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?
Question 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 High Court for directing the investigating officer to do a fair investigation. You can file a writ petition under Article 226 of the Constitution of India.
Remedy against unfair investigation
The code of criminal procedure 1973 provides a remedy against unfair, improper or biased investigation. 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.
The code of criminal procedure (crpc) empowers the judicial magistrate to ensure just, right and fair investigation. If judicial magistrate finds that police is not doing proper investigation then he can exercise its power under section 156(3) crpc. The magistrate can pass appropriate order under Section 156(3) crpc to insure fairness of investigation. He has the right to monitor the investigation under that section.
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. Therefore, you should first approach the judicial magistrate instead of High Court.
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. You can invite the attention of the court that police officer is doing unfair investigation.
You must show that which vital evidence has been eliminating by him during the investigation. If the court finds some defects in investigation it can direct the IO to remove those defects. The court 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
File an application u/s 156(3) crpc
Therefore, you should not directly move a writ petition before the High Court. Move an application under section 156(3) crpc instead of a writ petition. The High Court does not entertain a writ petition if alternate remedy is available in the subordinate court. Section 156(3) provides effective remedy against improper or unfair investigation. So, you should avail this remedy before approaching the High Court.