Selective Leaks During Investigation To Media Affects Rights Of Accused And Victims

It is in the fitness of things that the Supreme Court has in a latest, learned, laudable, latest and landmark judgment titled Dr Naresh Kumar Mangla vs. Smt. Anita Agarwal & Ors. Etc. in Criminal Appeal Nos. 872-873 of 2020 (Arising out of SLP (Cri) Nos. 4935-4936 of 2020) delivered most recently on December 17, 2020 has very rightly, remarkably and reasonably observed that selective disclosures to the media during investigation of crime affect the rights of the accused and the rights of victims. The Bench headed by Justice Dr DY Chandrachud had observed so while cancelling the anticipatory bail granted to in-laws of a deceased woman in a dowry death case. The Court has also further directed the Central Bureau of Investigation (CBI) to further investigate the case.

To start with, this notable judgment authored by Justice Dr Dhananjaya Y Chandrachud for himself, Justice Indu Malhotra and Justice Indira Banerjee sets the ball rolling by first and foremost stating the background in para 2 that, “Applications for anticipatory bail under Section 438 of the Code of Criminal Procedure 1973 (“CrPC”) were filed by four out of five persons who have been named as accused in Case Crime No. 0623 of 2020 registered at Police Station Tajganj, District Agra under Sections 498A, 304-B, 323, 506 and 313 of the Indian Penal Code (“IPC”) and Sections ¾ of the Dowry Prohibition Act, 1961. The husband of the deceased (A-1) is in custody. The applicants for anticipatory bail are the parents-in-law (A-2 and A-3) brother-in-law (A-4) and sister-in-law (A-5) of the deceased. A Single Judge of the High Court of Judicature at Allahabad allowed the applications and granted them anticipatory bail. The father of the deceased is in appeal.” 

While dwelling on the nitty-gritty of the case, the Bench then elucidates in para 3 that, “The marriage between the deceased (Deepti) and Sumit Agarwal took place on 3 November 2014. On 7 August 2020, the appellant lodged a complaint which was registered as a First Information Report (“FIR”) under Section 154 of the CrPC. The FIR, inter alia, records that Deepti was a doctor and the appellant spent an amount in excess of Rs. 1.50 crores for conducting the marriage. It is alleged that even thereafter, Sumit, his parents, brother-in-law and sister-in-law misbehaved with the deceased on account of dowry. The deceased, it is alleged, was pressurized to bring money. The FIR alleges that the appellant had paid money on several occasions by cheque to the in-laws of the deceased. On account of the demand for dowry, it was alleged that shew as severely assaulted in 2017 and the injuries were medically examined at the Government Hospital in Vrindavan. In the meantime, Deepti suffered miscarriages on two occasions and ultimately, adopted a daughter. As regards the incident which eventually led to the unnatural death by the alleged suicide of Deepti, the FIR records that: 

“About 18-19 days ago, all the abovementioned family members of her in-laws badly beaten up Dipti on account of dowry and threatened her that if she informed the family of her parents, she will have to face the consequences. On 03.08.2020, in the morning, Dr S. C. Agarwal telephonically threatened the applicant and demanded the money, and also threatened that either I should fulfill the demand, otherwise, I will be responsible for whatever happens in future. The same day in the afternoon at 3:09 PM and thereafter at 5:31 PM in the evening, Dipti told the applicant and the wife of the applicant about beating up done by them about 18-19 days ago and regarding taking advice by all the people and about threat to her life. At the time, the applicant was in Faridabad and he told her about coming to Agra in the night itself. However, before the applicant could reach in the evening on the same day these dowry greedy people killed Dipti in [xxx] for non-receipt of dowry and non-fulfilment of the demands, and admitted Dipti in their hospital itself in the almost dead condition, in order to save themselves, but she was not allowed any treatment with the intention of killing her. In order to save the life of Dipti, the applicant took her away to the Sarvodaya hospital Faridabad for treatment, at the earliest, in the morning itself, where Dipti died yesterday on 06.08.2020 during treatment. These people have also taken possession of the entire money which was earned by Dipti. Dipti has been killed by Sumit, S.C. Agarwal, Mrs Anita, Amit and Tulika, for dowry with cruel behavior. We performed the last rites of Dipti in Kosi. Since we were busy in the treatment and performing the last rites of Dipti, the applicant has come for filing the report.””

Be it noted, the Bench then observes in para 4 that, “The spouse of the deceased-who is also a doctor by profession, was taken into custody on 7 August 2020. On 10 August 2020, the four respondents (A-2 to A5) sought anticipatory bail before the Sessions Court, Agra (Anticipatory bail application nos. 241/242 of 2020) . By an order dated 21 August 2020, the Sessions Judge, Agra declined anticipatory bail. After adverting to the submission of the accused that a suicide note which was allegedly left behind by the deceased did not contain any allegation of harassment for dowry and the deceased was a partner and investor in the Agra Medical and Cardiac Super Specialty Hospital set up by her father-in-law, the Sessions Judge observed: 

“On the other hand, the documents have been filed on behalf of the complainant side, in which it has been shown that the money was transferred to different transactions. The photocopy of the application dated 01.10.2017 submitted by the deceased to the SHO, Kosikalan, District Mathura, has also been filed, in which it is mentioned about beating up of the deceased by Dr Amit Agarwal, Tulika Agarwal and Anita Agarwal and pushing her down through the stairs with the intention of killing her, and it has been mentioned that she suffered considerable injuries in it. It has also been stated in it that all this has happened at the instance of her father-in-law S.C. Agarwal, who has asked her to bring Rs. 20 lakhs from the family of her parents. In addition, the photocopy of the injury report of the deceased dated 02.10.2017 of the additional district joint hospital, Brindaban has also been filed.””

