The Punjab and Haryana High Court has refused to order a fresh investigation into the corruption case against former Punjab minister Sunder Sham Arora, holding that an investigation cannot be presumed to be biased merely because it was conducted by an officer subordinate to the complainant.
The High Court also clarified that its observations were only for deciding the petition and would have no bearing on the pending trial.
Arora had initially sought the quashing of the FIR registered against him under the Prevention of Corruption Act, the challan and the order refusing to discharge him. During the hearing, however, his counsel confined the prayer to seeking a fresh/de novo investigation by an independent agency.
The petition had sought quashing of FIR registered on October 15, 2022, under the Prevention of Corruption Act at Vigilance Bureau, Flying Squad-I police station in Mohali, along with all subsequent proceedings arising from it. Directions were also sought for quashing the final report/challan dated December 3, 2022, and the order dated August 29, 2023, passed by Mohali Special Judge dismissing Arora’s application seeking discharge from the case. But his counsel confined the prayer fresh/de novo investigation.
The Bench, during the course of hearing, was told that that the FIR was lodged on a complaint dated October 14, 2022, submitted by an “AIG” to the Chief Director, Vigilance Bureau, Punjab, who assigned it to a Deputy Superintendent of Police, Vigilance Bureau, for investigation.
The Bench was also told that the petitioner was allegedly caught with currency notes of Rs 50 lakh in the presence of witnesses on October 15, 2022. The car the accused was travelling in, and his mobile phones were taken in possession; the CCTV footage of the parking lot was also obtained.
The petitioner sought a direction for re-investigation on the ground that the investigation had been conducted by an officer subordinate to the complainant. Recording the submissions, the Court noted: “The sole premise based upon which the direction has been sought is that the investigation carried out by an officer subordinate to the complainant is bound to be tainted due to inherent bias in favour of his superior/complainant; it cannot be objective or impartial.”
The Bench noted that the petitioner’s counsel pointed out flaws in the investigation of the case, like failure of the investigating officer to record the conversation between the petitioner and the complainant, “and/or take the help of any other electronic device to collect relevant material, absence of independent witnesses”, and registering the FIR on exactly the same allegations mentioned in the complaint without verification.
Rejecting the contention, Justice Tribhuvan Dahiya held: “Firstly, it stands settled that invalid investigation is not a ground to order re-investigation of the case after the cognizance of offence has been taken, unless miscarriage of justice has been established.”
The Court further held that the lapses pointed out by the petitioner, “even if assumed to be existing, do not make it a case of miscarriage of justice.” “Considering the material collected during the investigation which prima facie indicates the petitioner’s presence at the chosen place to meet the complainant with currency notes – recovered and sealed in the presence of witnesses – it cannot be said the prosecution is without any probable cause, nor can it be termed an outcome of sheer malice.”
The Court added: “It is for the trial Court to ascertain whether ingredients of the alleged offence have been established against the petitioner beyond any reasonable doubt despite the lapses in investigation, if any.”
Reiterating the legal position, the High Court observed: “In line with the settled law, in the instant case also the alleged invalidity of investigation cannot in itself be a ground to seek re-investigation of the case, as the petitioner has not been able to establish any miscarriage of justice.”
On the principal argument advanced by the petitioner, the Court held: “The argument is seemingly misconceived, as it is too farfetched to be accepted that a subordinate officer would always be biased in investigating a complaint filed by his superior, and would act in breach of his responsibility to be fair and impartial. Such a view would be outlandish amounting to drawing a presumption against the professional ethics and duties every officer has to stand by.”
The Court added that “the legislature has deemed it appropriate not to proscribe an investigating officer from investigating his/her superior’s complaint under the CrPC, and this Court finds no justification to hold otherwise.”
The High Court also noted there was no allegation of personal bias or wrongdoing against the investigating officer. “The allegations against the petitioner have been corroborated by the material collected and the statements of witnesses recorded during the investigation carried out. It is a well-known principle that assumptions cannot replace hard facts and, therefore, cannot serve as a basis to order re-investigation of the case either. In the absence of any allegation, much less any tangible material establishing bias, this Court has no reason to believe that the officer would fail in performing his professional duties in accordance with law.”
Concluding, the High Court held: “In the facts of the instant case, as already discussed, it cannot be accepted that investigation is biased and vitiated merely because it has been conducted by an officer subordinate to the complainant.”
