N. Majithia Vs. State of Meghalaya & Ors C  INSC 513 (16 October
THOMAS, J. The police inaction to carry on with the investigation in a
particular criminal case was attributed to financial crunch of the State and
the High Court directed the complainant to supply funds to the police to meet
the cost. The party against whom the case was filed felt that such privately
funded investigation tantamounts to hired investigation which would mar the
sanctity of the purpose of statutory investigation and hence he approached this
Court for special leave to appeal. Leave granted. Facts which led to the
issuance of the aforesaid direction, briefly, are the following: A Mumbai based
company claimed ownership of certain land situated at a commercially strategic
location in the city of Mumbai. Another company the headquarters
of which is at Shillong in Meghalaya, entered into some transaction with the
Mumbai Company in respect of the said land. Further details of the disputes are
not very necessary for this appeal except stating from the stage of
commencement of the criminal proceedings. An FIR was lodged by the Shillong company
with the Shillong police alleging that the Mumbai Company has cheated Shillong
Company to the tune of Rupees nine crores. Sometime after lodgment of the said
FIR the Shillong Company observed that the police was not moving ahead with the
investigation as fast or as distant as the company expected. Hence the Shillong
company filed a Writ Petition before the High Court of Guwahati for appropriate
directions. A single judge of the High Court passed a direction the extract of
which reads thus:
circumstances I direct that in case the petitioner is ready to deposit the
amount which would be required to undertake the investigation and for the visit
of the senior police officers to Bombay in connection with the investigation
work the state government shall allow them to do so and direct the
investigating team to proceed in right earnest and speedily.
further directed that the amount that would be required to undertake the
investigation will be intimated to the petitioner within one week and the
petitioner shall make the deposit of the amount within three days thereafter.
above direction was obviously unpalatable to the Director General of Police, Meghalaya,
he and the Home Secretary of the State filed an appeal along with the State
before a Division Bench of the High Court challenging the said direction issued
by the Single Judge. According to the State, the investigation has to be
conducted in Mumbai by the Maharashtra
police and hence the direction issued by the Single Judge is unworkable. But
the said contention was repelled by the Division Bench. Regarding the direction
issued by the Single Judge to get funds from the aggrieved complainant, the
Division Bench did not dilate much.
learned judges did not interfere with the said direction and observed that in
any case the learned single judge has passed a just and proper order in view of
the peculiar facts and circumstances of the case.
this context we may point out that appellant was not brought into the array
even at the above stage. He was kept in dark about all what happened at Shillong
as the appellant was doing his business confining to the radius of Mumbai. But
when he was called by the police in connection with the FIR lodged at Shillong,
he learned about the facts which preceded till then. Hence he moved the High
court of Bombay in a Writ Petition under Article
226 of the Constitution for quashing the FIR and the further proceedings taken
thereon. But a Division Bench of Bombay High Court expressed helplessness in
the matter and dismissed the Writ Petition on the sole ground that the High
Court of Bombay has no jurisdiction under Article 226 of the Constitution to
deal with an FIR registered at Shillong.
the said Writ Petition was dismissed, the appellant rushed to this Court with
two Special Leave Petitions, one in challenge of the aforesaid judgment of the
Bombay High Court which dismissed his Writ Petition for want of territorial
jurisdiction and the other in challenge of the judgment of the Division Bench
of the Guwahati High Court as per which the Shillong police is directed to
collect funds from the respondent company.
point out, contextually, that the special leave petition filed by the appellant
against the judgment of the High Court was separately dealt with by granting
leave and judgment in that appeal was pronounced. It is reported as Navinchandra
N.Majithia vs. State of Maharashtra and others JT 2000 (10) 2 SC 61.
This Court by the said judgment ordered transfer of the FIR lodged by the
respondent company with the Shillong police for investigation of the Mumbai
thought that as the grievance of the appellant was redressed by the aforesaid
direction made by this Court.
learned counsel for the appellant as well as the State of Meghalaya submitted that the judgment of the Guwahati
High Court would open a Pandoras box as many would claim the same benefit and
the role of the State function would plummet. The counsel further said that the
direction cannot be allowed to remain in force as it is contrary to the scheme
of the Code of the Criminal Procedure. Hence they insisted on a decision in
this appeal on merits.
the question has bogged down to this: Can a statutory investigating agency be
directed to obtain financial assistance from private parties for meetin the
expenses required for conducting the investigation.
is defined in Section 2(h) of the Code as including all the proceedings under
this Code for the collection of evidence conducted by police officer or by any
person (other than a magistrate) who is authorised by a magistrate in this
behalf. Hence no proceedings outside provision of the Code can be dragged into
the contours of investigation. In other words, any proceedings falling outside
the ambit of the Code will not be regarded as investigation for the purpose of
the Code. Under the scheme of the Code, investigation commences with lodgment
of information relating to the commission of an offence. If it is a cognizable
offence, the officer-in-charge of the police station to whom the information is
supplied orally has a statutory duty to reduce it to writing and get the
signature of the informant. He shall enter the substance of the information,
whether given in writing or reduced to writing as aforesaid, in a book
prescribed by the State in that behalf. The Officer-in-charge has no escape
from doing so if the offence mentioned therein is a cognizable offence, whether
or not such offence was committed within the limits of that police station. But
when the offence is non-cognizable, the officer-in-charge of the police station
has no obligation to record it if the offence was not committed within the
limits of his police station. Section 156(1) of the Code says that the said
police officer can investigate any cognizable offence covered by the said FIR,
if the said offence could be inquired into or tried by a Court having
jurisdiction over the local area of that police station. If the offence was
committed outside the limit of such police station, the officer-in-charge of
the police station can transmit the FIR to the police station having such
territorial jurisdiction. Various States have formulated rules for effecting
transfer of such FIR in such contingencies.
thereafter would commence and the investigating officer has to go step by step.
