TMI Blog2015 (8) TMI 1449X X X X Extracts X X X X X X X X Extracts X X X X ..... 0/- except for special and adequate reasons - Similarly, Section 174 deals with the obstructing the running of a train for the said offence. For the said offence a maximum punishment of 2 years has been prescribed. Under Section 179 of the Railways Act, 1989, for the offences as mentioned above, an authorised officer can arrest a person concerned even without warrant. Though the learned counsel appearing for the petitioners submitted that there is an element of bias, this Court, on facts, does not find the submission warranting acceptance. Admittedly, the respondent, who gave the complaint, is the authorised officer, who did the investigation. He merely received the statements from the officials and filed the complaint. He is not an eye witness to the occurrence alleged. The earlier complaint was closed only for the offence under Section 151 Cr.P.C. Therefore, this court does not find any double jeopardy or bias, more so, when the power is available to the respondent to initiate action. However, this Court finds considerable force in the other submission made. The authorised officer merely recorded the statement of few railway officials. What was required was an inquiry into ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er of the mind. It is the womb of injustice. When an apparent bias transforms itself into a womb of injustice then, it has to be struck down by the Courts. 6. Bias can be divided into three parts. They are: (i) Pecuniary Bias (ii) Personal Bias and (iii) Official Bias. 7. We are primarily concerned with personal and official bias. Bias may also occur by a combination of these two. When an authority, plays a role being predominant in nature, cannot thereafter take a different role leading to a positive or potential conflict with the earlier one. This mixture of two roles would create either likelihood of bias or reasonable apprehension of bias. The source of the potential bias has to be a personal interest for it to be potentially objectionable in law. 8. The Courts have evolved the principles governing bias i.e., real likelihood of bias test and reasonable suspicion test. For the real likelihood of bias test, the paramount consideration is from the point of view of a fair minded informed observer. Insofar as the reasonable suspicion test is concerned, the test is from the point of view of a reasonable common mind. Though the Courts have evolved these two principle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... very little difference between a real likelihood and a reasonable suspicion of bias in practice. It is ultimately for the Courts to decide that there exists a bias or not. After all, the test of likelihood or reasonable suspicion is a mere instrument in identifying an element of bias. 10. Coming to an official bias, it can transform into legal malice at times but not in every case. To decide as to whether there exists a likelihood or reasonable suspicion of bias, the test shall not be unacceptably high considering the concept and proof of bias. 11. An apparent bias can be identified with the relative ease in pecuniary and personal as against official. Deciphering an official bias is an arduous job for a Court. That is the reason why the tests of likelihood or reasonable suspicion of bias is required to be used. 12. In P.D.Dinakaran v. Hon'ble Judges Inquiry Committee ((2011) 8 MLJ 331 (SC), the Apex Court after considering the judgments of the foreign Courts as well as our High Courts summed up the principles of bias by applying the test of real likelihood from the point of fair minded informed observer. The following paragraph would be apposite: 71. The principle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entality of a State and its officials must conform to the Rule of Law leading to fairness in action. It has been well established that fairness is a facet of Article 21 of the Constitution of India. Such a fairness in action is also mandatorily to be followed in a criminal investigation. A right to a fair investigation is not only a constitutional right but a natural right as well. In Sathyavani Ponrani v. Samuel Raj, 2010 (4) CTC 833, while dealing with fair investigation, this Court has held that the same is mandatory under Articles 14, 21 and 39 of the Constitution of India. The following paragraphs would be apposite: 66.Free and Fair Investigation and Trial is enshrined in Article 14, 21 and 39-A of the Constitution of India. It is the duty of the state to ensure that every citizen of the country should have the free and fair investigation and trial. The preamble and the constitution are compulsive and not facultative, in that free access to the form of justice is integral to the core right to equality, regarded as a basic feature of our Constitution. Therefore such a right is a constitutional right as well as a fundamental right. Such a right cannot be confined only to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ness is infringed or there is a threat to his liberty. Access to justice is a human right. 38. In Dwarka Prasad Agarwal v. B.D. Agarwal [(2003) 6 SCC 230] this Court opined: (SCC pp.245-46, para 38) A party cannot be made to suffer adversely either indirectly or directly by reason of an order passed by any court of law which is not binding on him. The very basis upon which a judicial process can be resorted to is reasonableness and fairness in a trial. Under our Constitution as also the international treaties and conventions, the right to get a fair trial is a basic fundamental/human right. Any procedure which comes in the way of a party in getting a fair trial would be violative of Article 14 of the Constitution of India. Right to a fair trial by an independent and impartial tribunal is part of Article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, 1950 [see Clark (Procurator Fiscal, Kirkcaldy) v. Kelly [(2003) 1 All ER 1106(PC)]. 