The Constitution Bench Judgment in Mukesh Singh — A Sensible Retreat from Automatic Bias

On 31.08.2020, a Constitution Bench of the Supreme Court delivered its unanimous verdict in Mukesh Singh v. State (Narcotic Branch of Delhi) [SLP (Crl.) Diary No. 39528/2018 decided on 31.08.2020, along with other batch matters]. The Constitution Bench had been assembled to decide on the correctness of a Three Justices’ Bench decision of 2018, Mohan Lal [AIR 2018 SC 3853]. 
Mohan Lal had taken up a very specific issue upon which conflicting decisions had been rendered by the different benches of the Supreme Court in the past. This issue was what is the effect upon the validity of a criminal investigation where the investigating officer is the same person who is the first informant. This is not an uncommon instance, mind you. For example, in narcotics cases, it is quite ordinary for the crime to be reported as a result of officers conducting a raid. Can the officer who conducted the raid continue as the investigating officer? And if so, does that have any effect on the validity of the ensuing investigation? The conclusions in Mohan Lal were that (a) the same officer reporting the offence must not continue as the investigating officer of the case, and (b) where this happens, then it vitiates subsequent proceedings, due to a presumption of bias being established. While the facts in Mohan Lal were specific to the NDPS Act, the observations made in the decision were broad and applicable to the context of criminal investigations more generally. 
This author had expressed his reservation about these conclusions in Mohan Lal. The doubts were loudly expressed within the year by a Bench of Two Justices in Mukesh Singh (which ultimately found its way to the Constitution Bench). Then, in Varinder Kumar [2019 SCC OnLine SC 190], a different Three Justices’ Bench (Two members of which were part of the Bench in Mohan Lal) supported the conclusions that had been arrived at earlier but with many reservations (and some problematic language on procedural rights of accused persons), and expressly declared that the 2018 ruling would only apply with prospective effect.
It appears that now, finally, the confusion has been put to rest.

The Arguments  

The 62 page long judgment details the submissions of the Appellants from Paragraphs 3 to 4, then narrates the submissions by the Solicitor General [Para 5] and the Additional Solicitor General [Para 6], and finally rounds this up with Rejoinder submissions [Para 7]. 

The Appellants, naturally, argued in support of Mohan Lal and its logic of automatic bias. The thrust of argument was focused around the NDPS Act and a key point was the interplay between Sections 42 and 52 of the Act. Section 52(3) states that an officer who conducts an arrest / search / seizure under Section 42, must turn over the person / items over to an officer empowered to investigate the case. For the appellants, this added statutory gloss to the point of principle that the observations in Mohan Lal were based upon. Surely, the text of Section 52(3) suggested that Parliament was also uncomfortable with the same officer continuing as the investigating officer in a case.    

On the other hand, the Respondents approached the issue from a generalist perspective and delved into the scheme of the Criminal Procedure Code 1973 to argue that there was, in fact, clear support for the same officer to continue as the investigating officer on a case in Section 157. The Code was also cited to argue that the categories of issues which render proceedings vitiated for “illegality” is clearly set out, and having the same officer continue on the case is not one of the specified grounds. On the scheme of the NDPS Act itself, it was argued that Section 52 did not demand that the officers must be different. 

Reading the judgment, it seems a bit surprising that the central focus of arguments was not the universalist approach of Mohan Lal. The Appellants recorded submissions do not suggest why that specific position is the desirable one. If anything, only the Respondents seem to have tried to explain what are the problems in that approach and why a case by case approach ought to be favoured. The argument in this regard seems to have been purely consequentialist — so many cases with good evidence will be thrown out on a technicality — and not about where this specific issue fits in the larger legal fabric of the doctrine on bias

The Judgment 

The judicial consideration of the argument begins from Para 8 onwards. The dissatisfaction with Mohan Lal is evident in Para 8.1: 
“On considering the entire decision of this Court in the case of Mohan Lal (supra), it appears that in this case also the Court did not consider in detail the relevant provisions of the Cr.P.C. under which the investigation can be undertaken by the investigating officer, more particularly Sections 154, 156 and 157 and the other provisions, namely, Section 465 Cr.P.C. and Section 114 of the Indian Evidence Act. Even in the said decision, this Court did not consider the aspect of prejudice to be established and proved by the accused in case the investigation has been carried out by the informant/complainant, who will be 35 one of the witnesses to be examined on behalf of the prosecution to prove the case against the accused. This Court also did not consider in detail and/or misconstrued both the scheme of the NDPS Act and the principle of reverse burden.”

It is quite evident by this point which way the judgment is going to go, and there are no surprises from here till the conclusions in Para 12. After a detailed discussion of the 1973 Code [Para 9], the judgment turns to the NDPS Scheme. How is the point about Section 42 / 52 dealt with? At Para 9.3.8 and 9.5, the judgment notes that it is nowhere stated that the officers empowered under 53 have to be different / shall be different from those empowered for 42. Thus, to require otherwise would be overstepping the judicial function by inserting words in the statute which do not exist. 

