Whom does one trust for a just, fair and impartial investigation?

The decision of the Delhi High Court in the case of Sajjan Kumar makes for interesting reading. In 2013, a trial court acquitted Kumar, a Congress leader, while convicting five others for killing Sikhs in the anti-Sikh violence that followed the assassination of Indira Gandhi in 1984. Upon appeal, the High Court found Kumar guilty of instigating a mob and participating in the killing of five members of a Sikh family. He was sentenced to a life term. Among the court’s conclusions was that the Delhi Police had failed abjectly in investigating the 1984 violence. There was a failure to register separate First Information Reports in respect to the five deaths, and circumstances showed that the Delhi Police had connived in brutal murders. Another conclusion was that this was “an extraordinary case where it was going to be impossible to proceed against A-1 [Sajjan Kumar] in the normal scheme of things because there appeared to be ongoing large-scale efforts to suppress the cases against him by not even recording or registering them.”

Closely related questions have also come up in other cases. Because of an absence of professionalism in investigating officers, in two recent instances the Supreme Court has appointed committees to ascertain the sequence of events leading to particular situations. In the case of an alleged fake encounter that resulted in the death of persons accused of having raped and murdered a young professional in Hyderabad, the Supreme Court appointed a committee headed by one of its retired judges. In the case of the alleged fake encounter that resulted in the death of the gangster Vikas Dubey in Uttar Pradesh, the Supreme Court again appointed a committee headed by a former judge of its bench. This appears to demonstrate a lack of faith in the investigating agencies, and raises questions over their ability to arrive at impartial conclusions. 

So whom does one trust for a just, fair and impartial investigation? Can one have faith in either the local police or agencies such as the Central Bureau of Investigation, once described by the Supreme Court as a “caged parrot”? 

Two more recent events are also worth recalling. In one instance, this January, the central government transferred the investigation of the 2018 violence at Bhima Koregaon from the Maharashtra police to the National Investigation Agency—apparently without the consent of the state government, and obviously, therefore, without the consent of the state police. Numerous civil-rights activists critical of the government have been arrested on accusations of orchestrating the violence. In another, just days ago, the Supreme Court transferred the investigation into the death of Sushant Singh Rajput, who is alleged to have taken his own life, from the Maharashtra police to the CBI, following accusations that the local police have not investigated the incident in an appropriate manner. The case does not appear to be as complex as it has been made out to be, especially in the frenzied media coverage of Rajput’s death, but is it that even the central government does not have faith in the impartiality of investigations conducted by state police? 

Investigation is defined in the Code of Criminal Procedure as including all proceedings for the collection of evidence conducted by a police officer or by any person authorised to do so. Collection of evidence is not an easy task, and it is even more difficult for a police officer who is overloaded with work. A report in the Indian Express in June 2018 noted that at five police stations in Delhi the number of cases per investigating officer varied from 64 to 140. This, I think, is representative of the situation in police stations across the country. It boggles the mind how a police officer can collect evidence in such a large number of cases, some of them involving heinous crimes. To add to the problem of overload, investigating officers also face other hurdles, such as a lack of forensic resources, pressures from vested interests, competing law–and-order duties and so on. It is not surprising that the Supreme Court has had to comment adversely on investigations in some cases.

For clarity, I would break down investigations into three different categories: good investigations, shoddy or poor investigations, mala fide investigations. Mala fide investigations can be for the purpose of “fixing” somebody, but also for ensuring the exoneration of a particular person—so that he or she is not charge-sheeted, or, if charge-sheeted, then acquitted as more or less a matter of course.

How good are good investigations? Crime in India-2018, a publication of the National Crime Records Bureau, discloses that the conviction rate varies from 18.8 percent, in cases of rioting, to 41.4 percent, in cases of murder. The conviction rate for rape, kidnapping and abduction varies between 27 and 29 percent. By a rough calculation, it would appear that the overall conviction rate for offences under the Indian Penal Code is in the region of 25 percent. This is low and definitely requires improvement. And this is in cases where the investigations are good—hence the convictions.

The courts have commented on shoddy or poor investigations in a large number of cases. In the Bilkis Bano case, involving multiple counts of gang rape and murder during the 2002 riots in Gujarat, the Bombay High Court noted several inexcusable lapses in investigation. These included even lapses as basic as a failure to record the names of the accused as stated by the prosecutrix when filing the FIR, delay in medical examination of rape survivors and so on. Why do such things happen? In other cases, the Supreme Court has commented on shoddy investigations involving failures to examine an important witness, a lack of effort by investigating officers to collect substantive evidence, and other such lapses. 

The consequence of shoddy or poor investigations is that innocent people may have to serve time in jail. In Babubhai and others vs State of Gujarat and others, the Supreme Court held that the right to a fair investigation is part of the constitutional rights guaranteed under Articles 20 and 21 of the Constitution of India. “Therefore, investigation must be fair, transparent and judicious as it is the minimum requirement of rule of law,” the court ruled. “Investigating agency cannot be permitted to conduct an investigation in tainted and biased manner.” Just this year, in Gangadhar vs The State Of Madhya Pradesh, a case relating to the recovery of cannabis, the Supreme Court noted that the police investigation was extremely casual, perfunctory and shoddy. This, along with incorrect appreciation of evidence, led Gangadhar to suffer incarceration for an offence he had never committed. 

It is not that a citizen has no remedy against unfair investigations. In KV Rajendran vs Superintendent of Police, CBCID South Zone, Chennai, the Supreme Court noted that it has constitutional powers to transfer an investigation from the police to any another agency such as the CBI, but only in rare and exceptional cases. To illustrate, the court stated that this would include cases where the investigation is found to be prima facie tainted or biased, where it is necessary to do justice and instil confidence in the investigation, or where the persons accused are high officials of the state or top officials of the investigating agency who can influence the investigation.

Mala fide investigations can also lead to the transfer of a case from one investigating agency to another. In Babubhai, the Gujarat High Court gave detailed reasons for concluding that the investigation by the local police had been totally one-sided, biased and mala fide. This view was endorsed by the Supreme Court. It ruled that non-interference by the court would ultimately result in a failure of justice, and, accordingly, it upheld the transfer of the investigation to the state Criminal Investigation Department.

Regrettably, impartial investigations are a complicated affair, or they have been made a complicated affair.