69.In NIRMAL SINGH KAHLON v. STATE OF PUNJAB [(2009) 1 SCC 441], the Hon'ble Apex Court was pleased to observe that the right to fair investigation and trial is applicable to the accused as well a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uitted as a matter of course (See Dayal Singh v. State of Uttaranchal, (2012) 8 SCC 263, State of Gujarat v. R.A. Mehta, (2013) 1 MLJ 362 (SC) and Hem Raj v. State of Haryana, (2014) 2 Supreme Court Cases 395. Investigator's Bias: 20. An investigator is the kingpin of criminal justice delivery system. (See Amitbhai Anilchandra Shah v. CBI, (2013) 6 Supreme Court Cases 348). 21. A bias attributed on the part of the investigator may lead to a deception leading to injustice. A duty is imposed upon the investigator to give an impression that it has been done without an element of unfairness or ulterior motive. He must dispel a possible suspicion to the genuineness of the investigation done. An attempt of an investigation officer is to make a genuine endeavour to bring out the truth. 22. Considering the same, the Apex Court in Babubhai v. State of Gujarat ((2010) 12 Supreme Court Cases 254) has held as follows: 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 du ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proceed to investigate the case. In this connection, it has to be noted that Section 154 Cr.P.C. deals with only an informant. In a case registered under Section 151 of the Cr.P.C. , it is only the State, which assumes the role of a prosecutor. Thus, Section 154(2) of the Cr.P.C., provides for giving a copy of the information to the informant alone and not to the complainant . A complaint as defined under Section 2(d) of the Cr.P.C., is to be given to the Magistrate and on receipt of the same, he/she would be examined by the Court under Section 200 Cr.P.C., in a complaint case. Thus, the words informant and the complainant are not interchangeable. The following paragraph in Ganesha V. Sharanappa and another ((2014) 1 Supreme Court Cases 87) would be appropriate. Before we part with the case, we may observe a common error creeping in many of the judgments including the present one. No distinction is made while using the words informant and complainant . In many of the judgments, the person giving the report under Section 154 of the Code is described as the complainant or the de facto complainant instead of informant , assuming that the State is the complainant. These are not wor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w, let us analyse the decision rendered by the Apex Court in this regard. In Bhagwan Singh v. State of Rajasthan, (1976) 1 Supreme Court Cases 15, the allegation was an offer of bribe made. The officer who made the allegation himself took the task of investigation. Therefore, the Apex Court rightly held that on the principle governing bias and fairness in action, the investigation cannot be given the approval of the Court. Similarly in Megha Singh v. State of Haryana, (1996) 11 Supreme Court Cases 709, P.W.3 intercepted the accused and recovered arms and thereafter, registered the case and proceeded with the investigation. As admitted, he was the person who apprehended the accused and registered and investigated the case and there was no other independent witness examined except the evidence of P.Ws.2 and 3. The Apex Court rightly held that the complainant should not have proceeded with the investigation, as it impinges upon the impartial investigation. Incidentally, P.W.2 also accompanied P.W.3, being a Police Officer. In State v. V.Jayapaul, (2004) 5 Supreme Court Cases 223, the facts are to the effect that the F.I.R. was registered based upon the information received. Thereafter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and an officer receiving information, registering the case and then proceeding further. 29. In S.Jeevanantham v. State, (2004) 5 Supreme Court Cases 230, again the Apex Court has gone into these cases discussed supra. Even in that case an information was received, thereafter, it was recorded and in pursuant to the same, P.W.8 seized the contraband articles and went through with the investigation. The Apex Court rightly held that there is no element of bias involved. 30. In Bhaskar Ramappa Madar v. State of Karnataka, (2009) 11 Supreme Court Cases 690, again the Apex Court was pleased to distinguish the earlier decision and held that merely because the case is registered by P.W.17 on the information given by A1, who lodged the report, it cannot be stated that the investigation is biased. 31. In State v. N.S.Gnaneswaran, (2013) 1 MLJ (Crl) 294 (SC), the Apex Court dealt with the case in which an F.I.R. was registered based upon an information. Accordingly, no bias was found. 32. Considering the above, this Court is of the considered view that there is no conflict of views in the above said pronouncements, as in the subsequent pronouncements, the earlier decisions have bee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mentioned above, an authorised officer can arrest a person concerned even without warrant. He may also make an inquiry into the commission of offence mentioned under Section 179(2). Thereafter, he may file a complaint to the competent Court, if an offence is said to have been committed. Section 180-B deals with the powers of officer authorised to inquire. Accordingly, while making inquiry an authorised officer had the following powers: (i) summon and enforce the attendance of any person and record his statement; (ii) require the discovery and production of any document; (iii) requisition any public record or copy thereof from any office, authority or person; (iv) enter and search any premises or person and seize any property or document which may be relevant to the subject matter of the inquiry. Though the learned counsel appearing for the petitioners submitted that there is an element of bias, this Court, on facts, does not find the submission warranting acceptance. Admittedly, the respondent, who gave the complaint, is the authorised officer, who did the investigation. He merely received the statements from the officials and filed the complaint. He is not an ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