For the Court, the NDPS being a law which casts a reverse burden and carries heavy punishments is not something which warrants a rule of automatic bias in cases where the informant continues as investigating officer. As the judgment notes [Para 10], the accused would have the opportunity to cross-examine that officer and burnish her claim about bias. The judgment also referred to the presumption of regularity that is attached to official acts under Section 114, illustration (e) of the Evidence Act and observed that a rule of automatic bias would run contrary to this presumption. Thus, “the matter has to be left to be decided on a case to case basis without any universal generalisation.” [Para 10.1]

Some Thoughts

On the whole, Mukesh Singh is the kind of dour, sensible decision, that we need more of (perhaps without the copious extracts of statutory provisions — Sections 41 to 57 of the NDPS Act are extracted almost entirely!). For this author, the conclusions arrived at mark a sensible retreat from the rule of automatic bias that Mohan Lal had supported. It is impractical for a legal system where law enforcement is understaffed and it did not sit comfortably in a procedural setup where standards always trump rules when it comes to issues about weighing the impact of procedural safeguards. On top of which, I still think that a rule such as this would only have prompted law enforcement to find loopholes to work-around what they saw as a bad rule rather than the rule actually furthering the promise of fairer investigations. Lastly, and the speed with which the issue got resolved by a Constitution Bench is proof of this, the truly awesome nature of reliefs offered for the breach of a procedural rule were bound to make courts have second-thoughts about going ahead and fully implementing Mohan Lal.    
Coming back to a position where accused persons have to demonstrate bias is a sensible retreat. But, what next? How is this task to be carried out by accused persons and the plea determined by courts? And what about reliefs beyond acquittals? It is quite surprising that, much like Mohan Lal which it overruled, the judgment in Mukesh Singh has not offered us any clarity on these important practical aspects. There has been a tendency on part of the Supreme Court to not fully explore the remedial aspect of rights cases, and Mukesh Singh fits the bill. In being concerned with limiting the scope for acquittals on pleas of bias, the Court ended up missing a chance to explore other reliefs that accused persons might be entitled to when a plea of bias is raised at the end of trial or, as is much more common, in an appeal context.  
Let us take the bias point next. The Constitution Bench brackets prior decisions into two buckets — those for an automatic bias rule and those against — and in doing so ignores that there is a fair bit of subtlety involved in the task of determining a plea of bias. For instance, consider the judgment in Mohan Lal. A key reason for the Three Justices’ Bench choosing the automatic bias rule was its mistaken finding that the existing legal position required accused persons to “demonstrate prejudice” and “bias [to] be actually proved“. A closer look at the older case law would reveal that none of the decisions had gone ahead and actually dealt with how accused persons were to go and establish pleas of bias. The only real exception being the 2004 decision in V. Jayapaul [(2004) 5 SCC 223], which required that an accused must establish the existence of a “real likelihood of bias” and not existence of “actual bias”. 
The only reference we get to this practical side of things is Para 11 of the judgment in Mukesh Singh, where it is observed that: 

… Only in a case where the accused has been able to establish and prove the bias and/or unfair investigation by the informant-cum investigator and the case of the prosecution is merely based upon the deposition of the informant-cum-investigator, meaning thereby prosecution does not rely upon other witnesses, more particularly the independent witnesses, in that case, where the complainant himself had conducted the investigation, such aspect of the matter can certainly be given due weightage while assessing the evidence on record. Therefore, as rightly observed by this Court in the case of Bhaskar Ramappa Madar (supra), the matter has to be decided on a case to case basis without any universal generalisation. As rightly held by this Court in the case of V. Jayapaul (supra), there is no bar against the informant police officer to investigate the case. As rightly observed, if at all, such investigation could only be assailed on the ground of bias or real likelihood of bias on the part of the investigating officer the question of bias would depend on the facts and circumstances of each case and therefore it is not proper to lay down a broad and unqualified proposition that in every case where the police officer who registered the case by lodging the first information, conducts the investigation that itself had caused prejudice to the accused and thereby it vitiates the entire prosecution case and the accused is entitled to acquittal. (Emphasis supplied)

What we see is that the Court has gone ahead and supported Jayapaul, but observed that the accused may establish bias or its real likelihood, which is a tad confusing to say the least. Furthermore, the observations in the first half of Para 11 are loosely worded and can lend themselves to a view that the judgment goes to limit the significance of biased investigations only where the case lacked independent evidence. This, in my view, is an incorrect reading of the paragraph. Rather what the Court seemed to have been at pains to do here, and throughout the judgment, is to narrow down the cases where acquittals might be warranted on grounds of bias / real likelihood of bias on part of the investigating officer. 

With Mukesh Singh, it would seem that this issue of what happens to a prosecution where the same officer who was the first informant continues as the investigating officer has been settled. There is no vitiating of the case on grounds of presumptive bias. But that is the limited extent of clarity on offer, and the practical aspects of raising a plea of bias remain under-explored.