DEFECTIVE INVESTIGATION

“An Investigator Is The Kingpin Of Criminal Justice Delivery System.”

- Amitbhai Anilchandra Shah v. CBI (2013) 6 SCC 348

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The purpose of the investigation is to explore in detail the allegations, to examine the evidence in
depth, and to determine specifically whether misconduct has been committed, and if so, the
responsible person and the seriousness of the misconduct. But there are certain cases where court
finds that there is a lack of free and fair investigation by the investigating officer. An
investigation is a defective investigation when it does not accomplish three – fold aim i.e. :
a) To identify the suspect
b) To locate the suspect
c) To provide evidence of guilt

“ Investigation’’  as defined in section 2 (h) of the Code of Criminal Procedure 1973 includes all
proceedings under this code for the collection of evidence conducted by a police officer or by
any person (other than a Magistrate) who is authorised by a Magistrate in this behalf . The word
“investigation” is defined but in the context it means no more than the process of collection of
evidence or the gathering of material. It is not necessary that it should commence with the
communication of an accusation to the person whose affairs are to be investigated. The defective
investigation means an investigation leads many latches and lacunas which may quietly resulted
acquittal of offender. The defects may to oversight or intentional but ultimate sufferer is victim
so also the society. 

The Criminal Procedural Code under which investigation of offences is conducted does not
contain any provision to deal with irregularities committed by Investigation Officers (I.O) in the
course of investigation. If investigation is illegal or suspicious, the rest of the evidence must be
scrutinized independent of the impact of the faulty investigation; otherwise, criminal trial will
descend to the I.O ruling the roost. Yet if the court is convinced that the evidence of
eyewitnesses is true, it is free to act upon such evidence though the role of the I.O in the case is
suspicious. The investigating officers commit many mistakes and latches in the investigation of
crimes and such mistakes and shortcomings continue to be unnoticed and unchecked up to the
police officers of the higher level of the police department.
Procedures & powers of police officers for investigation of crimes--- Sec. 154 to 176 of the
Cr.P.C. provides for the powers and procedures of the investigating officers for conducting
investigation of crimes. These sections in Cr.P.C. are as under---
Sec. 154--- Information in cognizable cases.
Sec. 155--- Information as to non-cognizable cases and investigation of such cases.
Sec. 156--- Police officer’s power to investigate cognizable case.
Sec. 157--- Procedure for investigation.
Sec. 158--- Report how submitted.
Sec. 159--- Power to hold investigation or preliminary inquiry.
Sec. 160--- Police officer’s power to require attendance of witnesses.
Sec. 161--- Examination of witnesses by police.
Sec. 162--- Statements to police not to be signed & used as evidence.
Sec. 163--- No inducement to be offered.
Sec. 164--- Recording of confessions and statements.
Sec. 164-A-- Medical examination of the victim of rape.
Sec. 165--- Search by police officer.
Sec. 166--- When officer-in-charge of police station may require another to issue search-warrant.
Sec. 166-A-- Letter of request to competent authority for investigation in a country or place
outside India.
Sec. 166-B-- Letter of request from a country or place outside India to a Court of an authority for
investigation in India.
Sec. 167--- Procedure when investigation cannot be completed in twenty four hours.
Sec. 168--- Report of investigation by subordinate police officer.
Sec. 169--- Release of accused when evidence deficient.
Sec. 170--- Cases to be sent to Magistrate when evidence is sufficient.
Sec. 171--- Complainant and witness not to be required to accompany police officer and not to
be subjected to restraint.
Sec. 172--- Diary of proceedings in investigation.
Sec. 173--- Report of police officer on completion of investigation.
Sec. 174--- Police to inquire and report on suicide, etc.
Sec. 175--- Power to summon persons.
Sec. 176--- Inquiry by Magistrate into cause of death.
Factors responsible for incomplete or defective investigation-
(i) Ignorance of the relevant law relating to investigations.
(ii) Lack of proper training of the investigating officers.
(iii) Non-availability of scientific and technical assistance.
(iv) Work load
(v) Non-professionalism & perfunctory approach towards investigation.
(vi) Delayed reaching to the scene of crime.
(vii) Transfer and change of investigating officers during investigations.
(viii) Investigating agencies being ill equipped.
(ix) Non-accountability of I.Os. in the event of losing the case.

