In Criminal Appeal No. 1466 of 2023 - SC- High Courts should be diligent before delving into efficacy of investigation at the stage of Bail, says Supreme Court
Justice Krishna Murari and Justice Ahsanuddin Amanullah [11-05-2023]

Read Order: Sanjay Dubey v State of Madhya Pradesh

Simran Singh

New Delhi, May 12, 2023: While exercising its criminal appellate jurisdiction, the Division Bench of Justice Krishna Murari and Justice Ahsanuddin Amanullah, even as they affirmed the order of the High Court which recorded guilt of dereliction of duty against the appellant inspector, stated that the proper course of action for the High Court would have been to confine itself with the question of bail preferred by the accused under Section 439 of the Code of Criminal Procedure, 1973 (‘CrPC’).

In the matter at hand, the inspector appellant challenged the order passed by the Madhya Pradesh High Court wherein an order of being guilty of dereliction of duty against the appellant was recorded. It was further recorded in the impugned judgment that the appellant was not fit to be assigned any important responsibility in the Police Department and was unfit to hold any responsible post. Superintendent of Police (‘SP’) had initiated an enquiry for imposition of major penalty against the appellant as well. The impugned judgment went on to record a direction to issue appropriate action against the appellant for dereliction of duty, insubordination and causing undue disruption in the proceedings of the High Court.

A First Information Report was registered against a man in the Katni Police Station where the appellant was the inspector. The Forensic Science Laboratory Report (‘FSL Report’) was forwarded to the office of SP which was forwarded to the appellant with a note that Deoxyribonucleic acid (‘DNA’) examination had to be conducted which was never carried out by him. Meanwhile the accused in a Protection of Children from Sexual Offences Act, 2012 (‘POCSO') case had sought bail before the High Court.

During the proceedings before the High Court, it was noted that the FSL report was not on record which led them to summon SP and the In-charge of the Regional Forensic Science Laboratory, Jabalpur, who in turn stated that the DNA examination as instructed to the appellant was not carried out by him. However, the appellant in his defence stated that the sub-inspector had not brought the FSL Report to his knowledge. This prompted the High Court to pass the impugned judgement.

The Court even though agreed with the contention of the appellant that, stricto sensu, in a petition under Section 439 of the Code of Criminal Procedure, 1973 (‘CrPC’), the High Court ought not to travel beyond considering the specific issue viz. whether to grant bail or reject bail to an accused in custody, also stated that the High Court concerned herein was not a ‘Court of Session’ but was rather established under Article 214 of the Constitution of India.

The Court refused to interfere with the impugned judgment, however, clarified that had this been rendered by the Court of Session, different factors would have been weighed by them. It went on to state the proper course of action for the High court would have been to confine itself with the question of bail preferred by the accused under Section 439 of CrPC, but in its opinion a grave lapse on the part of the police or investigative machinery was conducted which was fatal to the consequences on the justice delivery system.

The Bench opined that the High Court could have directed to institute a separate proceeding taking recourse to Article 226 of the Constitution, after formulating reasons and points for consideration. Thereafter, the matter should have been referred to the Chief Justice of the High Court for placing it before an appropriate Bench, which would proceed in accordance with law, after affording adequate opportunity to the person(s) proceeded against.

The Bench relied upon State Represented by Inspector of Police v M Murugesan wherein it was held that the jurisdiction of High Court was limited to grant or refuse to grant bail pending trial and such jurisdiction ends when the bail application is finally decided. However, in the present case on the date of passing the impugned judgment, the bail application was still at large and had not been decided either ways.

The Court noted that the SP had already line-attached the appellant and had also initiated enquiry for imposition of major penalty which was a suo moto act and not flowing from any direction of the Court. Thus, there was no occasion for the High Court to further observe for action against the appellant to be taken, as already, the SP had taken a decision to initiate enquiry against the appellant for imposition of major penalty.

The Bench was of the view that prima facie, callousness on the part of the appellant inspector in conducting a proper investigation to bring on record all relevant materials in support of the truth was conducted in a sensitive case. However the chances of undue benefit accruing to the accused, leading to miscarriage of justice, could not be ruled out.

The Court referred to State of Gujarat v Kishanbhai which had stated that “Every acquittal should be understood as a failure of the justice delivery system, in serving the cause of justice. Likewise, every acquittal should ordinarily lead to the inference, that an innocent person was wrongfully prosecuted. It is therefore, essential that every State should put in place a procedural mechanism which would ensure that the cause of justice is served, which would simultaneously ensure the safeguard of interest of those who are innocent…if any lapses are committed by them, they would not be able to feign innocence, when they are made liable to suffer departmental action, for their lapses.”

The Bench drew the analogy from the aforementioned judgment and stated that the lapses were grave, however the SP himself had realised the lapses had crept into the investigation and had on its own decided to initiate proceedings against the appellant. “The  operative portion of the impugned judgment merely became reiterative. As such, the impugned judgement did not warrant any interference by the Court.”

With the above observation, the Court dismissed the appeal with the caveat that the High court’s observations would not be treated as findings against the appellant. The same would also not cause any prejudice to him in the departmental proceedings which should take its own course, in accordance with law, and after providing full and effective opportunity to the appellant. The Bench also clarified that their observation would equally not prejudice the appellant nor used against the accused.