Non-examination of Investigating Officer : How much Fatal for Prosecution

22 September, 2023

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“Non- examination of Investigating Officer creates a material lacuna in the effort of the prosecution to nail the appellants, thereby creating reasonable doubt in the prosecution case…” It was held by the Supreme Court in a recent judgment, Munna Lal vs. the State of Uttar Pradesh, delivered on January 24, 2023. The practice of non-examining investigating officers has sparked debates and controversies within the legal community. In a criminal trial, the non-examination of the Investigating Officer is a serious lapse on the part of the prosecution agency; therefore, it is essential to understand the consequences of the non-examination of the Investigating Officer. In this article, a brief discussion is made on investigation in a criminal case, the role and duty of the investigating officer, and certain cases that reflect upon the consequences of the non-examination of the Investigating Officer.

Investigation

An investigation is a systematic and organized process of gathering information, evidence, and facts to uncover the truth or establish the circumstances surrounding a specific event or situation. It involves the diligent examination, analysis, and evaluation of available resources and sources to discover relevant details and establish a comprehensive understanding of the matter at hand. Investigations can be conducted by law enforcement agencies, private investigators, or other professionals with the aim of solving crimes, resolving disputes, uncovering misconduct, or obtaining information for decision-making purposes. The process typically involves various techniques such as interviews, research, surveillance, and forensic analysis to uncover the truth and provide a basis for further action or resolution. Investigations are conducted only by those police officers or any other professionals who have been assigned the case. In order to conduct the investigation, the Magistrate has the power to authorize any other person to investigate the case on his behalf. The investigating officer has to maintain a ‘Case Diary’ which includes detailed information about what was observed throughout the investigation as well as it includes the starting and closing time of the investigation. After the registration of FIR, the line of investigation is decided in relation to the case that is whether there is eyewitness or any circumstantial evidence.

Eyewitness: One who has seen the occurrence of an incident.
Circumstantial evidence: Something that connects various circumstances to the crime such as previous animosity, threats, and last seen theory.

At different stages of investigation, three types of reports are to be prepared that are listed as follows:

A preliminary report is to be submitted to the Magistrate from the officer-in-charge of a police station, as mentioned in Section 157 of CrPC.
An investigation report is to be submitted from the subordinate officer to the officer-in-charge of the police station, as mentioned in Section 168 of CrPC.
A final report is to be submitted to the Magistrate after the completion of the investigation, under Section 173 of CrPC.

Investigation in criminal case

Overall investigation in a criminal case is similar to the investigation of any other case but the main point to consider is fast and timely investigation. In criminal cases, fast investigation is crucial as it helps ensure the timely delivery of justice by promptly identifying and apprehending the perpetrators. Swift investigations prevent the accused from evading capture or engaging in further criminal activities. Additionally, fast investigations increase the chances of preserving crucial evidence, reducing the risk of loss or tampering. They also minimize the emotional and psychological distress experienced by victims and their families, promoting a sense of security and closure. Timely investigations also prevent delays in the legal process, reduce case backlogs, and uphold public trust in the criminal justice system by demonstrating its efficiency and effectiveness.

The investigation is a primary procedure that starts from the cognizance of the offence to the report filing before the Magistrate under Section 173. Various parameters of the police investigation are highlighted by the Supreme Court of India which are listed as follows:

On-scene investigation of the crime.
The facts and circumstances of the case.
Finding and arresting the suspected offenders.
Searching and collecting evidence related to crime.
Interrogating various people regarding the case.

After the trial concludes and the Court finds evidence that the guilty committed the offense, the guilty will be convicted.

Role and Duty of Investigating Officer

The role and duties of an investigation officer can vary depending on the jurisdiction and nature of the case being investigated. However, in general, an investigation officer, also known as a detective or investigator, is responsible for conducting inquiries, gathering evidence, and building a case against individuals or organizations suspected of committing a crime. In the Jamuna Chaudhary vs. State of Bihar case, the Supreme Court held that “The duty of the Investigating Officers is not merely to bolster up a prosecution case with such evidence as may enable the Court to record a conviction but to bring out the real unvarnished truth.” Here are some common roles and duties of an investigation officer:

Crime scene management: The officer is responsible for securing and preserving the crime scene to prevent contamination or tampering of evidence. They ensure that the scene is properly documented, photographed, and searched for potential clues.
Gathering information and evidence: The officer collects information related to the case by conducting interviews with witnesses, victims, and suspects as well as reviewing records, documents, or surveillance footage to gather additional evidence. They also identify, collect, and preserve physical evidence found at the crime scene. This can include fingerprints, DNA samples, weapons, or other objects that may be relevant to the investigation. The officer ensures that the evidence is properly documented, packaged, and submitted for forensic analysis.
Analyzing evidence: The officer analyzes the collected evidence and attempts to establish connections or patterns that may help solve the case. They may collaborate with forensic experts or specialists to interpret complex evidence such as DNA analysis, ballistics, or digital forensics.
Interviewing and interrogation: The officer conducts interviews and interrogations of suspects, witnesses, or persons of interest. They use effective questioning techniques to elicit information and assess the credibility of the individuals involved.
Case documentation: The officer maintains detailed and accurate records of the investigation, including notes, reports, and other relevant documentation. This ensures that all information and evidence collected is properly documented and can be presented in court, if necessary.
Report writing: The officer prepares comprehensive reports summarizing the investigation, including findings, evidence, and conclusions. These reports are often submitted to superiors, and prosecutors, or presented in court as part of the legal process.
Testimony in court: The officer may be required to testify in court proceedings, presenting the evidence, explaining the investigation process, and providing expert opinions when necessary.

