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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

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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

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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

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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.

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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.