The foundation of a just criminal justice system rests on the principle of a fair investigation and trial. In India, the Supreme Court has consistently championed the view that the police’s role during an investigation is not merely to amass evidence for a conviction but to unearth the truth impartially. This legal mandate imposes a clear duty on the Investigating Officer (IO) to collect and record both inculpatory (incriminating) and exculpatory (favourable to the accused) evidence, ensuring a balanced view of the facts.
This comprehensive article explores the legal perspective, drawing from judicial precedents, on why recording exculpatory evidence, including the accused’s version, is a fundamental requirement of a lawful and unbiased investigation and cannot be construed as misconduct.
The Constitutional and Legal Mandate for Fair Investigation:
The right to a fair investigation is an intrinsic part of the fundamental right to life and personal liberty guaranteed under Article 21 of the Indian Constitution. A lopsided or partial investigation directly infringes upon this right.
Article 21 of the Indian Constitution, which mandates that no person shall be deprived of life or personal liberty except according to procedure established by law, forms the bedrock of individual rights against the State, and the Supreme Court’s expansive interpretation has transformed it into a guarantee of substantive justice.
This single constitutional provision, initially focused on basic life and liberty, has been judicially evolved to encompass fundamental procedural safeguards essential for a free and dignified existence, including the rights to a fair trial, a fair investigation, and general procedural fairness, all aimed at protecting a person from arbitrary state action and ensuring the rule of law permeates every aspect of the criminal justice system.
The Principle of Balanced Investigation:
The Supreme Court, in numerous rulings, has emphasized that the investigation process must be characterized by honesty, impartiality, and efficiency. The police function as an agency of the State, and their actions must, therefore, be directed towards justice, not simply prosecution.
A landmark case underscoring this principle is Vinay Tyagi v. Irshad Ali (2013) 5 SCC 762. The Court unequivocally held that the Investigating Officer is duty-bound to collect, preserve, and record both inculpatory and exculpatory evidence. The failure to do so risks rendering the entire investigation “partial or unlawful.” This judicial pronouncement cemented the constitutional obligation of police officers to be truth-seekers rather than merely case-makers.
Judicial precedents have firmly established that the right to a fair investigation is an essential facet of the fundamental rights guaranteed under the Indian Constitution. In Nirmal Singh Kahlon v. State of Punjab [(2009) 1 SCC 441], the Supreme Court affirmed that fair investigation and trial are integral to preserving the rights of the accused under Article 21.
Similarly, in Sathyavani Ponrani v. Samuel Raj [2010 (4) CTC 833], the Madras High Court underscored that free and fair investigation and trial are enshrined in Articles 14, 21, and 39-A. This right applies equally to both the accused and the victim, ensuring that justice is not compromised by bias, delay, or manipulation, and forms a cornerstone of the broader doctrine of Rule of Law.
Similarly, in Manu Sharma v. State (NCT of Delhi) (2010) 6 SCC 1, the Supreme Court emphasized that “the duty of the investigating agency is not merely to bolster up a prosecution case but to bring out the real unvarnished truth.” Suppression of material that may favour the accused distorts justice and violates Article 21 of the Constitution, which guarantees a fair procedure.
The act of recording the accused’s explanation during an investigation is a crucial step toward objectivity, not misconduct, as it facilitates the collection and unbiased assessment of all material. This principle of objective scrutiny was affirmed by the Supreme Court in cases like Union of India v. Prafulla Kumar Samal (1979), which emphasized the imperative for investigating agencies to assess all evidence objectively before submitting a final report or framing charges.
Furthermore, in State of Gujarat v. Kishanbhai (2014), the Court explicitly directed the training of investigating officers to handle both incriminating and exculpatory evidence with equal seriousness, underscoring that deliberately overlooking material favourable to the accused constitutes a subversion of justice and violates the constitutional guarantee of fair procedure.
International Perspective on Fair and Balanced Investigation:
Globally, the duty of investigators to record both inculpatory and exculpatory evidence is recognized as a fundamental aspect of fair trial rights. Under Article 6 of the European Convention on Human Rights (ECHR), the European Court of Human Rights has repeatedly emphasized that a fair investigation forms part of the broader right to a fair trial.
In Edwards v. United Kingdom (1992) 15 EHRR 417, the Court held that withholding or failing to record evidence favourable to the defence constitutes a violation of fair trial guarantees. Similarly, in the United States, the landmark ruling in Brady v. Maryland (1963) 373 U.S. 83 established the “Brady Rule,” mandating prosecutors to disclose any evidence favourable to the accused, as suppression of such evidence infringes the Due Process Clause.
These international precedents highlight a shared global ethos – that justice cannot coexist with selective truth. Indian jurisprudence, in consonance with these principles, continues to evolve toward embedding transparency, neutrality, and accountability as the touchstones of lawful investigation.
Recording the Accused’s Version – Not Misconduct:
The recording of the accused’s version or any statement they make during the investigation, provided it is non-confessional (i.e., not a confession of guilt to a police officer, which is generally inadmissible under Section 23(1) of the Bharatiya Sakshya Adhiniyam, 2023), that supports their defense or creates doubt about their guilt, must be viewed through the prism of collecting exculpatory evidence.
