Transfer of Investigation under Section 528 BNSS for Biased/Defective Probe: Victim’s Article 21 Right to Fair Investigation

1. Introduction

Case: Jayaram Venkatesan v. The State of Tamilnadu
Court: Madras High Court (Madurai Bench)
Date: 19.06.2026
Coram: Justice B. Pugalendhi
Provision invoked: Section 528, Bharatiya Nagarik Suraksha Sanhita (BNSS) (transfer of investigation).

The petitioners—(i) the convener of “Arappor Iyakkam” and (ii) a Senior Advocate—sought transfer of investigation of Crime No.593 of 2025 from the local police (Palayamkottai Police Station) to CBCID, alleging a biased and defective investigation.

The factual backdrop was an indoor public-grievance meeting on illegal stone quarrying impacts in Tirunelveli district, where a group of advocates allegedly entered, disrupted proceedings, assaulted participants, and caused head injury to the second petitioner by throwing a chair. The petitioners asserted that police present at the scene did not prevent the incident and that extensive video/photographic recordings existed (including by media) but were not collected.

Key issues: (a) Whether the investigation in Crime No.593 of 2025 was conducted fairly and in a manner aimed at discovering the truth; (b) Whether deficiencies justified transfer under Section 528 BNSS; (c) Whether the filing of a final report (not yet taken on file) foreclosed transfer/continuation of investigation by another agency.

2. Summary of the Judgment

The High Court allowed the petition and held that the investigation was not fair. It noted that:

  • Though the organiser (first petitioner) had lodged an e-complaint on the same day, the police proceeded on a complaint by a Head Constable and registered a suo motu FIR against certain advocates.
  • The case diary showed the police did not record statements of the petitioners, participants, media personnel, or even properly examine the injured second petitioner, while recording statements mainly from police officers and hall management.
  • Despite the availability of photos/videos (including media presence), the Investigating Officer did not collect these materials “for reasons best known”.
  • The offences were altered (from Sections 115(2) and 296(b) BNS) to Sections 132, 189(2), and 296(b) BNS, and a final report was filed in a “hurried manner” with the court observing an attempt to close the case with “ordinary offences”.
  • A fair investigation is part of the victim’s fundamental right under Article 21 of the Constitution.

Directions: The Commissioner of Police, Tirunelveli was directed to retrieve the final report from the Judicial Magistrate No.1, Tirunelveli and forward the entire file in Crime No.593 of 2025 to the Inspector General of Police, CBCID (first respondent) within two weeks. The first respondent was to entrust further investigation to the second respondent (CBCID) or another “honest investigating officer” and ensure a fresh final report is filed within three months.

3. Analysis

3.1 Precedents Cited

The judgment does not cite any prior case law by name. The decision is instead anchored in first principles of criminal procedure and constitutional fairness—especially the proposition expressly stated in the order that the right to a fair investigation accrues to the victim under Article 21.

3.2 Legal Reasoning

The Court’s reasoning proceeds in a fact-driven, process-audit manner: it examines what an investigating agency should have done in a disturbance/assault occurring in an indoor meeting where independent digital evidence and neutral witnesses were readily available.

  • Truth-finding as the purpose of investigation: The Court reiterates that investigation power is vested in the State to “find out the truth”. On that normative baseline, omissions that predictably distort truth (non-examination of victims/organisers; failure to collect video evidence) become indicators of unfairness.
  • Victim-centric fairness under Article 21: The Court treats fair investigation not merely as an accused’s entitlement but as a victim’s fundamental right. This is operationalised by requiring meaningful engagement with the victim’s version (recording statements, verifying injuries, collecting corroborative media).
  • Assessment through the case diary: By calling for and perusing the case diary, the Court tests the investigation’s integrity against objective procedural steps—who was examined, what evidence was seized, and whether readily available sources (press recordings) were pursued.
  • Suo motu FIR and “diversion” concern: While the police can register cases based on information available to them, the Court viewed it as suspect that the organiser’s e-complaint was not acted upon while a Head Constable’s complaint became the basis—particularly where the injured and principal witnesses were available.
  • Effect of filing a final report: The prosecution argued that investigation was complete and the final report had been filed (though not taken on file). The Court rejected this as a bar, observing that even if taken on file, the defective final report “needs to be returned” by the Magistrate. The Court therefore ordered retrieval and transfer, signalling that procedural finality cannot legitimise a demonstrably deficient investigation.
  • Corrective administrative pathway: Instead of directly handing the case to a named officer, the Court placed responsibility on the CBCID head (first respondent) to entrust the investigation to CBCID or another honest officer, coupled with strict timelines—an accountability mechanism.

3.3 Impact

  • Lowered tolerance for “paper-only” investigations: The order underscores that where video recordings, press footage, and multiple civilian witnesses exist, an investigation that relies primarily on official witnesses risks being judicially characterised as biased.
  • Victim’s procedural voice: By explicitly linking fair investigation to Article 21 rights of the victim, the judgment strengthens victim-facing challenges to investigations that ignore injuries, do not record statements, or sidestep independent evidence.
  • Final report is not a shield against transfer: The Court’s willingness to order retrieval of a final report (not yet taken on file) and to direct reinvestigation by another agency signals that “completion” of investigation cannot be used to defeat scrutiny where fairness is compromised.
  • Institutional message to policing: The directive that CBCID may be engaged, and the emphasis on an “honest investigating officer,” may influence future supervisory practices—especially in politically or professionally sensitive incidents (here, involving advocates and a public-interest meeting).

4. Complex Concepts Simplified

  • Section 528 BNSS (Transfer of investigation): A power enabling the High Court to shift investigation from one police unit to another to secure a fair and impartial inquiry.
  • FIR / Suo motu case: An FIR is the formal registration of a criminal case. A “suo motu” case here refers to police registering based on their own information/complaint rather than acting on the complainant’s version.
  • Case diary: The investigating officer’s official record of investigative steps (witnesses examined, evidence collected, dates). Courts use it to evaluate investigation quality and fairness.
  • Final report: The police report filed at the end of investigation before the Magistrate (charge sheet or closure). “Taken on file” means the court has formally accepted it for further judicial process.
  • Alteration of sections: Changing the alleged offences during investigation based on material. The Court criticised alteration coupled with failure to verify injuries/evidence, treating it as part of a hurried closure.
  • Article 21 (Fair investigation): Article 21 protects life and personal liberty; the Court recognises that an unfair investigation can violate this guarantee for victims by denying an effective truth-finding process.

5. Conclusion

The decision in Jayaram Venkatesan v. The State of Tamilnadu stands out for its firm procedural audit of investigation quality and its explicit framing of fair investigation as a victim’s Article 21 right. The High Court treated failure to examine key civilian witnesses, the injured person, and readily available video/media evidence as hallmarks of bias or unfairness warranting transfer under Section 528 BNSS. Importantly, it clarifies that the mere filing of a final report—especially one not taken on file—does not immunise a defective investigation from being recalled, transferred, and redone under judicial supervision.