Power to Investigate Offences

[RAMPRAKASH SINGH]

“Section 78 in The Information Technology Act, 2000
78 Power to investigate offences. -Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), a police officer not below the rank of 94 [Inspector] shall investigate any offence under this Act.”

But, contrary to this, in my case, as per the chargesheet filed by the police the investigating officer is mentioned as “Sub-Inspector”.

What impact does it have on my case? Please elaborate with case law, if any.

[Dr. Ashok Dhamija]

If the investigation is conduced by a police officer of the rank of Sub-Inspector of Police when the legal requirement is that the investigation should be conducted by an officer of the rank of Inspector or above, then such investigation is illegal. However, long back, in the case of H.N. Rishbud v. State of Delhi, AIR 1955 SC 196 : 1955 Cri LJ 526, the Supreme Court held that a defect or illegality in investigation, however serious, has no direct bearing on the competence or the procedure relating to cognizance or trial. It was held that if cognizance is in fact taken on a police report vitiated by the breach of a mandatory provision relating to investigation, there can be no doubt that the result of the trial which follows it cannot be set aside unless the illegality in the investigation can be shown to have brought miscarriage of justice. An illegality committed in the course of investigation does not affect the competence and the jurisdiction of the Court for trial. There have been other judgments, more or less on similar lines.

Coming back to your question, you may bring such illegality to the notice of the court at the initial stage itself, when it takes cognizance of the offence or when the charges are to be framed. If pointed out at such initial stage, the court may put the case on hold and direct the investigating agency to cure the defect in the investigation by directing that it should re-investigated by a competent officer. However, if the trial is completed already, then such trial may not be set aside due to such defect in the investigation unless the illegality in the investigation can be shown to have brought miscarriage of justice.

     

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Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.

[RAMPRAKASH SINGH]

Sir, Is there any specific judgement of Apex court where the court have declared the investigation illegal if the investigation is done by below rank officer? I want this to cite in my case as a reference. Can the court discharge or acquit the accused on the basis of this? Please answer the question keeping in mind that IT Act 2000 is a special law.

[Dr. Ashok Dhamija]

The judgment that I cited earlier is also in respect of a special law. The general principle is the same, i.e., whether the investigation is done by a police officer who is lower in rank than the police officer who is authorized under law. The above case from Supreme Court is on the same issue.

As I mentioned earlier, the investigation is illegal in such case, but the illegality in investigation may not vitiate the proceedings unless miscarriage of justice is shown. Chances of acquittal or discharge in such case would thus depend on showing the miscarriage of justice (and to some extent, also, on whether such defect was pointed out at the initial stage).

As I mentioned, if you show this defect at the initial stage, the court may order a re-investigation by a competent officer, but chances of complete discharge or acquittal would be very limited, unless miscarriage of justice is shown.

You should engage some good lawyer who can properly guide in this regard in detail, especially with regard to the above legal principle.     

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Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.

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