When the Accuser Becomes the Prosecutor

When the Accuser Becomes the Prosecutor: A Constitutional Overview of the Whittling Down of Personal Liberty of An Accused in India

by Aditya Manubarwala[1]

In August 2018, a Constitution Bench of the Supreme Court of India gave a landmark and celebrated verdict in Mohan Lal V. State of Punjab[2] on the human rights regime of India. The Court held that all criminal trials wherein the informant and the investigating officer were the same individuals will stand vitiated on account of the basic principles of free and fair trial being compromised. The tenants of a free and fair trial have over the years been ensconced in the fundamental rights regime of India by creative judicial interpretation which has equated ensuring a free and fair trial as a part and parcel of the Right to Life and Liberty (Article 21 of the Indian Constitution)[3] which in itself is a fundamental right within the Indian Constitutional framework.

However, in a sharply retrograde move, the Supreme Court of India in a recent judgment, Varinder Kumar V. State of Himachal Pradesh[4] has effectively withheld the benefits of the Mohan Lal Case. The benefits of the trial being vitiated in case of the informant and the investigating officer being the same getting extended to the accused have been interpreted in a manner wherein only in cases instituted after the 2018 Mohan Lal case will the trial stand vitiated. In effect, all ongoing trials instituted prior to the Mohan Lal case wherein the investigating officer and the informant are the same individual will continue.

This article intends to critically analyze these aforesaid judgments and highlight how the Varinder Kumar decision will lead to a great travesty of justice in India.

The Mohan Lal Case

This case emanated from a search conducted on the appellant, Mohan Lal, wherein he was found to be in possession of contraband opium and was subsequently convicted by the trial court. This verdict was affirmed by the High Court in appeal. However, and very interestingly, the distinguishing fact which glaringly stood out ignored by both the trial court and the High Court was the fact of the informant and the investigating officer being the same individual. In appeal before the Supreme Court, this issue was conclusively addressed. The Supreme Court correctly held that an informant and investigating officer being the same is the very antithesis of a free and fair trial, which in turn is an intrinsic component of Article 21 of the Constitution of India (Right to Life and Liberty). It was further held that justice has not only be done but also be seen to be done. The prosecution of Mohan Lal was held to be an infraction of the constitutional guarantee of fair investigation and on this ground alone Mohan Lal was allowed to be set free from incarceration.

Varinder Kumar V. State of Himachal Pradesh

The Varinder Kumar case essentially answers the unanswered components of the Mohan Lal case, albeit in the most undesirable form. In Varinder Kumar, the factual matrix pertained to an accused who was in possession of a contraband substance; subsequently he was arrested and convicted, just like Mohan Lal, here too the informant was the same individual as the investigating officer. The only thing for the Supreme Court to do was to exonerate the accused by declaring the trial as standing vitiated. However, the Supreme Court took a completely divergent stance by choosing to disregard the interpretation set out in Mohan Lal. The Supreme Court without attacking the legal principle as laid in Mohan Lal effectively denied passing the benefits of the ratio by interpreting the applicability of the Mohan Lal case in a prospective manner. In essence, the Supreme Court laid down (without much reasoning) that the benefits of the Mohan Lal case would be applicable to only those cases which had been instituted after the date of the declaration of the Mohan Lal judgment, being 16thAugust, 2018. The Court thus excludes the applicability of the ratio of Mohan Lal from all ongoing cases involving the investigating officer and informant being the same individual instituted prior to 16thAugust, 2018 even if the trial is just in its nascent stages. Disturbingly enough, no cogent reasons elucidating the reasons for this view are coherently laid down in the judgment except a cryptic justification pertaining to prospective applicability of law. The justification laid down is that a prospective declaration of law essentially prevents multiplicity of proceedings by desisting the reopening of settled issues.

