the nature of the reverse burden of proof, the onus will lie on the prosecution to demonstrate on the face of it that the investigation was fair, judicious with no circumstances that may raise doubts about its veracity. The obligation of proof beyond reasonable doubt will take within its ambit a fair investigation, in the absence of which there can be no fair trial. If the investigation itself is unfair, to require the accused to demonstrate prejudice will be fraught with danger vesting arbitrary powers in the police which may well lead to false implication also. Investigation in such a case would then become an empty formality and a farce. Such an interpretation therefore naturally has to be avoided. 14. That investigation in a criminal offence must be free from objectionable features or infirmities which may legitimately lead to a grievance on the part of the

accused was noticed in Babubhai v. State of Gujarat [Babubhai v. State of Gujarat, (2010) 12 SCC 254: (2011) 1 SCC (Cri) 336] as follows: (SCC p. 269, paras 32-33)

“32. The investigation into a criminal offence must

be free from objectionable features or infirmities

which may legitimately lead to a grievance on the

part of the accused that investigation was unfair and

carried out with an ulterior motive. It is also the

duty of the investigating officer to conduct the

investigation avoiding any kind of mischief and

harassment to any of the accused. The investigating

officer should be fair and conscious so as to rule out

11,619 characters total

any possibility of fabrication of evidence and his

impartial conduct must dispel any suspicion as to its

genuineness. The investigating officer „is not merely

to bolster up a prosecution case with such evidence

as may enable the court to record a conviction but to

bring out the real unvarnished truth‟.

33. In State of Bihar v. P.P. Sharma [State of Bihar

v. P.P. Sharma, 1992 Supp (1) SCC 222 : 1992 SCC (Cri) 192] this Court has held as under: (SCC pp. 263-65, paras 57, 59 & 61) „57. … Investigation is a delicate painstaking and dextrous process. Ethical conduct is absolutely essential for investigative professionalism. … Therefore, before countenancing such allegations of mala fides or bias it is salutary and an onerous duty and responsibility of the court, not only to insist upon making specific and definite allegations of personal animosity against the investigating officer at the start of the investigation but also must insist to establish and prove them from the facts and circumstances to the satisfaction of the court.

***

59. Malice in law could be inferred from doing of wrongful act intentionally without any just cause or excuse or without there being reasonable relation to the purpose of the exercise of statutory power. … ***

61. An investigating officer who is not sensitive to the constitutional mandates, may be prone to trample upon the personal liberty of a person when he is actuated by mala fides.‟”

15. The duty of the prosecution under the NDPS Act, considering the reverse burden of proof, was noticed in Noor Aga [Noor Aga v. State of Punjab, (2008) 16 SCC 417: (2010) 3 SCC (Cri) 748] observing: (SCC p. 450, paras 58-59)

“58. … An initial burden exists upon the prosecution and only when it stands satisfied, would the legal burden shift. Even then, the standard of proof required for the accused to prove his innocence is not as high as that of the prosecution. Whereas the standard of proof required to prove the guilt of the accused on the prosecution is “beyond all reasonable doubt” but it is “preponderance of probability” on the accused. If the prosecution fails to prove the foundational facts so as to attract the rigours of Section 35 of the Act, the actus reus which is possession of contraband by the accused cannot be said to have been established. 59. With a view to bring within its purview the requirements of Section 54 of the Act, element of possession of the contraband was essential so as to shift the burden on the accused. The provisions

being exceptions to the general rule, the generality thereof would continue to be operative, namely, the element of possession will have to be proved beyond reasonable doubt.” (emphasis supplied)

16. Furthermore, the sample not having been deposited in the malkhana, coupled with non-examination of the private witnesses, an adverse inference was drawn therein against the prosecution. This principle has been reiterated in Bhola Singh v. State of Punjab [Bhola Singh v. State of Punjab, (2011) 11 SCC 653:

17. 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. In the circumstances, 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. 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.

