Bar Scam Case; Legality of submitting Final Report before Legal Officers for legal Scrutiny and Expert opinion [Updated]

It is recently reported in media that “the probe into the (Kerala) bar bribery scam, allegedly involving (Keral) Finance Minister K M Mani, is nearing its end. The investigating officer informed the Vigilance Court here on Friday that the final report will be submitted after availing legal scrutiny and expert opinion. Vigilance SP Sukesan R, who heads the probe team, told the court that the final report will be filed as soon as all the formalities are completed. However, he said that these formalities does not come under the purview of the investigating officer”.[New Indian Express ;30^th May]

The Supreme Court in catena of Judgments emphasized the need for investigation to be totally extricated from any extraneous influence. In H. N. Rishbud Vs. State of Delhi (AIR 1955 SC 196) a three Judge Bench of the Supreme Court, after delineating the different steps in investigation as contemplated in the Code of Criminal Procedure, has pointed out that the formation of the opinion, whether or not there is a case to place the accused on trial, should be that of the officer in charge of the police station and none else[emphasis by me]. In Abhinandan Jha v. Dinesh Mishra (AIR 1968 SC 117 ) the Supreme Court held as follows:-

"We have already pointed out that the investigation, under the Code, takes in several aspects, and stages, ending ultimately with the formation of an opinion by the police as to whether, on the material covered and collected a case is made out to place the accused before the Magistrate for trial, and the submission of either a charge sheet, or a final report is dependent on the nature of the opinion, so formed. The formation of the said opinion, by the police, as pointed out earlier, is the final step in the investigation, and that final step is to be taken only by the police and by no other authority."[emphasis by me].

The Supreme Court had an occasion to consider a similar question in Sarala Vs Velu [AIR 2000 SC 1731]. . In this Case Justice K.T. Thomas., who wrote the Judgment had distinguished the role of various players in the administration of Justice and held as follows:

“In this context we may also point out that the investigating officer, though is subject to supervision by his superiors in rank is, not to take instructions regarding investigation of any particular case even from the executive Government of which he is a subordinate officer. This position of law which was well delineated by the celebrated Lord Denning, has since been followed by this Court. In R. v. Metropolitan Police Commr. (1968 (1) All ER 763) Lord Denning had said thus:

"I have no hesitation, however, in holding that, like every constable in the land, he should be, and is, independent of the executive. He is not subject to the orders of the Secretary of State .... I hold it to be the duty of the Commissioner of Police, as it is of every chief constable, to enforce the law of the land. He must take steps so to post his men that crimes may be detected; and that honest citizens may go about their affairs in peace. He must decide whether or not suspected persons are to be prosecuted; and, if need be, bring the prosecution or see that it is brought; but in all these things he is not the servant of anyone, save of the law itself. No Minister of the Crown can tell him that he must, or must not, keep observation on this place or that; or that he must, or must not, prosecute this man or that one. Nor can any police authority tell him so. The responsibility for law enforcement lies on him. He is answerable to the law and to the law alone."

In the above Case Supreme Court clarified that the investigating officer cannot be directed to be influenced by the opinion of the Public Prosecutor or any other authority. Supreme Court also deprecated the practice of getting an opinion from ‘Public Prosecutor’ before filing the Charge sheet’. The relevant portion is extracted below,

“There is no stage during which the investigating officer is legally obliged to take the opinion of a Public Prosecutor or any authority, except the superior police officer in the rank as envisaged in S.36 of the Code. Thus the Public Prosecutor is to deal with a different field in the administration of justice and he is not involved in investigation. It is not the scheme of the Code for supporting or sponsoring any combined operation between the investigating officer and the Public Prosecutor for filing the report in the court."

In Navin Chandra Majithia Vs State of Meghalaya and others [AIR 2000 SC 3275] also the apex court unequivocally held that even a Public Prosecutor cannot be officially involved during the stage of investigation.

Offences investigated by Vigilance/CBI;

There is an argument that, for Offences investigated by Vigilance/CBI etc, there are specific instructions in Vigilance/ CBI Manual that the Final report shall be submitted to the Legal Officers/Prosecutors for legal scrutiny.

Regarding the validity of instructions in CBI manual, the Constitution Bench in Lalita Kumari Vs State [AIR 2014 SC 187] it is held that “Crime Manual (of CBI) is not a statute and has not been enacted by the Legislature. It is a set of administrative orders issued for internal guidance of the CBI officers. It cannot supersede the Code (Cr.P.C)”.

In Taj Corridor Scam Case (M.C.Mehta Vs Union of India AIR 2007 SC 1087 ) also Supreme Court had stated that the CBI Manual, is subject to the provisions of the Code of Criminal Procedure and in case of conflict, the Code of Criminal Procedure shall prevail. There is no provision in Code of Criminal Procedure which requires the investigating officer to take legal opinion from any one, before submitting the final report in Court.  Actually in this Case also Supreme Court deprecated the practice of taking opinion from prosecutors. Justice Kapadia held that “As stated by this Court in the case of Sarala (cited supra) the formation of opinion, whether or not there is a case to place the accused on trial has to be of the officer in charge of the police station. One fails to understand why an opinion of Sr. P.P. had been taken in the present case. He is not a member of the hierarchy. The S. P. is not legally obliged to take his opinion”.

More over High Court of Kerala in Arumughan Vs State of Kerala 2008(2)KLD 76 had made it clear that "the Legal Advisor or the Public Prosecutor has no role to play in the matter of investigation of the case as has been held by the Apex Court in R. Sarala v. T. S. Velu, AIR 2000 SC 1731 :. It is also worthy to note that the Apex Court has in H. N. Rishbud v. State of Delhi, [AIR 1955 SC 196] : held that, while considering a case under the PC Act, formation of opinion as to whether or not there is a case to place the accused on trial is to be that of the Officer in charge of the police station and that there is no provision permitting delegation thereof, but only a provision entitling superior officers to supervise or participate under S.551 of the Code of Criminal Procedure, 1898”

A conspectus of the aforesaid Judicial Pronouncements unequivocally indicates that the process of formation of opinion as to whether or not there is a case to place the accused on trial, completely vest with the investigating officer and formation of opinion cannot be delegated to any other authority.

M.A.Rashid is the Co-Founder of LIVE LAW.  He revised Ratanlal Dheeraj Lal “Indian Penal Code” (34th Ed) with Justice KT Thomas.