DEFECTIVE

INVESTIGATION
Prof. S P SRIVASTAVA
National Judicial Academy
Amitbhai Anilchandra Shah v.
CBI, (2013) 6 SCC 348

An investigator is the
kingpin of criminal justice
delivery system.
Nirmal Singh Kahlon vs State
Of Punjab & Ors (2009) 1 SCC
441
 An accused is entitled to a Fair
Investigation.
 Fair investigation and fair trial are
concomitant to preservation of
fundamental right of an accused
under Article 21 of the Constitution
of India.
 A victim of a crime, is equally
entitled to a fair investigation.
 The term `investigation' has been
defined in Section 2(h) of the Code to
include all the proceedings under the
Code for collection of evidence
conducted by a police officer or by
any person (other than a Magistrate)
who is authorized by a Magistrate in
this behalf.
R.P. Kapur Vs. State of
Punjab AIR 1960 SC 866
 The Investigating Officer "is not to bolster up a
prosecution case with such evidence as may
enable the court to record conviction but to bring
out the real unvarnished truth.
 The entire emphasis on a fair investigation has to
be to bring out the truth of the case before the
court of competent jurisdiction
 Investigating agencies are guardians of the liberty
of innocent citizens. Therefore, a heavy
responsibility devolves on them of seeing that
innocent persons are not charged on an
irresponsible and false implication.
State of Bihar Vs. P.P. Sharma
AIR 1991 SC 1260
 "Investigation is a delicate painstaking and dextrous
process. Ethical conduct is absolutely essential for
investigative professionalism.
 The investigator must be alive to the mandate of Article
21 and is not empowered to trample upon the personal
liberty arbitrarily..... 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.“
 High responsibility lies upon the investigating agency
not to conduct an investigation in tainted and unfair
manner. The investigation should not prima facie be
indicative of a biased mind and every effort should be
made to bring the guilty to law.
Babubhai vs State Of
Gujarat (2010) 12 SCC 254
 Fair investigation is part of constitutional guarantee
under Article 20 and 21 of the Constitution and it is
minimum requirement of Rule Of Law.
 Investigation must be fair, transparent and judicious and
free from objectionable features like bias, ulterior
motive or other similar infirmities .
 It is 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 any possibility of fabrication of evidence
and his impartial conduct must dispel any suspicion as
to its genuineness.
Causes and effect of
Defective Investigation
 Defective or improper investigation may
result from the acts of omission and/or
commission, deliberate or otherwise, of
the Investigating Officer or other material
witnesses, who are obliged to perform
certain duties in discharge of their
functions
 Defective investigation per se cannot be
a ground to declare the innocence of an
accused.
Vinay Tyagi vs Irshad Ali @
Deepak (2013) (5) SCC 762

