A very tragic case has come before this Court today.
A model was allegedly being driven at 2.00 in the morning from a nightclub by an actor friend and due to an accident, which involved the car and both
the persons in it were injured and as a result of the said injuries, it is claimed, that the said model died. It became a cause célèbre. Had the model
been alive perhaps they would have tried to hush up the matter and had another late-night party to celebrate, their safe return after a night of revelry.
Because the model died her father is interested in being heard in a proceeding where the prosecution has alleged that the accused was guilty of
culpable homicide not amounting to murder. The Court understands the desperation and helplessness of a father whose daughter has died.
This is not a case where the Court can ride a moral high-horse and lecture parents who have not taught their offspring about the perils of such a
lifestyle. This is a not a case where the Court will ask itself the question where a so-called cultured society is going when it does not ask its members
what their unmarried adult children are doing by driving at high-speed from night clubs in the shallows of the morning, instead of burning the midnight
oil, working for a livelihood or studying or even sleeping. The Court shall not even try to ask Mr. Ghosh to remind his client that all actors do not lead a
charmed life regardless of suicidal black bucks and compliant drivers. Rather the Court shall consider the point of law raised.
Mr. Ghosh has submitted that this case shows that the complainant himself is the investigating o0fficer and it has been held in the case of Mohanlal
Vs. State of Punjab, reported in (2018) SCC online SC 974 (Bench Strength - 3) as follows: -
14. A fair trial to an accused, a constitutional guarantee under Article 21 of the Constitution, would be a hollow promise if the investigation in a 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 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.
18. 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 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 (supra) related to a prosecution under Section 165A of the 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 (supra) 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 (supra) 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(supra) the accused was acquitted.
The view taken by the Madras High Court in Balasundaran v. State, 1999 (113) ELT 785 (Mad.), was also noticed as follows : '16. Learned Counsel
for the appellants also stated that P.W.5 being the Inspector of Police who was present the time of search and he was the Investigating officer and as
such it is fatal to the case of the prosecution. P.W.5, according to the prosecution, was present with P.W.s 3 and 4 at the time of search. In fact,
P.W. 5 alone took up investigation in the case and he had examined the witnesses. No doubt the successor to P.W.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 P.W.5 was the person who really investigated the
case. P.W.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'.
Accordingly, he prays that the entire proceeding ought to be quashed. He submits that his application for discharge was rejected by the learned Court
below and seeks that further proceedings in such case be stayed till the disposal of the present case before this Court.
I have allowed the father of the victim to submit before me through Mr. Ganguly, learned Senior Advocate ably assisted by Mr. Somopriya
Chowdhury, learned Advocate and I have also heard learned Public Prosecutor, who was gracious enough to address me even though no copy of the
petition was served on him in advance and even though the copy of the judgment relied upon by Mr. Ghosh was provided to him for the first time at
the time this matter was called on, as a matter listed pursuant to a direction of the coordinate bench granted earlier, on grounds of urgency. He was
neither served with the application nor the case diary is available with him but he made a gallant attempt to assist me on the interpretation of the law
and the principles of prejudice when the complainant is himself the investigating officer. He submitted - as did Mr. Ganguly, learned Senior Advocate -
that there are other judgments of a bench of equal strength of the Hon'ble Supreme Court, on the same point, which expounds the principle of
prejudice exactly on the same point, somewhat differently.
After considering the submissions made, prima facie I believe Mr. Ghosh has been able to make out a case for this Court to consider as a question of
law. However, learned Public Prosecutor submits that the next date before the learned Court below is fixed on December 03, 2018 and therefore,
there is no such urgency as would require Mr. Ghosh to move this Court during its vacation bench. Unfortunately, I cannot, in all judicial propriety,
consider whether the case was of such urgency as warranted its moving before the vacation bench, simply because a coordinate bench granted the
petitioner the leave to do so, being satisfied of the urgency. The order granting leave does not leave the question of urgency subject to the satisfaction
of the Bench before which the matter was to be moved, but is a leave simplicitor, to move before this Bench. I am therefore, unable, as a coordinate
bench, to accept in all propriety the submission that a coordinate bench did not apply its mind to the records before granting the leave in those terms.
Â
I, therefore, feel that this is a fit and proper case where the question of law raised by Mr. Ghosh and opposed by Mr. Mukherjee, learned Public
Prosecutor on the ground that it pertains only to cases under the NDPS Act and by Mr. Ganguly, learned Senior Advocate also on the ground that this
is not only the judgment on the point and there are other judgments of equal Bench strength which holds exactly the opposite, will have to be
considered.
Therefore, justice will be served if the question of law is decided as expeditiously as possible by this Court. The learned Court below, it is expected,
shall not proceed with the trial of the matter until this Court has been able to consider the question of law and dispose of the same. So that there is
some incentive for the petitioner to ensure that the matter is disposed of by this Court, and the above question is decided, one way or the other, there
shall be stay of all further proceedings pending before the learned Court below for a period of one month from the date of reopening of this Court
after the Long Vacation. There shall be no liberty to apply for extension on the self-same application. This order shall not prevent the petitioner from
applying afresh for fresh stay, if circumstances are so made out. Records of the case shall not be called for though the learned Public Prosecutor shall
prepare one copy of the records for the court and two copies for the petitioner and the client of Mr. Ganguly, and retain one copy for himself, without
the original records leaving the premises of the learned court below.
A copy of the application shall be served upon Mr. Mukherjee through his junior as also Mr. Ganguly through his junior. Mr. Ganguly shall be allowed
to address the Court on the point of law and facts and the copy of the records as aforesaid shall be made available by the learned Public Prosecutor at
least five days before the matter is listed for final hearing before this Court.
Let the matter appear as For Orders before the regular Bench two weeks after reopening of this Court after long vacation subject to the convenience
of His Lordship.
Liberty to pray for vacating the interim order.
Let photostat plain copy of this order countersigned by the Assistant Registrar (Court) be given to the petitioner on usual undertaking.