18. The discussion in the present case may not be understood as confined to the requirements of a fair investigation under the NDPS Act only carrying a reverse burden of proof. Baldev Singh [State of Punjab v. Baldev Singh, (1999) 6 SCC 172: 1999 SCC (Cri) 1080] related to a prosecution under Section 165-A IPC. Nonetheless, it observed that if the informant were to be made the investigating officer, it was bound to reflect on the credibility of the prosecution case. Megha Singh [Megha Singh v. State of Haryana, (1996) 11 SCC 709: 1997 SCC (Cri) 267] concerned a prosecution under the Terrorist and Disruptive Activities (Prevention) Act, 1985. It was held that the Head Constable being the complainant himself could not have proceeded with the investigation and it was a practice, to say the least, which should not be resorted to so that there may not be any occasion to suspect fair and impartial investigation. Rajangam [State of T.N. v. Rajangam, (2010) 15 SCC 369: (2012) 4 SCC (Cri) 714] was a prosecution under the NDPS Act, an objection was taken that PW 6 who apprehended the accused could not have investigated the case. Upholding the objection, relying on Megha Singh [Megha Singh v. State of Haryana, (1996) 11 SCC 709: 1997 SCC (Cri) 267] the accused was acquitted. The view taken by the Madras High Court in Balasundaran v. State [Balasundaran v. State, 1999 SCC OnLine Mad 1130: (1999) 113 ELT 785], was also noticed as follows: (SCC OnLine Mad para 16)

“16. The learned counsel for the appellants also stated that PW 5 being the Inspector of Police who was present at the time of search and he was the investigating officer and as such it is fatal to the case of the prosecution. PW 5, according to the prosecution, was present with PWs 3 and 4 at the time of search. In fact, PW 5 alone took up investigation in the case and he had examined the witnesses. No doubt the successor to PW 5 alone

had filed the charge-sheet. But there is no material to show that he had examined any other witness. It therefore follows that PW 5 was the person who really investigated the case. PW 5 was the person who had searched the appellants in question and he being the investigation officer, certainly it is not proper and correct. The investigation ought to have been done by any other investigating agency. On this score also, the investigation is bound to suffer and as such the entire proceedings will be vitiated.” xxx

30. In view of the conflicting opinions expressed by different two-Judge Benches of this Court, the importance of a fair investigation from the point of view of an accused as a guaranteed constitutional right under Article 21 of the Constitution of India, it is considered necessary that the law in this regard be laid down with certainty. To leave the matter for being determined on the individual facts of a case, may not only lead to a possible abuse of powers, but more importantly will leave the police, the accused, the lawyer and the courts in a state of uncertainty and confusion which has to be avoided. 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. This requirement is all the more imperative in laws carrying a reverse burden of proof.” (emphasis supplied)

5. A Coordinate Bench of this Court in Prerna Singh v. State, CRL.M.C. No.2601/2019, after relying on the various judgments passed by the Apex Court, in similar circumstances, quashed an FIR under Section 3 of the Delhi Prevention of Defacement of Property Act, 2007 and has also observed that the Complainant and the Investigating Officer cannot be the same person.

6. In view of the law laid down by the Apex Court and keeping in view the facts of the present case, this Court is inclined to quash the FIR No.591/2023 dated 05.09.2023 registered at Police Station Bindapur for an offence under Section 3 of the Delhi Prevention of Defacement of Public Property Act, 2007 and the proceedings emanating therefrom qua the Petitioner.

7. Resultantly, FIR No.591/2023 dated 05.09.2023 registered at Police Station Bindapur for an offence under Section 3 of the Delhi Prevention of Defacement of Public Property Act, 2007 and the proceedings emanating therefrom are hereby quashed.

8. The petition is disposed of along with pending application(s), if any.

SUBRAMONIUM PRASAD, J JULY 01, 2024

Vikash Kumar v. State NCT of Delhi

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