2023 (3) TMI 1363 - HC - Indian Laws

Seeking procurement of investigation papers and documents from the Investigating Agencies at South Africa with respect to the seizures made in India - HELD THAT - It is trite position of law that the accused has no right to have any say as regards the manner and method of investigation. That the accused has no participation as a matter of right during the course of investigation of a case instituted on a police report till the investigation culminates. Accused cannot choose Investigating Agency. That accused persons do not have a say in the matter of appointment of an Investigating Agency. The accused persons cannot choose as to which Investigating Agency must investigate the alleged offence committed by them. Accused has no right with reference to the manner of investigation or mode of prosecution. The Hon ble Supreme Court in the case of Romila Thapar Vs. Union of India Ors. reported in 2018 (9) TMI 1881 - SUPREME COURT has held that neither the accused complainant nor the informant are entitled to choose their own Investigating Agency to investigate the crime in which they are interested. That the accused cannot ask for changing the Investigating Agency or do the investigation in a particular manner including Court monitored investigation. In the said decision the Hon ble Supreme Court has relied on the decisions in the cases of Divine Retreat Centre Vs. State of Kerala 2008 (3) TMI 734 - SUPREME COURT and Narmadabai Vs. State of Gujrat 2011 (4) TMI 1477 - SUPREME COURT . Mr. Khan learned counsel for the Petitioner submitted that the Petitioner though being an accused is only requesting this Court to direct the investigating agency to procure necessary documents from their counter part in South Africa - It clearly appears to us that such request is made only to built up the defence of Petitioner at the inception of investigation by invoking jurisdiction of this Court under Article 226 of the Constitution of India. It is needles to mention that the investigating agency during the course of investigation will collect all the necessary and relevant evidence including the documents thereof. For collecting evidence during the course of investigation the direction by this Court at the behest/request of an accused is not at all necessary. Petition dismissed.

Summary

Issues involved:
Petitioner seeking mandamus for investigating agency to procure documents from South Africa and file them with the Trial Court.

Analysis:
1. The accused's right in the investigation process:
The judgment emphasizes that the accused does not have the right to dictate the manner or method of investigation. The accused lacks the authority to choose the investigating agency or influence the appointment of a specific agency. Citing various Supreme Court decisions, it establishes that the accused cannot determine how the investigation should proceed or the mode of prosecution. Notable cases referenced include Union of India vs. W.N. Chadha, Divine Retreat Centre vs. State of Kerala, Narmadabai vs. State of Gujarat, and Sanjiv R. Bhatt vs. Union of India.

2. Precedents on choosing the investigating agency:
Referring to Romila Thapar vs. Union of India, the judgment clarifies that neither the accused nor other involved parties can select their preferred investigating agency. The accused cannot demand a change in the investigating agency or influence the investigation process, including requesting a court-monitored investigation. The judgment also cites Arnab R. Goswami vs. Union of India, highlighting that the displeasure of the accused regarding the investigation's progress does not warrant transferring the case to the C.B.I., relying on Romila Thapar vs. Union of India.

3. Court's stance on the accused's requests:
The judgment addresses the petitioner's request for the investigating agency to obtain documents from South Africa, stating that such requests are aimed at building the petitioner's defense early in the investigation. It clarifies that the investigating agency is responsible for collecting all necessary evidence during the investigation, and court intervention based on the accused's request is unnecessary. The court emphasizes that adjudicating the defense of an accused in a potential trial is beyond the scope of a petition under Article 226 of the Indian Constitution.

4. Dismissal of the Petition:
Ultimately, the court deems the present petition as misconceived and dismisses it. The judgment concludes that the petitioner's request for court direction to procure documents from South Africa for defense purposes at the investigation's outset is unnecessary, as the investigating agency will collect all relevant evidence during the course of the investigation. The court reiterates that the defense of an accused or prospective accused cannot be settled through a petition under Article 226 of the Indian Constitution.

This detailed analysis of the judgment provides a comprehensive overview of the court's decision regarding the petitioner's request for mandamus in the context of the accused's rights in the investigation process and the court's stance on such requests based on legal precedents and principles.