Tag Archives: bias

Informant – Cannot be the Investigator

In a criminal prosecution, there is an obligation cast on the investigator not only to be fair, judicious and just during investigation, but also that the investigation on the very face of it must appear to be so, eschewing any conduct or impression which may give rise to a real and genuine apprehension in the mind of an accused and not mere fanciful, that the investigation was not fair. In the circumstances, if an informant police official in a criminal prosecution, especially when carrying a reverse burden of proof, makes the allegations, is himself asked to investigate, serious doubts will naturally arise with regard to his fairness and impartiality. It is not necessary that bias must actually be proved. It would be illogical to presume and contrary to normal human conduct, that he would himself at the end of the investigation submit a closure report to conclude false implication with all its attendant consequences for the complainant himself. The result of the investigation would therefore be a foregone conclusion. Mohan Lal  v. State of Punjab, (2018) 17 SCC 627.

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Doctrine of Waiver

In State of Punjab v. Davinder Pal singh Bhullar, (2011) 14 SCC 770, the court explained the doctrine of waiver on the basis of the earlier pronouncements which were taken note of and discussed the same in the following manner:
“In Manak Lal v. Prem Chand Singhvi, AIR 1957 SC 425, the Court held that alleged bias of a Judge/Official/Tribunal does not render the proceedings invalid if it is shown that the objection in that regard and particularly against the presence of the said official in question, had not been taken by the party even though the party new about the circumstances giving rise to the allegations about the alleged bias and was aware of its right to challenge the presence of such official. It was further observed:
Waiver cannot always and in every case be inferred merely from the failure of the party to take the objection. Waiver can be inferred only if and after it is shown that the party new about the relevant facts and was aware of his right to take the objection in question.”
In Power Control Appliances v. Sumeet Machines (P) Ltd., (1994) 2 SCC 448, it was held as under:
“Acquiescence is sitting by, when another is invading the rights….It is a course of conduct inconsistent with the claim….It implies positive acts; not merely silenceor inaction such as involved in laches ….The acquiescence must be such as to lead to the inference of a license sufficient to create a new right in the defendant..”
Inaction in every case does not lead to an inference of implied consent or acquiescence as has been held in P. John Chandy & Co. (P) Ltd. V. John P. Thomas, (2002) 5 SCC 90. Thus the court has to examine the facts and circumstances in an individual case.
Waiver is an intentional relinquishment of a right. It involves conscious abandonment of an existing legal right, advantage, benefit, claim or privilege, which except for such a waiver, a party could have enjoyed. In fact, it is an agreement not to assert a right. There can be no waiver unless the person who is said to have waived, is fully informed as to his rights and with full knowledge about the same, he intentionally abandons them. Vasu P. Shetty v. Hotel Vandana Palace and Others, (2014) 5 SCC 660.

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