When you can’t refute substantive evidence, hit the technical faults in the investigation
An Inspector of police received a tip that prostitution is being carried on in a building. The informant stated that two girls were being kept in the building against their will. The Inspector raided the premises and two girls were recovered. Their statements under Section 164 of the Code of Criminal Procedure, 1973 were recorded before the judicial magistrate. In their statements, the victims detailed instances of rape at hands of accused. They also stated that they were forced into prostitution by the accused.
There are some special acts wherein certain provisions are made to ensure that the purpose of those acts are attained. For example, Section 13 of the Immoral Trafficking (Prevention) Act, 1956 mandates that a Special Police Officer (SPO), not below the rank of Inspector of Police, be appointed by the respective state governments for dealing with offences under the Act, for each area. Each state government is therefore obliged to notify who would qualify as the SPO in that state to deal with offences under the ITP Act, 1956 for each area. Only such notified SPO shall be mandated to conduct investigation, detention, prevention of crime and other police duties for offences specified under the ITP Act, 1956.
In Delhi Administration v. Ram Singh – AIR 1962 SC 63, a three-judge bench of the Supreme Court of India held that “there must be a definite purpose behind the provision of appointing a police officer in charge of the police duties within a specified area for the purpose of this Act….” The Supreme Court of India further held that “if the power of the special police officer to deal with the offences under the Act, and therefore to investigate into the offences, be not held exclusive, there can be then two investigations carried on by two different agencies, one by the special police officer and the other by the ordinary police.” Such a duplication of investigation and non-coordination between the regular police and SPO can lead to disastrous results for the investigating agency.
In the present case however, though the search & investigation was done by an officer of the rank of Inspector of Police, he was not the SPO. At trial, the defense counsel did not have much ammunition to hit the substantive evidence produced by the prosecution. Therefore, he focused on non-compliance of technical aspects of the investigation instead. He raised the point that the Investigating officer was not the SPO notified under the ITP Act, 1956. The Investigating Officer skirted the issue by saying that the notified SPO had gone on leave and by oral orders, the SPO had directed him to officiate as the SPO in the interim. But such oral orders were neither supported by any testimony, nor was the lack of written orders explained.
Since it is mandatory under the ITP Act, 1956 that only an SPO shall deal with offences therein, therefore, no other officer is competent to investigate such offences. Any investigation of offences under the ITP Act, 1956 by any other officer, not being the SPO, are without jurisdiction and hence illegal. A SPO may be assisted by sub-ordinate officers, and such assistance would not render the investigation illegal. However, it is mandatory under the ITP Act, 1956 that the SPO should be the lead investigating officer.
Hitting technical flaws in the investigation is as potent as hitting substantive evidence. Technicalities may vitiate trials as much as a loop hole in a substantive piece of evidence. On one hand such mistakes should be avoided by investigating agencies to ensure that proceedings are not rendered illegal due to minor misgivings. On the other, the defense lawyer would not miss the opportunity to find technical flaws in the investigation to help the case of his client.
*The author is a practicing lawyer at the High Court of Delhi and can be contacted at firstname.lastname@example.org