Consequences of Non-examination of Investigating Officer

The non-examination of investigating officers in criminal cases can have significant consequences. Firstly, it may undermine the principle of fair trial and due process, as the defense is deprived of the opportunity to cross-examine the officer and challenge their findings, biases, or omissions. This could potentially lead to a lack of transparency and accountability within the criminal justice system. Additionally, non-examination may result in incomplete investigations, as crucial details or alternative explanations may remain undiscovered without the opportunity for direct examination. It can also impact the reliability of evidence presented, as the court may not have the opportunity to assess the credibility of the investigating officer's actions and decisions. There are some of the cases that provide brief information regarding the non-examination of Investigating officers in a criminal case.

In the Munna Lal vs. the State of Uttar Pradesh case, the Supreme Court bench stated that “Although mere defects in the investigative process by itself cannot constitute ground for acquittal, it is the legal obligation of the Court to examine carefully in each case the prosecution evidence de hors the lapses committed by the Investigating Officer to find out whether the evidence brought on record is at all reliable and whether such lapses affect the object of finding out the truth.” It means that incomplete investigation by the investigating officers impacts the overall case of the prosecutors. In the Bahadur Naik vs. State of Bihar case, the Supreme Court observed that non-examination of the Investigating Officer would not be fatal to the prosecution if there were no material contradictions in the testimony of the witnesses. Moreover, the top Court bench in the S. K. Rashid and Ors. v. The State of Bihar case said that “non-examination of Investigating Officer is not necessarily fatal to the prosecution.” The bench hearing the matter also held that “ This case has to, however, and in the acquittal of the appellants for the sole reason that it shall not be proper to act upon the evidence of PW 7 alone, particularly, when the Investigating Officer has not been examined and even the first information report has not been proved in original. The appellants can legitimately complain that due to non-examination of the Investigating Officer, they have been prejudiced in their defence and this prejudice has been caused, we have already noticed due to the negligence and recalcitrance of the Investigating Officer.”

In the Birinder Rai vs. State of Bihar case, the Supreme Court observed that “the investigating officer was not examined in this case and that has resulted in prejudice to the accused. Having gone through the evidence of witnesses and other material on record, we do not find that any prejudice has been caused to the defence by the non-examination of the investigating officer. The mere fact that according to the seizure list a stick with blood stains and pellet marks was seized from the place of occurrence, would not advance this argument any further. The seizures have not been proved in this case because the investigating officer was not examined, and the seizure witness has turned hostile. We, therefore, ignore the seizures made and base our decision on the other evidence and the evidence of two eyewitnesses, who have impressed us as truthful.” On the contrary, the Supreme Court in the Raj Kishore Jha vs. State of Bihar and others held that “Mere non-examination of Investigating Officer does not in every case cause prejudice to the accused or affects the creditability of the prosecution version.” In the Baldev Singh vs. State of Haryana case, the top Court also mentioned that “Mere non-examination of investigating officer does not in every case cause prejudice to the accused or affects the credibility of the prosecution case.” It also added, “Whether or not any prejudice has been caused to the accused [in this case] is a question of fact to be determined in each case. Since Ram Singh-PW-1 was a part of the police party and PW-1 has signed in all recovery memos, non-examination of Chander Singh-SI could not have caused any prejudice to the accused in this case nor does it affect the credibility of the prosecution version.”

In Habeeb Mohammed v. State of Hyderabad case, the Supreme Court pointed out that “it was the duty of the prosecution to examine all material witnesses who could give an account of the narrative of the events on which the prosecution is essentially based and that the question depended on the circumstances of each case. In our opinion, the appellant was considerably prejudiced by the omission on the part of the prosecution to examine Biabani and the other officers in the circumstances of this case and his conviction merely based on the testimony of the police jamedar, in the absence of Biabani and other witnesses admittedly present on the scene, cannot be said to have been arrived at after a fair trial, particularly when no satisfactory explanation has been given or even attempted for this omission.” Also, in the Gandipally Srinivas. vs. The State Of A.P., the top Court observed that “Coming to the next submission of the learned counsel for the accused that non-examination of the Investigating Officer is fatal to the case of the prosecution, it has to be seen that the learned Magistrate had assigned valid reasons for non-examination of the Investigating Officer. In a criminal case, the evidence of the Investigating Officer has its own importance, but non-examination of the Investigating Officer is not fatal in all the cases.”