 Fair and Proper Investigation’ in

‘
criminal jurisprudence has twin
purpose.
 Firstly, the investigation must be
unbiased, honest, just and in
accordance with law.
 Secondly, the entire emphasis on a
fair investigation has to be to bring
out the truth of the case before the
court of competent jurisdiction
CBI vs Rajesh Gandhi
(1996) 11 SCC 253
 No one can insist that an offence be
investigated by a particular agency.
 An aggrieved person can only claim that
the alleged offence be investigated fairly
and properly.
 Accused has no right with reference to
the manner of investigation
Union of India vs. Prakash P.
Hinduja 2003 (6) SCC 195
 Thus the legal position is absolutely clear
and also settled by judicial authorities
that the Court would not interfere with
the investigation or during the course of
investigation which would mean from the
time of the lodging of the First
Information Report till the submission of
the report by the officer in charge of
police station in court under Section
173(2) Cr.P.C., this field being exclusively
reserved for the investigating agency.
Zahira Habibullah Sheikh vs
State 2004(3) Supreme 210
 In the case of a defective investigation the Court has to
be circumspect in evaluating the evidence and may
have to adopt an active and analytical role to ensure
that truth is found by having recourse to Section 311 or
at a later stage also resorting to Section 391 instead of
throwing hands in the air in despair.
 If the investigation was faulty, it was not the fault of
the victims or the witnesses.
 Those who are responsible for protecting life and
properties and ensuring that investigation is fair and
proper seem to have shown no real anxiety. Large
number of people had lost their lives. Whether the
accused persons were really assailants or not could have
been established by a fair and impartial investigation.
Manu Sharma Vs. State (NCT
of Delhi) (2010) 6 SCC 1
 In our jurisprudence an accused is
presumed to be innocent till proved
guilty, the alleged accused is
entitled to fairness and true
investigation and fair trial and the
prosecution is expected to play
balanced role in the trial of a
crime. The investigation should be
judicious, fair, transparent and
expeditious to ensure compliance
with the basic rule of law.
 Photograph of the appellant were shown to
witnesses and he was paraded before them.
 Identification of accused in court was of no avail
to the prosecution as it was not preceded by TI
parade.
 Identification by photographs was illegal and of no
consequence.
 Alleged FIR by Shyan Munshi PW2 was not an FIR
but a signed statement to IO and hence hit by
section 162 of Cr PC
 Ballistic Experts concurred that empty cartridges
had been fired from two different weapons and
their Report supported the statement-in-chief of
Shyan Munshi PW-2
 PW-1’s name was not in the list of invitees, his
statement was recorded quite belatedly which
shows that he was not present in the party and he
was planted by the prosecution.
Dhanaj Singh @ Shera vs
State 2004 SCC (Cri) 851.
 Deceased was attacked and murdered by
accused persons when he was ploughing
his field with complaint and his nephew.
 Incident occurred at 11.00am
 FIR on same day at 4.30 pm
 Motive was old enmity.
 Police charge sheeted complainant who
was acquitted after trial.
 Case against accused person proceeded
on complaint filed by complainant.
 Evidence of pw1 and pw2 was highly tainted and
conviction could not be based on it.
 Pellets recovered from the body of deceased were
not sent to ballistic experts for reports.
 Pellets, wads and cartridges were not recovered
from the spot.
 No foot prints were found.
 Guns allegedly used were not sent for ballistic
examination.
 Blood stained earth was not sent for chemical
examination.
 Police had found that complaint was guilty of
murder.
 Recovery of gun was of no avail as it was not sent
to ballistic expert for report.
 In the case of a 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.
 Even if the investigation is defective, in view of
the legal principles set out above, that pales into
insignificance when ocular testimony is found
credible and cogent.
 Effect of non-examination of weapons of assault or
the pellets etc. in the background of defective
investigation is of no significance as there is no
crack in the evidence of the vital witnesses.
Amar Singh vs Balwinder
Singh 2003 (2) SCC 518

 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
 Delay of 26 hours in sending the
Special Report.
 Details about the occurrence were
not mentioned in the inquest
report.
 Police Inspector, did not take into possession the
wire gauze of the window of the Baithak of
Gurdial Singh from where A-1 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
 in the Daily Diary Register (DDR), the names of
the witnesses, weapons of offence and the
place of occurrence were not mentioned.
 In the case of a 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.
 It would have been certainly better if the
fire arms were sent to the forensic test
laboratory for comparison. But the report
of the ballistic expert would be in the
nature of an expert opinion without any
conclusiveness attached to it.
Ram Bihari Yadav vs State
Of Bihar 1998 (4) SCC 517
 Prosecution has to prove the case against the
accused in the manner stated by it and that
any act or omission on the part of the
prosecution giving rise to any reasonable
doubt would go in favour of the accused.
 The story of the prosecution will have to be
examined de hors such omissions and
contaminated conduct of the officials
otherwise the mischief which was deliberately
done would be perpetuated and justice would
be denied to the complainant party and this
would obviously shake the confidence of the
people not merely in the law enforcing agency
but also in the administration of justice.
Paras Yadav And Ors vs State
Of Bihar 1999 (2) SCC 126
 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.
Karnel Singh vs The State
Of M.P 1995 SCC (5) 518
 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.
continued..
 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'.
 C. Muniappan vs State Of
Tamil Nadu (2010) 9 SCC 567

 The case of the prosecution had been

inherently improbable

 The inquest reports were not consistent

with the charge-sheets.

