A note on ‘Monitoring of Investigation’

Archaic notions of a passive magistrate have taken a thorough beating over the last couple of years and the definitive shift towards a more inquisitorial and participative system is clearly discernible. The argument that there is no provision in CrPC that allows the magistrate to monitor an investigation has been debunked by the Supreme Court conclusively in Sakiri Vasu v. State of U.P (2008) 2 SCC 409, wherein such power has been read within Section 156(3) of the CrPC. It has been held that the power to direct investigation u/s 156(3) of the CrPC is wide enough to include all such powers in a Magistrate which are necessary for ensuring a proper investigation.

Therefore, in appropriate cases, the victim, complainant or a witness can approach the court seeking necessary directions to the police and supervision of investigation.

This reflects a definitive shift in the perception of a magistrate and recognition of his social function. The fact that he ought not to remain a mute spectator to the distortions and inadequacies of investigations, but make meaningful interventions. At the same time, the magistrate ought to desist from investigating himself, as in the system we have adopted in India, the same trial judge often conducts the trial. However, the magistrate is empowered to monitor the investigation, with a view to ensure it is free and fair.

The exact import of word ‘monitoring of investigation’ is too circumstantial to be put in a strait jacket. Placing a narrow interpretation on the phrase shall render it sterile. The phrase, therefore, ought to receive a liberal interpretation. Illustrative cases, where power to pass necessary directions may be used are : to protect witnesses (which is a huge area of concern in absence of a concrete pan-india witness protection legislation; Delhi is of course a notable exception with its own witness protection scheme), check disregard of vital evidence, non examination of witnesses and deliberate shielding of some accused.

A magistrate ought to push the envelop and actively monitor investigation, while avoiding :  investigating himself, or directing investigation by a specific agency, with respect to which there is a specific prohibition.

Monitoring of investigation by the magistrate is therefore, of vital importance to protect the integrity of prosecution. In this regard, the Magistrate has to walk a tightrope and balance, on one side – the separation of executive from judiciary and the investigative autonomy of the police and on the other, the imperatives of a fair, free and impartial investigation and to ensure that the search for truth is not muddied by police lapses, innocent or blameworthy.

 

PS :  The correctness of Sakiri Vasu was subsequently questioned by the Supreme Court in Nirmal Singh Kahlon (2009) 1 SCC 441 by saying “correctness whereof is open to question”, however since the matter was not referred to a larger bench for reconsideration and no reasons given as to why Sakiri Vasu was not acceptable. Sakiri Vasu still holds field and has since been endorsed by a catena of judgments including T.C.Thangaraj vs V.Engammal & Ors (2011) 12 SCC 328

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