Parbhu v. King Emperor AIR 1944 PC 73

The Court had ruled that irregularities and illegalities in the arrest would not change the
culpability of the offence if they were proven by convincing evidence; however, in the case at
hand, such irregularities should be treated with deference because the investigating authorities
are accountable for suppressing facts. In this case the accused challenged it’s conviction by the
High Court where he was convicted of the murder of his uncle on a running train.
Kamalaveni vs inspector of police Crl.O.P.(MD).No.13628 of 2010 & M.P.(MD).No. 1 of 2010
The grievance of the petitioners is that the respondent police have been harassing them under the
guise of an enquiry/investigation and hence, has invoked the inherent powers of this Court under
Section 482 of Cr.P.C. An enquiry into a non cognizable offence or a cognizable offence is the
unfettered powers of the Investigation Officers. The Coiurt here observed that the Court,
exercising its power under Section 482 of the Criminal Procedure Code normally would not
interfere with the investigation conducted by a police officer. Nevertheless, it would also not turn
a blind eye to instances of harassment by the police under the guise of investigation is brought to
its notice. The police officer shall refrain himself or herself from harassing persons called upon
for enquiry/investigation.
Bimal Kumar Kundu and Sudip Ghosh Vs State of West Bengal 2005 (1) CHN 548
It would not be right in acquitting an accused person solely on account of the defect; to do so
would tantamount to playing into the hands of the Investigating Officer if the investigation is
designedly defective. the Court finds that there were defects in investigation, the Court may
direct further investigation and the power of the Court in this respect cannot be curtailed.
Therefore, there is no ground at all for any modification of the order.
R.P. Kapur Vs. State of Punjab AIR 1960 SC 866
In the present case , the Court emphasized on the role of investigation officer-
“The Investigating Officer's job is to uncover the true, unadulterated truth rather than support the
prosecution's case with information that would help the court find the defendant guilty. To reveal
the truth of the case before the court of competent jurisdiction must be the exclusive focus of a
fair investigation. Investigative authorities are defenders of the rights of defenseless people. As a
result, they bear a great responsibility for ensuring that innocent people are not accused of
something they have not done.”
Amar Singh vs Balwinder Singh 2003 (2) SCC 518
The incident took place at 7.00 p.m. on 23.5.1987 but the FIR was recorded at 9.20 p.m. on
24.5.1987. There was a delay of 26 hours in sending the Special Report. The details about the
occurrence were not mentioned in the inquest report. The concerned Police Inspector, did not
take into possession the wire gauze of the window of the Baithak of Gurdial Singh from where
accused is alleged to have fired his gun. The investigating officer did not send the fire arms and
the empties recovered from the spot for comparison to the Forensic Science Laboratory. Further,
in the Daily Diary Register (DDR), the names of the witnesses, weapons of offence and the place
of occurrence were not mentioned. The Court here held that a Court must use caution when
assessing the evidence in cases involving flawed investigations. But if the investigation is
purposefully flawed, acquitting an accused individual solely on the basis of the flaw would be
wrong and would serve the investigating officer's interests.
Manu Sharma vs. State (State NCT of Delhi)
In the said case the procedure of fair investigation was laid down in detail by the Honourable
Supreme court -
That the appellate Court has all the necessary powers to re-

 evaluate the evidence let in before the trial Court as well as the conclusions reached. It
has a duty to specify the compelling and substantial reasons in case it reverses the order
of acquittal passed by the trial Court. In the case on hand, the High Court by adhering to
all the ingredients and by giving cogent and adequate reasons reversed the order of
acquittal.
 Phone calls made immediately after an incident to the police constitutes an FIR only
when they are not vague and cryptic. Calls purely for the reason of getting the police to
the scene of crime do not necessarily constitute the FIR. In the present case, the phone
calls were vague and therefore could not be registered as the FIR. The FIR was properly
lodged as per the statement of Shyan Munshi, one of the prosecution witnesses.
 Delay in recording the statement of the witnesses do not necessarily discredit their
testimonies. The court may rely on such testimonies if they are cogent and credible.
  The evidence regarding the actual incident, the testimonies of witnesses, the evidence
connecting the vehicles and cartridges to the accused - Manu Sharma, as well as his
conduct after the incident prove his guilt beyond reasonable doubt.
 No prejudice had been caused to the right of the accused to fair trial and non-furnishing
of the copy of one of the ballistic reports had not hampered the ends of justice. The right
of the accused to disclosure has not received any set back in the facts and circumstances
of the case.
 The public prosecutor is under a duty of disclosure under the Cr.P.C., Bar Council Rules
and relevant principles of common law. Nevertheless, a violation of this duty does not
necessarily vitiate the entire trial. A trial would only be vitiated if non-disclosure amounts
to a material irregularity and causes irreversible prejudice to the accused. In the present
case, no such prejudice was caused to the accused, and therefore the trial is not vitiated.

