Non-Examination of Investigating Officer in Indian Criminal Trials

The Evidentiary Conundrum: Non-Examination of the Investigating Officer in Indian Criminal Jurisprudence

Introduction

The Investigating Officer (IO) plays a pivotal role in the Indian criminal justice system, from the initial registration of the First Information Report (FIR) to the culmination of the investigation and submission of the final report (challan/charge-sheet) under Section 173 of the Code of Criminal Procedure, 1973 (CrPC). The testimony of the IO during trial is often considered crucial for unfolding the narrative of the investigation, proving various procedural steps, and enabling the defence to exercise its right to cross-examination, particularly concerning statements recorded under Section 161 CrPC. However, instances arise where the IO is not examined during the trial. This article undertakes a scholarly analysis of the legal implications of the non-examination of the Investigating Officer in criminal trials in India, drawing upon judicial pronouncements and statutory provisions to delineate the circumstances under which such non-examination may or may not be fatal to the prosecution's case.

The Role and Importance of the Investigating Officer's Testimony

The IO is the architect of the prosecution's foundational case. Their testimony is generally adduced to prove various aspects of the investigation, including but not limited to:

  • The receipt and registration of the FIR (Section 154, CrPC).
  • Visits to the scene of the crime and preparation of site plans/maps.
  • Seizure of articles, preparation of seizure memos, and ensuring their safe custody.
  • Arrest of the accused and compliance with procedural safeguards.
  • Recording of statements of witnesses under Section 161 CrPC.
  • Conducting Test Identification Parades, if any.
  • Sending relevant materials for forensic/expert examination.
  • Preparation and submission of the inquest report in cases of unnatural death.
  • Maintenance of the case diary under Section 172 CrPC, which the court may use to aid its inquiry or trial, though it is not substantive evidence for or against the accused.

The examination of the IO is particularly vital for the defence to bring on record contradictions or omissions in the testimonies of prosecution witnesses by confronting them with their previous statements recorded under Section 161 CrPC, as permissible under Section 145 of the Indian Evidence Act, 1872, read with Section 162 CrPC. The IO is the witness who can formally prove these previous statements if denied by the witness. As observed in State Of Karnataka v. K. Yarappa Reddy . (1999 SCC 8 715, Supreme Court Of India, 1999), investigative lapses, while undesirable, do not automatically override credible substantive evidence. However, the IO's testimony is key to understanding the thoroughness and fairness of the investigation itself, a principle underscored in cases like Jai Bhagwan Singh v. State And Others (Rajasthan High Court, 1996) and Ajay Kumar Agarwal Petitioner(S)/(S) v. Union Territory Of J.K. And Others (S). (Jammu and Kashmir High Court, 2022), which emphasize the need for fair and impartial investigation.

Judicial Scrutiny of Non-Examination: The Overarching Principle of Prejudice

The consistent position of Indian courts, particularly the Supreme Court, is that the non-examination of the IO is not ipso facto fatal to the prosecution case in every instance. The central determinant is whether such non-examination has resulted in prejudice to the accused, thereby vitiating the fairness of the trial. As the Supreme Court held in Behari Prasad And Others v. State Of Bihar . (1996 SCC 2 317), the absence of the IO's testimony did not inherently vitiate the trial, especially when substantial evidence supported the prosecution's case. This principle was reiterated in Ram Gulam Chaudhary And Others v. State Of Bihar . (2001 SCC CRI 1546), where it was stated that non-examination does not inherently undermine the prosecution's case unless specific prejudice can be demonstrated.