The Code contemplates the following steps to be carried out during such
Proceeding to the spot; (2) ascertainment of the facts and circumstances of the
case; (3) discovery and arrest of the suspected offender; (4) collection of
evidence relating to the commission of the offence which may consist of (a) the
examination of various persons (including the accused) and the reduction of
their statements into writing, if the officer thinks fit, (b) the search of
places of seizure of things considered necessary for the investigation and to
be produced at the trial; and (5) formation of the opinion as to whether on the
material collected there is a case to place the accused before a magistrate for
trial and, if so, taking the necessary steps for the same by the filing of a
charge-sheet under Sec.173.
HN Rishbud vs. State of Delhi [AIR 1955 SC 196} and State of Madhya Pradesh vs. Mubarak Ali [AIR 1959 SC 707]).
the above duties are conferred by the statute on the police and they shall be
carried out as they are statutory duties. The sublime idea behind formulating
such steps for conducting investigation is to enable the statutory authority to
independently carry out the investigation without being influenced by any of
the interested parties. Investigation must not only be fair but impartial and
the conclusion reached by them should be unbiased.
Division Bench of the Madras High Court had pointed to that object of the
statutory investigation in re Muddamma Malla Reddy [1954 Crl.L.J.167] through
the following observations:
investigating police are primarily the guardians of the liberty of innocent
persons. A heavy responsibility devolves on them of seeing that innocent
persons are not charged on irresponsible and false implication. There is a duty
cast on the investigating police to scrutinize a first complaint in which number
of persons are implicated with rigorous care and to refrain from building up a
case on its basis unless satisfied of its truth.
vs. State of Madras [1970 (3) SCR 931] this Court said thus, after referring to
various provisions in the Code dealing with investigation:
the above provisions of the Code are aimed at securing a fair investigation
into the facts and circumstances of the criminal case; however serious the
crime and howsoever incriminating the circumstances may be against a person
supposed to be guilty of a crime the Code of Criminal Procedure aims at
securing a conviction if it can be had by the use of utmost fairness on the
part of the officers investigating the crime before the lodging of a charge-
sheet. Clearly the idea is that no one should be put to the harassment of a
criminal trial unless there are good and substantial reasons for holding it.
said observations were followed by this Court in State of Rajasthan vs. Gurcharandas Chadha [1980 (1)
Code does not recognise private investigating agency. If any person is
interested in hiring any such private agency, he may do so at his own risk and
cost, but such investigation would not be regarded as investigation made under
law. Any evidence collected in such private investigation and any conclusion
reached by such investigators cannot be presented by Public Prosecutor in any
trial. Of course it may be possible for the defence to present such evidence.
In this context, we may refer to a recent decision of this Court R.Sarala vs.
TS Velu [2000 (4) SCC 459]. This Court said that even a Public Prosecutor
cannot be officially involved during the stage of investigation. The following
observations made by this Court in the said decision will be useful:
and prosecution are two different facets in the administration of criminal
justice. The role of a Public Prosecutor is inside the court, whereas
investigation is outside the court. Normally the role of a public Prosecutor
commences after the investigating agency presents the case in the court on
culmination of investigation. Its exception is that the Public Prosecutor may
have to deal with bail applications moved by the parties concerned at any
stage. Involving the Public Prosecutor in investigation is unjudicious as well
as pernicious in law.
rate no investigating agency can be compelled to seek the opinion of a Public
Prosecutor under the orders of the Court.
above discussion was made for emphasising the need for official investigation
to be totally extricated from any extraneous influence. The police
investigation should necessarily be with the fund supplied by the State. It may
be possible for a rich complainant to supply any amount of fund to the police
for conducting investigation into his complaint. But a poor man cannot afford
to supply any financial assistance to the police. It is an acknowledged reality
that he who pays the piper calls the tune. So he would call the shots. Its
corollary is that somebody who incurs the cost of anything would normally
secure its control also. In our constitutional scheme, the police and other
statutory investigating agency cannot be allowed to be hackneyed by those who
can afford it. All complaints shall be investigated with equal alacrity and
with equal fairness irrespective of the financial capacity of the person
lodging the complaint.
crunch of any state treasury is no justification for allowing a private party
to supply funds to the police for conducting such investigation.
of the fiscal resources of the State for meeting the expenses needed for such
investigations is the lookout of the executive. Failure to do it is no premise
for directing a complainant to supply funds to the investigating officer. Such
funding by interested private parties would vitiate the investigation
contemplated in the Code. A vitiated investigation is the precursor for
miscarriage of criminal justice. Hence any attempt, to create a precedent
permitting private parties to supply financial assistance to the police for
conducting investigation, should be nipped in the bud itself. No such precedent
can secure judicial imprimatur. If the impugned judgments are allowed to stand,
it would set up an unwholesome precedent. Hence we set aside the directions
contained in the impugned judgments for supplying funds to the police.