- Why it’s essential: Such a version, while not being evidence in the strict sense under Section 181 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) for the prosecution, is crucial for the fairness of the investigation. It informs the IO about potential lines of defence, leads to be followed, and possible omissions or contradictions in the prosecution’s own evidence.
- Preventing Suppression: Treating the recording of an accused’s exculpatory statement as misconduct would incentivize the suppression of material favourable to the defence, leading to a biased charge sheet and an unfair trial.
Judicial Precedents Reinforcing the Duty:
Beyond Vinay Tyagi, several other judicial pronouncements highlight the imperative to pursue and document exculpatory facts:
- The Right to a ‘Fair Trial’ and its Concomitant:
The Supreme Court has repeatedly affirmed that the right to a fair investigation is the foundation for the right to a fair trial. In cases like Babubhai v. State of Gujarat (2010) 12 SCC 254, the Court stressed that an investigation that is lopsided, motivated, or designed to suppress the truth cannot be sustained.
The Court’s focus is on whether the investigation was “bonafide and honest.” If the IO deliberately ignores key evidence that could help the accused, the investigation itself becomes vitiated. This judicial scrutiny ensures that police accountability remains high and that the process adheres to legal propriety.
- Mandatory Disclosure and Section 193 BNSS:
Upon concluding the investigation, the police submit a report (charge sheet/final report) under Section 193 of the BNSS to the Magistrate. This report must be accompanied by all documents and statements on which the prosecution proposes to rely, as well as the statements recorded under Section 180 BNSS of all persons whom the prosecution proposes to examine as witnesses.
Crucially, judicial interpretation, particularly in cases dealing with the accused’s right to documents, implies that all material collected during the investigation, including exculpatory material, must be forwarded to the Magistrate.
In Nitya Dharmananda v. State of Delhi (2017) 8 SCC 358, the Supreme Court elaborated on the accused’s right to access documents, holding that the Court, even at the stage of framing of charges, is not debarred from looking into material of “sterling quality” that is withheld by the investigator/prosecutor, thus protecting the accused from the impact of suppressed exculpatory evidence. This implies that the IO’s duty is not only to collect but also to submit all relevant material.
In Pooja Pal v. Union of India (2016) 3 SCC 135, the Supreme Court held that the right to a fair investigation is an integral facet of Article 21 and that any attempt to ignore or suppress exculpatory material amounts to a constitutional violation.
Likewise, in H.N. Rishbud v. State of Delhi (1955) SCR 1150, the Supreme Court underscored that investigation is a vital stage of the criminal process, and its integrity determines the fairness of the subsequent trial. Hence, judicial oversight not only rectifies investigative lapses but also strengthens the credibility of the justice delivery system by ensuring that both prosecution and defence receive equal consideration under the law.
- The Evidentiary Value of Exculpatory Statements:
While a statement to a police officer under Section 180 BNSS cannot be used as substantive evidence, its significance lies in its use by the defence to:
- Contradict a prosecution witness (Section 181 BNSS).
- Demonstrate that the investigation was incomplete or defective due to the failure to follow up on a material exculpatory lead.
Recording the accused’s version as part of the case diary (Section 192 BNSS) or a statement under Section 180 BNSS (if they are being questioned as a person acquainted with the facts and circumstances of the case before formal accusation) acts as a crucial safety valve. Its presence on record confirms that the IO considered the counter-narrative, fulfilling the duty of balanced investigation.
The Way Forward – Institutional and Training Reforms:
To translate these legal principles into everyday policing practice, institutional reforms are necessary. Regular training programs should emphasize that a fair investigation includes documenting evidence that may favour the accused. The National Police Academy and State-level training institutes must integrate modules on ethical investigation, emphasizing neutrality and adherence to constitutional mandates. Introducing mechanisms for independent review of investigations, especially in sensitive or high-profile cases, can also prevent selective recording of evidence. Ultimately, promoting a culture of fairness within policing – where recording exculpatory evidence is seen as a professional obligation rather than misconduct – will elevate both investigative standards and public trust in law enforcement.
Conclusion – Upholding Integrity over Convenience:
The claim that recording the accused’s explanation or exculpatory evidence constitutes misconduct is fundamentally wrong. The Supreme Court, notably in Vinay Tyagi v. Irshad Ali, affirms the core police duty to collect and document all relevant evidence – both incriminating and exculpatory. This mandate promotes police accountability by ensuring an impartial investigation and prevents arbitrary charge-sheeting, reinforcing that only the suppression of favourable facts, not their recording, is a breach of legal duty.
Incorporating exculpatory material is essential to uphold the presumption of innocence and ensure an unbiased investigation that explores all possibilities, including the accused’s version. It simultaneously strengthens judicial scrutiny by providing the court with a complete set of facts for an informed and just decision. The police officer acts as a custodian of truth, not merely an adversary, with the fundamental duty to ensure truth and justice prevail over the pursuit of conviction.
The legitimacy of the criminal justice system rests on the fairness of its process. Aligning investigation with the constitutional promises under Articles 14 and 21 requires transparency and balance from investigators. Recognizing exculpatory facts as an integral part of the investigation reinforces the principle that justice must be seen to be done. This professional integrity and moral courage, prioritizing truth and fairness, ultimately define the true success of an investigation.
