Police Acting Like Court: Punjab & Haryana HC Slams Haryana Police For Wrong Interpretation Of Law In Corruption Cases, Summons Top Officials

It is strange to note that the police officials are apparently acting like a court of law—releasing case property on superdari and deciding the admissibility of evidence, observed the Punjab and Haryana High Court, while slamming Haryana's Anti-Corruption Bureau for deviating from principles of criminal law.

The Court highlighted that the State's Anti Corruption Bureau (ACB) by wrongly interpretating Bhartiya Sakhya Adhiniyam (BSA) applying it at the stage of investigation, which is only applicable on judicial proceedings.

Justice N.S. Shekhawat noted that ACB is not taking the mobile phone into possession which allegedly recorded conversation of the incident, and returning them to the complainant after transferring the file in routine manner by conducting superdari proceedings like conducted by Court.

While hearing a bail in a corruption case, the Court remarked that it is"most conspicuous example of a unique criminal investigation, where the ADGP, Superintendent of Police and the Investigating Officer of the Anti Corruption Bureau, who are entrusted with the task of investigating the corruption cases fairly and impartially, are deviating from the established procedure of law and have projected their own interpretation of law before this Court."

The Court pointed the State counsel, on instructions from ADGP, ACB, Haryana as well as Superintendent of Police, submitted that the phones, in which the recording was made, did not constitute the case property initially and later on, it became a case property. 

The State counsel further submitted that since the phone was not a case property, it was legally returned to the complainant and in all cases, the same procedure is being followed by Anti Corruption Bureau in Haryana.

Adding that there was no requirement of taking the mobile phone in possession and it is rightly returned to owner by ACB in routine manner, the State counsel relied on "Section 57 of BSA with regard to the admissibility of the evidence and submitted that the CD, which was prepared from the phone, i.e., the original device, would also constitute "primary evidence".

The Court rejected the submissions and opined that, "the provisions of Bharatiya Sakshya Adhiniyam, 2023 only apply to all judicial proceedings in or before any Court exclusively and it can never be expected that the provisions of BSA, 2023 would be made applicable to the process of investigation, as unfortunately canvassed before this Court."

The Court said that apparently a futile attempt has been made by the officials of ACB to mislead the Court by completely overlooking the provisions of BSA/Indian Evidence Act.

Referring to Section 497 of the BNSS, the Court said  "once a property is taken into possession by the police and is produced before the criminal Court, the Court may make orders for the proper custody of such property, pending conclusion of the investigation, inquiry or trial. However, the aforesaid three officials were completely ignorant of the provisions of BNSS as well as BSA and unfortunately are handling the serious matters/cases, which were registered under the provisions of Prevention of Corruption Act, 1988," it added.

The judge observed that return of mobile phone (which recorded the evidence) by the officials of Anti Corruption Bureau may not only lead to acquittal of the accused in several cases registered under the provisions of PC Act, but may also cause serious prejudice to the rights of the aggrieved/victim of crime of financial frauds/corruption.

The Court said the conduct is not only bordering contempt but also constituted a criminal offence and  prima facie opined that the above said three officials are liable to be prosecuted under various provisions of the Bharatiya Nyaya Sanhita, 2023.

Stating that since the "three officials (ADGP, Superintendent of Police and the Investigating Officer, ACB)  have utterly failed to perform their statutory duty of monitoring the investigations in various cases registered under the provisions of the Prevention of Corruption Act, 1988 in a fair and impartial manner, the Court directed the Home Secretary, Haryana, to file an affidavit with regard to the following facts:”

(i) List and details of cases registered by the Anti Corruption Bureau in the last two years in the State of Haryana, in which the case property/other electronic and documentary evidence has been returned on his own by the IO/SHO himself.

(ii) Whether any instructions have been issued by the officials of Anti Corruption Bureau with regard to returning of case property/documentary evidence and other evidence, in violation of provisions of Section 497 of BNSS.

(ili) Provide the copy of instructions issued by any official of the State Government/Haryana Police/Rules/Law, which permits the SHO/IO/any other police officer to judge the admissibility of "evidence" (as defined in BSA), as argued before this Court on behalf of the State of Haryana.

(iv) Provide copy of instructions issued by any Government official/police official/which permit the police to act like a Court for issuance of superdari orders/releasing of the case property.

The Court added that before proceeding against the ADGP, Anti Corruption Bureau, the SP (ACB) Karnal and Investigating Officer of the present case, will be provided an opportunity to explain their stand and also  asked to remain present on next date.

The Court appointed Viond Ghai, Senior Advocate and Preetinder Singh Ahluwalia, as amicus curiae.

Listing the matter for April 28, it directed to send the order to the Home Secretary, Haryana, with a reasonable expectation that the officials/law officers having basic and reasonable knowledge of law shall be attached with the Anti Corruption Bureau, in Haryana at all levels and "the information in this regard shall be shared with the Court on the next date of hearing."

Title: Ashok Kumar Vs. State of Haryana

Mr. Charanjit Singh Bakshi, Advocate (throughVC) for the petitioner.

Mr. Rajiv Sidhu, DAG, Haryana