Investigation (Part 2)

I gave you a lecture on investigation, which was Part 1 of investigation — today I'll tell you the second part, the reality of some advice: that after a case is registered, investigation begins. Now the complainant, who in criminal-law terminology is also called the 'mustaghees', the complainant or mustaghees is one party, and the accused are one party. Now fix this firmly in your conscience: if A, as complainant, has registered a case against B and C, it does not necessarily mean that A is thereby absolved of all responsibility and now it's only the accused who have to clear themselves. This society, this police department, has instilled this idea in the accused's mind — that if you're accused, you stay accused — that's not how it is. There are wicked, quite shrewd litigants out there who have themselves committed the offence and are the ones registering the case, and the person against whom the case is being registered is actually the victim. So fix this in your mind: if, during investigation, you have told the investigating officer every fact, then the investigating officer is duty-bound that once all the facts are before him, in light of those facts, if the complainant becomes the accused and the accused become the complainant, the investigating officer will bring those accused into the list of complainants and bring the complainant into the list of accused.

Second point: if the investigating officer does not accept this, the court can do this — so if you are wronged and someone has made you an accused, you need to properly participate in the investigation. If you go in defeated from home, if you go in with a defeatist mindset, taking along the elders of the area who say, well, you've been trapped now, you have to shake hands with the police and sort things out — then there's no solution. If you think that way and go soft during investigation, thinking the policeman said he'll let you off — there's no solution; the law book gives you no solution in that. When does it give a solution? When you mount your full defence, when you bring everything onto the record — you are innocent, you bring everything onto the record — the investigating officer refuses to accept it, refuses to accept it — then what does the law say?

The law says that when the file comes before the court in the form of a challan, the court is not bound by what the police said — the courts are not bound in a police case, the court is not bound to accept what the police said. I am not saying the court will accept what the police said — no, the court is not bound; the court will look at the whole file, will examine all the evidence, and after examining it will see whether the police made him innocent correctly, fine; if the police wrongly declared him innocent, the court will bring him in as guilty; and if the police wrongly wrote him down as guilty, the court, after examining it, will declare him innocent. We get trapped in this whirlpool — that whatever the police said, the court must accept — well, if what the police said has material behind it that exists on the record, then yes, the courts will accept it; but if you are saying that the accusation against you is being nullified through documentary evidence, and yet the police still write you down as guilty, then the courts will not accept it; the courts will consider you innocent. The courts will consider it the bad faith of the police; the courts will consider it the bad faith of the complainant.

Suppose the allegation against you is that the complainant says: at such-and-such time, on such-and-such day, month, year, I was present along with witnesses when, at eight o'clock, the accused A, B, C and you arrived, they opened fire, and as a result of that firing, myself and the witnesses were hit, and they fled the scene issuing threats — now you've been specifically named that you came to the site at that time, you were armed, you fired, and your fire hit the complainant or his witness — this is a specific allegation.

Now investigation takes place; at the end of the investigation, suppose the police write that, according to their investigation, you are found guilty — okay, fine — now if all of what I'm about to tell you has been provided to the investigating officer and is part of the record, the court will throw that finding of guilt in the dustbin — the court will bin it; the court will in fact write that this is bad faith on the part of the investigating officer, that the complainant has colluded with him and wrongly declared you guilty. What things — first, absence: you formally state in your statement that at that time, on that day, that month, that year, I never went to that place at all. Now merely saying I didn't go is not enough — where were you at that time — you write in your statement that at that time I was at such-and-such place, and merely writing 'such-and-such place' is not enough — I was sitting at such-and-such place with such-and-such people — these are lies being told. Now here too your job isn't done — along with this you must provide sworn affidavits of those people, saying, yes, he was with us at that time. Even here your job isn't done — now give the police your phone number, have your call data record, your CDR, obtained; that call data record is obtained and it's found that at that time this mobile, which is your property, operates under you, you are using it continuously — I'm telling you three things, listen carefully:
1. You are using it.
2. It's your property, in your possession.
3. That mobile was not within range of the crime scene at that time, where the incident occurred, where they were shot — it shows some other location.

Now you have stated your absence — you weren't there, you were at such-and-such place, with such-and-such people, their sworn affidavits are in, you've got the CDR obtained — now, to rebut all of this, there must be something on the record. On the file, to rebut all these things, there must be something. If, in rebuttal, there's no material, no document on record to prove it, then the investigating officer has no way to say you're innocent — he can only find you guilty, because the complainant's own statement is that you came to the site, the complainant's own statement is that you were armed, the complainant's own statement is that you fired, the complainant's own statement is that your fire hit so-and-so. Now, the complainant is so confident that you came to the site, that you did all this, that he then has to prove it once your defence is up. Once your defence is up, he has to prove that, sir, this defence is false — if the complainant cannot prove that this defence is false, then you are innocent — don't hesitate, don't second-guess. During investigation, an innocent person has to bombard [the record] to prove his innocence, and has to do so continuously — if you sit back calmly, or take it lightly, then you'll get caught in the grinder.

Now the question arises — many people listening to this will say, counsel sahib, we go to give a statement, they don't record it; we go with witness affidavits, they won't take the affidavits; we say get the CDR obtained, they don't get it obtained — so our evidence remains up in the air. Yes, exactly, it remains up in the air, but sir, there's a counter to everything. It is said that in this world there is no illness for which the Almighty has not created a cure — so in the world of law, any fact you are legally entitled to assert has a remedy in the world of law, if your right is not being recognized. Your statement is not being recorded, your witnesses' statements are not being recorded, your CDR is not being obtained — well, if it's not being obtained, are you going to just sit at home with your head in your hands and become guilty? For this you must knock on the door of the court — Section 22-A, Section 22-B CrPC. What does 22-A CrPC, sub-section 6-C, say? It says that every fair and impartial act that is legally required is binding on the police official — whether he is the investigating officer, whether he's the SHO, whether he's in administration, whether he's in investigation — he is bound to do it. No failure should occur on his part, no negligence should be shown on his part.