 Identification on 22.2.2000 had been

concluded within a short span of 2 hours and
25 minutes. Eighteen witnesses were there,
having three rounds each. Therefore, one
round was completed in three minutes, i.e.,
the Test Identification Parade was conducted
in full haste and thus, could not be treated
to be a proper identification.
 The occurrence was so ugly and awful that the
I.Os. had conducted the investigation under great
anxiety and tension. The seizure memos were also
prepared in the same state of affairs. Therefore,
when the investigation had been conducted in
such a charged atmosphere, some irregularities
were bound to occur.

 There may be highly defective investigation in a

case. However, it is to be examined as to whether
there is any lapse by the I.O. and whether due to
such lapse any benefit should be given to the
accused.
 Where there has been negligence on the part of
the investigating agency or omissions, etc. which
resulted in defective investigation, there is a legal
obligation on the part of the court to examine the
prosecution evidence de hors such lapses,
carefully, to find out whether the said evidence is
reliable or not and to what extent it is reliable
and as to whether such lapses affected the object
of finding out the truth. Therefore, the
investigation is not the solitary area for judicial
scrutiny in a criminal trial. The conclusion of the
trial in the case cannot be allowed to depend
solely on the probity of investigation.
Dayal Singh & Ors vs State Of
Uttaranchal (2012) 8 SCC 263
 IO noted three injuries on the body
of deceased and noted in inquest
report that death was caused
because of these injuries.
 In post mortem report doctor did
not find any external or internal
injury.
 Viscera was preserved and handed
over to police but never sent to FSL
continued
 The presence of PW2, PW4 and PW5 at the place
of occurrence was in the normal course of
business and cannot be doubted. Their
statements are reliable, cogent and consistent
with the story of the prosecution. Merely
because PW3 (Doctor) and PW6 (IO) have failed
to perform their duties in accordance with the
requirements of law, and there has been some
defect in the investigation, it will not be to the
benefit of the accused persons to the extent
that they would be entitled to an order of
acquittal on this ground.
Continued..
 Now, we may advert to the duty of the Court in
such cases. it is well settled that if the police
records become suspect and investigation
perfunctory, it becomes the duty of the Court to
see if the evidence given in Court should be
relied upon and such lapses ignored. If the
investigation is designedly defective, 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.”
Rajiv Singh vs State of Bihar
2015(13) SCALE901.

 The couple was returning after honey moon trip to

Patna by Capital Express train.
 The husband woke up at 5 am to find that her wife was
not there. He searched her in the compartment, came
up to Patna and ultimately lodged Fir at GRP Mokamah
u/s 365 IPC suspecting kidnapping.
 Dead body of unidentified lady was recovered in Azad
Nagar near railway track.
 DNA Test confirmed that the dead body was that of the
wife of accused husband Archana.
 Viscera test revealed that she was poisoned.
continued..
 DNA report was proved by Dr. Shyam Bahadur Upadhyay
(PW10), Director In-charge, FSL, Patna. Significantly,
though in terms of Section 293 Cr.P.C. the report being
one from the government scientific expert, the same
could have been per se used as evidence in the trial,
the prosecution had voluntarily offered this witness to
prove the same.
 The report did not disclose any scientific data on which
the conclusion was based.
 samples were not analyzed at the laboratory of FSL,
Patna but had been forwarded to a private laboratory
i.e. Lab India.
 PW 10 was not an expert in DNA test nor the test was
conducted in his presence.
 A technician had gone with the sample to the private
lab and supervise the testing.Technician was not
examined by prosecution.
 The samples were not accompanied by the
authentication card for DNA test as was necessary.
 Blood samples of parents were directly sent to FSL>
 Sakiri Vasu v. State of Uttar
Pradesh [(2008) 2 SCC 409]
 Section 156 (3) states:
Any Magistrate empowered under Section 190 may
order such an investigation as abovementioned
(investigation by the officer in charge of the Police
Station.
 Section 156(3) provides:

Check by the Magistrate on the police performing its

duties. In case the Magistrate finds that the police
has not done its duty of investigating the case at all,
or has not done it satisfactorily, he can issue a
direction to the police to do the investigation
properly, and can monitor the same.
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