The Calcutta High Court in S.A. Salim v. State (Calcutta High Court, 2016), citing Ambika Prasad And Another v. State (Delhi Administration) . (2000 SCC 2 646), affirmed that non-examination of the IO will not benefit the accused if the prosecution case is proved by clinching evidence, and defective investigation (which could include non-examination of IO) should not lead to acquittal if the case is otherwise established conclusively. The Jharkhand High Court in YUGAL MUNDARI JUGAL MUNDARI v. STATE OF JHARKHAND (Jharkhand High Court, 2023), citing Bihari Rai Vs. State of Bihar, held that non-examination of the IO did not corrode the credibility of the prosecution version when eyewitness testimony was well-corroborated by medical evidence and no contradictions were drawn from Section 161 CrPC statements.

Circumstances Where Non-Examination May Be Fatal to the Prosecution

Despite the general rule, there are specific situations where the failure to examine the IO can prove fatal to the prosecution:

  • Prejudice to the Accused in Proving Contradictions: If the defence is denied the opportunity to prove material contradictions or omissions in the statements of prosecution witnesses (recorded under Section 161 CrPC) because the IO was not examined, it can cause serious prejudice. The Madhya Pradesh High Court in ABDUL LAIK AND OTHERS (DELETED) v. THE STATE OF MADHYA PRADESH (Madhya Pradesh High Court, 2019), citing State of Karnataka Vs. Bhaskar Kushali Kotharkar, noted that non-examination of the IO could deprive the accused of proving such contradictions. The Patna High Court in Nagina Sharma And 23 Ors. v. The State Of Bihar . (Patna High Court, 1990) also highlighted that if contradictions are pointed out, the IO's examination becomes crucial.
  • Disputes Regarding Objective Findings: When crucial aspects of the investigation, such as the place of occurrence, contents of the site plan, seizure of material objects, or other objective findings recorded by the IO, are in dispute and can only be clarified or proved by the IO, their non-examination can be detrimental (Nagina Sharma And 23 Ors. v. The State Of Bihar . (Patna High Court, 1990)).
  • Weakness of Other Prosecution Evidence: If the rest of the prosecution evidence is weak, inconsistent, or unreliable, the absence of the IO's testimony to corroborate key elements of the investigation can lead to the collapse of the prosecution case. In Lahu Kamlakar Patil And Another v. State Of Maharashtra . (2013 SCC 6 417, Supreme Court Of India, 2012), the absence of the IO's examination, coupled with unreliable eyewitness testimony, weakened the prosecution's case. Similarly, in Rajasekar v. The State (Madras High Court, 2016), non-examination of the IO was held fatal where there was uncertainty regarding the vehicle involved and the identity of the accused.
  • Specific Statutory Requirements or Context: In certain specific contexts, such as cases under special enactments where the IO (e.g., an empowered officer) has specific statutory duties related to investigation and filing of the report, their non-examination can be fatal. The Kerala High Court in Hashim v. Assistant Sub Inspector (2013 SCC ONLINE KER 24475) distinguished from Behari Prasad and found non-examination of the empowered Abkari Officer fatal where the report of that officer conferred jurisdiction and the investigation had irregularities.
  • Unexplained Obscurities: The Patna High Court in Nagina Sharma observed that non-examination of the IO can be a serious lapse if "obscurity appearing in the case remained unexplained."
  • Failure to Prove Investigation: If the IO is unavailable for valid reasons (e.g., death), the investigation done by him must still be proved "otherwise in accordance with law" (Nagina Sharma And 23 Ors. v. The State Of Bihar . (Patna High Court, 1990)). Failure to do so might be fatal.

The trial court in Jagdish Gond v. State Of Bihar And Others (2018 SCC ONLINE PAT 3032, Patna High Court, 2018) also found non-examination of the IO fatal, a finding upheld on appeal, though the primary ground for acquittal was previous enmity leading to a false case.

