Question: Police officer is doing unfair investigation under political pressure. He is protecting the accused and manipulating the vital evidence. What should I do in this circumstances? My advocate says that I should file a writ petition before the High Court. Can the High Court direct the investigating officer to do fair and unbiased investigation?
Asked from: Punjab
Just and fair investigation is a fundamental right under Article 21 of the Constitution of India. In Menka Gandhi vs. Union of India AIR 1978 SC 597 the Supreme Court held that procedure in criminal trials must be right, just and fair. So, you can approach the Court for directing the investigating officer to do a fair investigation.
Remedy against unfair investigation
The code of criminal procedure (crpc) empowers the judicial magistrate to ensure just and fair investigation. However, it is primary duty of the investigating officer to conduct a fair investigation [Mohd. Yousuf vs. Smt. Afaaq Jahan (2006) 1 SCC 627]. When police officer doing unfair investigation or takes favor of accused or ignoring material piece of evidence it casts a shadow of doubt on the investigation.
You should approach the concerned judicial magistrate under section 156(3) crpc to order proper investigation. If the magistrate finds serious defect in the investigation then he shall pass any suitable order under section 156(3) crpc.
The magistrate has the power to pass appropriate order so as to insure the fairness of investigation. In Sakiri Vasu vs. State of U.P. and others (2008) 2 SCC 409, the Supreme Court held that Judicial magistrate can monitor the investigation under section 156(3) crpc.
Section 156(3) provides for a check by the Magistrate on the police performing its duties under Chapter XII CrPC. In cases where the Magistrate finds that the police has not done its duty of investigating the case at all, or has not done it satisfactorily, he can issue a direction to the police to do the investigation properly, and can monitor the same.
Vasu vs. State of U.P. and others (2008) 2 SCC 409
What to do if police officer doing unfair investigation?
You should move an application before the judicial magistrate under section 156(3) crpc for calling the case diary and progress report of investigation. The investigating officer (IO) will produce the case diary and inform the court about the steps he has taken during the investigation.
Thereafter, you should invite the attention of the court to the defects he (IO) committed which renders the investigation unfair and biased. If the magistrate satisfies that these irregularities are fatal and will yield the investigation a piece of mockery then he shall pass appropriate order necessary for ensuring fair investigation.
You must show that which kind of unfairness has been done by the IO in the course of investigation. If the court finds that allegations are true he shall monitor the investigation till the filing of report under Section 173(2) crpc. Magistrate can order to collect certain evidence, record statement of eye witness or any order which he thinks fit and proper in the case.
If such an application under Section 156 (3) is filed before the Magistrate, the Magistrate can direct the FIR to be registered and also can direct a proper investigation to be made, in a case where, according to the aggrieved person, no proper investigation was made. The Magistrate can also under the same provision monitor the investigation to ensure a proper investigation.
Sakiri Vasu vs. State of U.P. and others (2008) 2 SCC 409
In Union of India v. Prakash P. Hinduja (2003) 6 SCC 195 the hon’ble Supreme Court has been observed that a Magistrate cannot interfere with the investigation by the police. In Emperor vs Khawaja Nazir Ahmed AIR 1945 PC 48 the Privy Council has held that court has no power to interfere in the exclusive domain of investigation.
But it is now explicit by the judgment of hon’ble Supreme Court in Sakiri Vasu case that Magistrate has implied power under Section 156(3) crpc to monitor the investigation and pass any necessary order to ensure the fair investigation however, he cannot himself investigate.
File an application u/s 156(3) crpc
Therefore, you should not directly move a writ petition before the High Court under Article 226 of Constitution. Move an application under section 156(3) crpc instead of a writ petition. The High Court shall not entertain a writ petition in respect of unfair investigation because an alternate remedy is available in the subordinate court. Section 156(3) provides effective remedy against improper and unfair investigation. So, you should avail this remedy before approaching the High Court.
