Investigation procedure
11. This Court in Dayal Singh [(2012) 8 SCC 263 (paras 1, 21, 22, 25 to 28, 32 and 47.5)] noted that the investigating officer is obliged to act as per the Police Manual and known canons of practice while being diligent, truthful and fair in his/her approach and investigation. It has been noted in the reported decision that an investigating officer is completely responsible and answerable for the manner and methodology adopted in completing his investigation. Concededly, upon completion of investigation, the investigating officer is obliged to submit report setting out prescribed details, to the Magistrate empowered to take cognizance of the offence referred to therein, without unnecessary delay. The report so presented is the conclusion reached by the investigating officer on the basis of materials collected during investigation. The duty of the investigating officer is to collate every relevant information/material during the investigation, which he must believe to be the actual course of events and the true facts unravelling the commission of the alleged crime and the person involved in committing the same. He is expected to examine the materials from all angles. In the event, there is sufficient evidence or reasonable ground that an offence appears to have been committed and the person committing such offence has been identified, the investigating officer is obliged to record his opinion in that regard, as required by Section 173(2)(i)(d) of the Code. In other words, if the investigating officer intends to send the accused for trial, he is obliged to form a firm opinion not only about the commission of offence, but also about the involvement of such person in the commission of crime.
Framing of charges: Procedure
12. Such opinion is the culmination of the analysis of the materials collected during the investigation – that there is “strong suspicion” against the accused, which eventually will lead the concerned Court to think that there is a ground for “presuming” that the accused “has” committed the alleged offence; and not a case of mere suspicion. For being a case of strong suspicion, there must exist sufficient materials to corroborate the facts and circumstances of the case; and be of such weight that it would facilitate the Court concerned to take cognizance of the crime and eventually lead it to think (form opinion) that there is ground “for presuming that the accused has committed an offence”, as alleged – so as to frame a charge against him in terms of Section 228(1) or 246(1) of the Code, as the case may be. For taking cognizance of the crime or to frame charges against the accused, the Court must analyze the report filed by the investigating officer and all the materials appended thereto and then form an independent prima facie opinion as to whether there is ground for “presuming” that the accused “has” committed an offence, as alleged. (It is not, “may” have or “likely” to have committed an offence, but a ground for presuming that he has committed an offence). The Magistrate in the process may have to give due weightage to the opinion of the investigating officer. If such is to be the eventual outcome of the final report presented by the investigating officer, then there is nothing wrong if he applies the same standard to form an opinion about the materials collected during the investigation and articulate it in the report submitted under Section 173 of the Code. It may be useful to refer to the decisions adverted to in Afroz Mohd. Hasanfata [State of Gujarat vs. Afroz Mohammed Hasanfatta – (2019) 20 SCC 539 (paras 16, 17, 22 and 39)] including in the case of Ramesh Singh [State of Bihar vs. Ramesh Singh – (1977) 4 SCC 39] and I.K. Nangia [State (Delhi Admn.) vs. I.K. Nangia & Anr – (1980) 1 SCC 258 (para 6)].
What is conspiracy?
47. Suffice it to observe that there is no tittle of material, much less tangible material to support the plea of the appellant that the Godhra incident unfolded on 27.2.2002 and the events which followed, was a pre-planned event owing to the criminal conspiracy hatched at the highest level in the State. It is well settled that conspiracy requires an act (actus reus) and an accompanying mental state (mens rea). The agreement constitutes the act and the intention to achieve the unlawful objective of that agreement constitutes the required mental state. The offence of conspiracy is independent of other offences. It takes place when there is an agreement to do or cause to be done an illegal act, or an act which may not be illegal but by illegal means. The rationale of conspiracy is that the required objective manifestations of dispositions of criminality is provided by the act of agreement. To convict a person of conspiracy, the prosecution must show that he agreed with others that together they will accomplish the unlawful object of the conspiracy. As noted earlier, inaction in the response or even in a given case of non-responsive administration, can be no basis to infer hatching of criminal conspiracy by the authorities of the State Government in absence of any clear evidence about the meeting of minds; and that, failure to respond to the messages sent by SIB was a concerted and deliberate act of omission or commission on the part of the State and other functionaries, as alleged. The SIT had recorded the statements of all concerned including the officials before forming the opinion, as noted in the final report, to discard the allegation under consideration. The Magistrate, as well as, the High Court committed no error whatsoever in accepting the final report presented by the SIT.
Information must be corroborated with the evidence
63. Needless to underscore that every information coming to the investigating agency must be regarded as relevant. However, the investigating agency is expected to make enquiries regarding the authenticity of such information and after doing so must collect corroborative evidence in support thereof. In absence of corroborative evidence, it would be merely a case of suspicion and not pass the muster of grave suspicion, which is the pre-requisite for sending the suspect for trial. This is the mandate in Section 173(2)(i)(d) of the Code, which postulates that the investigating officer in his report must indicate whether any offence appears to have been committed and if so, by whom. The opinion of the investigating officer formed on the basis of materials collected during the investigation/enquiry must be given due weightage. That would only be the threshold, to facilitate the concerned Court to take cognizance of the crime and then frame charge if it is of the opinion that there is ground for presuming that the accused has committed an offence triable under Chapter XIX of the Code.
Further investigation when arises?
89. To sum up, we are of the considered opinion that no fault can be found with the approach of the SIT in submitting final report dated 8.2.2012, which is backed by firm logic, expositing analytical mind and dealing with all aspects objectively for discarding the allegations regarding larger criminal conspiracy (at the highest level) for causing and precipitating mass violence across the State against the minority community during the relevant period. As aforementioned, the SIT has gone by the logic of falsity of the information or material and including the same remaining uncorroborated. In that, the materials collected during the investigation do not give rise to strong or grave suspicion regarding hatching of larger criminal conspiracy at the highest level for causing 306 mass violence across the State against the minority community and more so, indicating involvement of the named offenders and their meeting of minds at some level in that regard. The SIT had formed its opinion after considering all the materials collated during the investigation. The question of further investigation would have arisen only on the availability of new material/information in connection with the allegation of larger conspiracy at the highest level, which is not forthcoming in this case. Hence, the final report, as submitted by the SIT, ought to be accepted as it is, without doing anything more.
90. The Magistrate, upon presentation of final report could have exercised different options – as predicated in Abhinandan Jha158, Bhagwant Singh159, Popular Muthiah160 and Vishnu Kumar
Tiwari161. However, the Magistrate in the present case, after applying his mind independently to the final report dated 8.2.2012 and the materials appended thereto, chose to accept the same as it
is, without issuing any other direction to the SIT.
Party
Zakia Ahsan Jafri vs. State of Gujarat & anr – Criminal Appeal No. ………./2022 (arising out of SLP(Crl.) No. ………./2022 @ Diary No. 34207/2018) – June 24, 2022 – 3 judge bench.