This assertion in the aforesaid judgment, it is submitted is contrary to established legal principles and will most certainly cause great injustice to an accused’s constitutionally guaranteed right to free and fair investigation. It is submitted that an investigation must not only be required to be fair and judicious but also appear to be fair and judicious. An investigation ought not to be conducted in a manner wherein a genuine apprehension is left in the mind of an accused of his/her trial not being fair and bonafide. The Varinder Kumar case, if anything, only perpetuates this apprehension in the minds of an accused. Article 13 of the Constitution of India states that the State shall not make any law which takes away or abridges the rights conferred by Part III (fundamental rights) of the Constitution of India and any law made in contravention of this clause shall, to the extent of the contravention, be void. The Mohan Lal Judgment leaves no iota of doubt regarding the unconstitutionality of a proceeding whose very foundation is based on vitiation of the right of an accused to free and fair investigation. This being the case, proponents of the Varinder Kumar case could argue that Article 13 of the Indian Constitution has prospective application and not retrospective application. Even if that argument is to be accepted, the Varinder Kumar case still falls fowl of the constitutional mandate since, it excludes even those cases from the mandate of the Mohan Lal case, where there is an ongoing trial. An ongoing trial in essence does not crystallize the fate of the accused, the reasoning of the court in applying the Mohan Lal case prospectively was to prohibit reopening of case and thus prevent multiplicity of litigations. This objective of the court would not in any way fall fowl even if the mandate of Mohan Lal were to be extended upon cases where there was an ongoing trial since the fate of the accused was in no way crystallized.

It is said that those who don’t learn from the mistakes of their past are condemned to repeat the same. Back in the mid 1970’s the Indian Supreme Court came out with one of its most infamous judgments in ADM Jabalpur V. Shivkant Shukla[5] wherein the court upheld a presidential order suspending the rights of a person to approach a court for enforcement of rights conferred by Article 14, 21 and 22 of the Indian Constitution during the Emergency period. This was considered to be one of the darkest eras in the history of the Indian Supreme Court. Years later in an irony of fate, Justice DY Chandrachud writing the majority opinion in the case of ‘Justice K.S. Puttaswamy (Retd) vs. Union of India’[6] (popularly called the right to privacy case) overturned the ADM Jabalpur case, which was authored by his father Justice YV Chandrachud. Justice DY Chandrachud wrote “Dignity is associated with liberty and freedom. No civilized state can contemplate an encroachment upon life and personal liberty without the authority of law. Neither life nor liberty are bounties conferred by the state, nor does the Constitution create these rights”. One wonders if the Supreme Court is headed back to the inglorious ADM Jabalpur era days since the Varinder Kumar case ignores entirely a category of accused whose trial have not concluded and in many cases not even commenced. The question to be deeply contemplated upon is would the effect of this judgment not lead to a denial of the right to personal liberty of the accused?


The Supreme Court of India vide the Varinder Kumar case does no good to the cherished and constitutionally protected right to life ensconced under Article 21. Great disservice is also done to the ideal of personal liberty of an accused who may very well be innocent. It is important to state here to readers not well acquainted with the Indian judicial system that millions of accused remain incarcerated for many years prior to their trial even commencing. India is a country embedded with deep divisions and historical prejudices with many caste and social groups often being at loggerheads with each other. It is in this context this judgment needs to be viewed and condemned. It is not impractical to assume of many cases existing wherein the investigating officer himself acting as an informant against an individual just in order to grind his personal axes and keeping his adversary arrested for years on frivolous charges.

There are also numerous instances where a police officer in order to meet his shoddy and reprehensible ‘department targets’ could easily frame an innocent individual and project him to be guilty by way of his/her purposive and motivated investigation.

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[1] Aditya Manubarwala is serving as a Law Clerk -Cum- Research Assistant to Justice Vineet Saran, Judge, Supreme Court of India. He has previously worked as Special Advisor on International Law & Affairs to the Office of the President of Afghanistan.

[2] Criminal Appeal No. 1880 of 2011 (decided on August 16, 2018)

[3] Zahira Habibullah Sheikh V. State of Gujarat (2004) 5 SCC 353

[4] Criminal Appeal Nos. 2450­2451 of 2010 (decided on February 11, 2019)

[5] (1976) 2 SCC 521

[6] (2017) 10 SCC 1