Circumstances Where Non-Examination May Not Be Fatal

Conversely, the non-examination of the IO is often held to be not fatal in the following circumstances:

  • Cogent and Reliable Substantive Evidence: Where the prosecution case is supported by strong, credible, and corroborated evidence from eyewitnesses and other sources (e.g., medical evidence), the IO's absence may not be fatal. This was the stance in Behari Prasad And Others v. State Of Bihar . (1996 SCC 2 317), Ambika Prasad And Another v. State (Delhi Administration) . (2000 SCC 2 646) (where testimony of injured witnesses was found reliable), and S.A. Salim v. State (Calcutta High Court, 2016).
  • No Contradictions Pointed Out or No Prejudice Shown: If the defence does not point out any material contradictions or omissions in the statements of witnesses vis-à-vis their Section 161 CrPC statements, or fails to demonstrate any specific prejudice caused by the IO's non-examination, courts are reluctant to treat it as a fatal flaw (Nagina Sharma And 23 Ors. v. The State Of Bihar . (Patna High Court, 1990); ABDUL LAIK AND OTHERS (DELETED) v. THE STATE OF MADHYA PRADESH (Madhya Pradesh High Court, 2019); YUGAL MUNDARI JUGAL MUNDARI v. STATE OF JHARKHAND (Jharkhand High Court, 2023)).
  • Place of Occurrence and Other Facts Established: If the place of occurrence and other essential facts are clearly established through the testimony of other witnesses, the IO's non-examination on these aspects may not be critical (Nagina Sharma And 23 Ors. v. The State Of Bihar . (Patna High Court, 1990)).
  • Formal Nature of IO's Evidence: If the IO's testimony would have been largely formal, and the substantive parts of the investigation are proved through other means or are not seriously challenged.
  • IO Genuinely Unavailable: As noted in Nagina Sharma, if the IO is unavailable for valid reasons (death, not easily available), and the investigation is proved otherwise, the non-examination might be excused, though the court also has powers to take coercive measures for appearance.

Procedural Aspects, Duties of Court and Prosecution

The onus is primarily on the prosecution to produce all relevant witnesses, including the IO. The Patna High Court in Nagina Sharma And 23 Ors. v. The State Of Bihar . (Patna High Court, 1990) and Hazari Choubey And 2 Ors. v. The State Of Bihar (Patna High Court, 1987) lamented the non-cooperation of the police administration in ensuring the presence of IOs for trial, noting that justice can suffer on this account. The court in Nagina Sharma emphasized that if the examination of the IO is very essential and they are not appearing, "then the court under law has power to adopt coercive measures for the appearance of the investigating officer as and when needed."

The case of SMT SREEMATI v. UNITED INDIA INSURANCE CO LTD (Karnataka High Court, 2019), though a civil matter (MACT claim), illustrates the perceived importance of the IO's testimony, where the High Court remanded the matter to allow the claimants to examine the IO after the Tribunal had dismissed the petition partly on grounds of non-examination.

It is also pertinent to note the IO's duties as outlined in the CrPC, such as maintaining a case diary (Section 172) and submitting reports (Section 173), which were referred to in State And Others v. Murlidhar Govardhan And Others, (Bombay High Court, 1959). The integrity of these processes is vital for a fair trial.

Conclusion

The non-examination of the Investigating Officer in a criminal trial in India is not a matter of a straightjacket formula leading to an inevitable outcome. The judiciary has adopted a pragmatic and justice-oriented approach, focusing on whether such non-examination has caused tangible prejudice to the accused's right to a fair trial and their ability to put forth a proper defence. While the IO's testimony is undoubtedly important for proving the investigation and facilitating the cross-examination on prior statements, its absence will not automatically vitiate the trial if the prosecution's case is otherwise established by credible, cogent, and unimpeachable evidence, and no specific prejudice to the accused is demonstrated. Conversely, where the IO's evidence is crucial for proving disputed facts, for enabling the accused to establish material contradictions, or where the remaining evidence is tenuous, non-examination can indeed prove fatal. The courts consistently underscore the prosecution's duty to produce the IO and the trial court's power to secure their attendance, ensuring that the quest for truth is not hampered by procedural lapses, while simultaneously safeguarding the fundamental rights of the accused.