Karnel Singh vs. The State of Madhya Pradesh 1995 SCC (5) 518
In this case, a lady laborer was raped by accused. The two independent witnesses were not
examined, whom she narrated the incident soon after the occurance. Recovery of Chaddhi with
semen stains of accused was not proved. We have very carefully scrutinized the evidence having
regard to the fact that (PW6) the investigation officer had not taken the care expected of him. He
did not record the statements of the two witnesses nor did he refer to the attachment of the
`Chaddi' in his oral evidence. That was a very vital piece of evidence to which little or no
attention was paid. If the seizure of that article was properly proved, the article with semen stains
would have lent strong corroboration to the evidence of the prosecutrix. There is no doubt that
the investigation was casual and defective. In cases of defective investigation, the court has to be
circumspect in evaluating the evidence but it would not be right in acquitting an accused person
solely on account of the defect; to do so would tantamount to playing into the hands of the
investigating officer if the investigation is designedly defective. Any investigating officer, in
fairness to the prosecutrix as well as the accused, would have recorded the statements of the two
witnesses and would have drawn up a proper seizure-memo in regard to the `Chaddi'.
Paramjit Singh vs. State of Punjab AIR 2008 SC 441
The Court is duty-bound to strike a balance between the individual's right to personal freedom
and the right of investigation of the police. While exercising utmost restraint, the Court can
impose conditions countenancing its object as permissible under the law to ensure an
uninterrupted and unhampered investigation.
Paras Yadav And Ors vs State Of Bihar 1999 (2) SCC 126
The next case talks about defective investigation in the manner that deceased stated before the
witnesses and the Police Sub-Inspector that he was surrounded by Tulsi, Satan, Munshi and
Paras and thereafter Paras stabbed him on abdomen. Investigating Officer or the Doctor did not
record dying declaration of the deceased. The Doctor was also not examined to establish that the
deceased was conscious and in a fit condition to make the statement.
Ram Gulam Chowdhary vs. State of Bihar, 2001(2) JIC 986 (SC)
It was a criminal trial u/s. 302/149, 201 IPC. Place of occurrence was varandah of the deceased.
Lanterns (two) were said to be kept and lighting on the varandah near the place of occurrence.
Mother, sister and neighbourer of the deceased, being eye witnesses, h ad deposed during trial to
have identified the accused persons in such poor light. Accused were convicted by the trial court.
Argument of the accused/appellants before Supreme Court was that the two lanterns said to be
kept on the varandah (place of occurrence) were neither seized nor produced before the court and
even if it is supposed that the lanterns were there on the floor of the varandah, the lanterns could
cast their light near the floor and, therefore, it was not possible for the eye witnesses to have
identified the accused persons in such poor light even if the place of occurrence was varandah or
courtyard. The Supreme Court rejected the argument and held “as the incident took place in
village and the visibility of villagers are conditioned to such lights and it would be quite possible
for the eye witnesses to identify men and matters in such light.”
Gulab Singh vs. State of U.P., 2003(4) ACC 161
This case was a murder trial. The victim had himself signed the FIR, made statements u/s. 161
Cr.P.C. and died on way from police station to hospital. Occurrence had taken place at about
8.00 to 9.00 p.m. in the night. Victim and the witnesses had recognized the accused even in the
night. Accused had challenged the deceased with insulting utterances before firing at him. The
victim and the eye witnesses who were present at about 8 to 10 steps away from the place of
occurrence, had, therefore, full opportunity to identify the accused. Conviction of the accused
was upheld.
In the case of State of Punjab vs. Hakam Singh, (2005) 7 SCC 408, it was observed that in these
cases where the witnesses to any incident of offences are illiterate, semi-literate, rustic, villagers
or female witnesses from rural areas, the investigating officers should exercise a little more
caution in recording their statements u/s. 161 Cr.P.C. as such witnesses because of their illiteracy
and non-exposure etc.
In the instant case, Mahesh vs. State of Maharashtra, (2009) 3 SCC (Criminal) 543 it was held
that where punch witnesses used to reside near the police colony and had appeared as punch
from the year 1978 to 1981, it has been held that simply because such witnesses had appeared as
punch witnesses in other cases also, it cannot be concluded that they are habitual punch
witnesses and had blindly signed the punchnama.
In the case of Ankush Maruti Shinde Vs. State of Maharashtra, AIR 2019 SC 1457 serious
observations were given regarding Test Identification Parade Serious lapse on the part of the
investigating agency which affects fair investigation and fair trial amounts to violation of
fundamental rights of the accused guaranteed under Articles 20 and 21 of the Constitution of
India. In this case, TIP was conducted by the Special Executive Magistrate after 33 days after
arrest of the accused persons and 50 days after commission of the offence. The eye witnesses had
though identified the accused persons during trial in the court but had not given particular
descriptions of the accused persons during the TIP and the said delay in conducting the TIP was
also not explained by the prosecution. The dummy persons to identify the accused persons
during the TIP were selected by the police though they were required to be selected by the
Special Executive Magistrate. In this case of rape, murder and dacoity, the DNA report and the
finger prints report did not support the prosecution story and there was no availability of
sufficient light on the spot of the incident. However, in other cases, it was held that Test
Identification Parade is not a right of the accused under the provisions of the Identification of
Prisoners Act, 1920. Investigating Agency is not obliged to hold TIP. Question of identification
arises where accused is not known to the witness and also TIP is not considered as substantive
evidence. Court can accept evidence of identification of the accused without insisting on
corroboration.
De novo Investigation/ Power to order reinvestigation (CD Pharma India Private Limited v.
State of NCT of Delhi & Ors. [W.P. (CRL) 999/2020 & Crl. M.A. No. 8526/2020)

The writ petition was filed on the grounds that the Investigating Officer and other officials
perverted the legal system in order to shield an accused due to the undue influence of the
accused's advocate. It is said that the advocate met with the police officers in charge of the
investigation during his journey to India and was given direct access to the whole case file during
the proceedings in Switzerland against the accused for money laundering. He absolutely declared
that he personally reviewed the case file, which contained information about the accused's
accusers and witnesses, as well as witness identities and statements. This, according to the
petitioner's knowledgeable advocate, is categorically unlawful and forbidden by Section 172 of
the CrPC and as a result, the inquiry was damaged. It was pleaded that the court ordered the
transfer of the inquiry from the Delhi Police to the CBI/Crime Branch because it was clear that
the accused and the State apparatus were connected on a deep level. It was further asserted that
despite their being a FIR against the primary culprit, he was never summoned.
Although on the merits there was no genuine dispute before the court, the learned counsel for the
respondent stated that the argument of the petitioner is based on the fact that he also had access
to the case diary and had prior knowledge of the closure of this case. As claimed by the
petitioner, the inquiry was finished long before the said advocate got access, according to the
counsel.
The High Court stated that “The power to order reinvestigation or transfer of
investigation needs to be exercised judiciously and not at the mere asking. It can be
ordered only if the conscious of the Court is shaken to the standard of investigation” . The
High Court said the power of de-novo investigation needed to be exercised in rare and
exceptional cases in order to do justice, where the investigation lacked credibility.  
When the insignificant technical defects do not affect or prejudice the outcome, then the convict/
accused cannot defend on the ground that there were defects in the charges. So, in few cases the
defective charge necessarily fatal to convictions, and sometime its presence does not affect. The
purpose of the investigation is to explore in detail the allegations, to examine the evidence in
depth, and to determine specifically whether academic research misconduct has been committed,
and if so, the responsible person and the seriousness of the misconduct. If the investigation is
defective, the prosecution is lethargic, if there is scanty evidence, if witnesses turn hostile,
whether the court is left with any other option except to give accused the benefit of doubt. The
law requires proof beyond any reasonable doubt. The shortcomings, loopholes and weaknesses
that are left behind by the investigating agencies in the investigation of crimes do make the case
set-up by the prosecution in the court is ultimately found on weak footings and the perpetrators
of the crimes stand benefited in terms of getting scot-free of their liability. Eventually the
sufferer of such weak and defective investigations are not only the victims of the offence or their
dependents but society as a whole is the ultimate sufferer of the same.
As seen from the above cases the constitutional Courts in order to ensure the fair trial and find
the truth has power to direct the re investigation or de novo investigation. Apart from this power
of constitutional courts for direction of re investigation there are some other ways to rectify the
defects of the investigation like the prosecutor in charge of the Case may invoke certain
provision of law to produce the evidence viz., filing petitions under section 311 , 242(3), 319,
216 CRPC before the Court to fill the intentional or mistakes of the investigator in any case.