Truth be told, the Bench then observes in para 5 that, “The Sessions Judge noted that besides naming the accused specifically, there were also allegations against the four respondents in the FIR of torturing the deceased and of making demands for dowry. On 9 September 2020, non-bailable warrants were issued against the four accused. Applications for anticipatory bail were filed on their behalf before the High Court (Criminal Misc Anticipatory Bail Application Nos. 5457/5460 of 2020) . On 22 September 2020, a learned Single Judge, after noting the submissions, posted the applications for anticipatory bail for “further hearing” on 28 September 2020 and protected the accused against arrest in the interim. On 28 September 2020, another Single Judge of the High Court before whom the application was listed noted the fact that the earlier order dated 22 September 2020 had posted the application for “further hearing” and directed the registry to process the listing of the proceedings accordingly. Eventually, anticipatory bail has been granted by the order of the High Court dated 29 September 2020. The reasons on the basis of which the High Court proceeded to grant anticipatory bail are contained in paragraph 20 of the judgment of the High Court which is extracted below:

“20. Having heard the learned counsel for applicants, learned A.G.A. and the learned counsel for the informant and the undisputed position which has emerged from the record as noted above, the fact of the matter is that the applicants are the father-in-law, mother-in-law, Jeth and Jethani of deceased. Secondly, the husband of the deceased is already in jail. Thirdly, the F.I.R. is not to be treated as an encyclopedia of prosecution case but must reflect the basic prosecution case. When judged in the light of above, the F.I.R. prima facie appears to be engineered to implicate the applicants. There is no co-relation in between the various allegations leveled in the F.I.R. The allegations made are general in nature and no specific role has been assigned to any of the above named applicants regarding the alleged demand of dowry. From the perusal of the material on record, particularly the income-tax returns it cannot be said that the applicants are not of sufficient means. The absence of any external injury on the body of the deceased, clearly denotes the bonafide (sic) of applicants.””

For esteemed readers information, the Bench then observes in para 6 that, “Notice was issued on the Special Leave Petitions on 27 October 2020. In pursuance of the order, the State of Uttar Pradesh has entered appearance and is represented by Shri Vimlesh Kumar Shukla, Senior Counsel and Mr Vishnu Shankar Jain as Counsel. The respondent-accused are represented by Mr Sidharth Luthra and Mr R Basant, Senior Counsel. Counter affidavits and written submissions have been filed.”

Most remarkably and most significantly, the Bench then without mincing any words waxes eloquent to state effectively and elegantly in para 20 which forms the cornerstone of this judgment that, “The investigation by the UP Police in the present case leaves much to be desired. We have already extracted in the earlier part of this judgment, the contents of the counter affidavit which have been filed on behalf of the Deputy Superintendent of Police, Agra. The contents of the counter affidavit are at a material divergence with the contents of the charge-sheet filed on 5 November 2020. During the course of the hearing, this Court has been specifically informed by learned Senior Counsel appearing on behalf of the State of Uttar Pradesh, that no investigation was conducted into the allegation in the FIR that the deceased had been murdered. Though much was sought to be made out of the alleged suicide note, at this stage it needs to be emphasised that its authenticity has been seriously disputed by the appellant. As the learned Senior Counsel for the State of Uttar Pradesh informed the Court, the forensic science laboratory referred the matter back in the absence of adequate material to assess the genuineness of the suicide note and upon resubmission, a report is awaited. 

Within a couple of days of the death of Deepti, the alleged suicide note found its way into the newspapers in Agra. This is in fact a circumstance relied upon by the learned Counsel for the accused when they submit that despite the publicity given to the suicide note, the FIR does not impugn its authenticity. The sequence in this case appears to follow familiar patterns. Immediate publicity was given to the alleged suicide note. These examples are now becoming familiar. Selective disclosures to the media affect the rights of the accused in some cases and the rights of victims’ families in others. The media does have a legitimate stake in fair reporting. But events such as what has happened in this case show how the selective divulging of information, including the disclosure of material which may eventually form a crucial part of the evidentiary record at the criminal trial, can be used to derail the administration of criminal justice. The investigating officer has a duty to investigate when information about the commission of a cognizable offence is brought to their attention. Unfortunately, this role is being compromised by the manner in which selective leaks take place in the public realm. This is not fair to the accused because it pulls the rug below the presumption of innocence. It is not fair to the victims of crime, if they have survived the crime, and where they have not, to their families. Neither the victims nor their families have a platform to answer the publication of lurid details about their lives and circumstances. Having said this, we prima facie reject the insinuation that the FIR had not doubted or referenced the suicide note, despite its publication in the news media. The daughter of the appellant had died in mysterious circumstances. The family had completed the last rites. To expect that they should be scouring the pages of the print and electronic media before reporting the crime is a mockery of the human condition. The apprehension of the appellant that A-2 and his family have a prominent social status in Agra and may have used their position in society to thwart a proper investigation cannot be regarded to be unjustified.” 

What’s more, the Bench then holds in para 23 that, “Having regard to the circumstances which have emerged on the record, which have been adverted to in the earlier part of the judgment, we are of the view that it is necessary to entrust a further investigation of the case to the CBI in exercise of the powers of this Court under Article 142 of the Constitution. The conduct of the investigating authorities from the stage of arriving at the scene of occurrence to the filing of the charge-sheet do not inspire confidence in the robustness of the process. A perusal of the charge-sheet evinces a perfunctory rendition of the investigating authorities‟ duty by a bare reference to the facts and the presumption under Section 304B of the IBC when the death occurs within seven years of the marriage. The stance taken by the Deputy Superintendent of Police in the Counter Affidavit, filed a few days after forwarding the charge-sheet, travels beyond the scope of the investigation recorded in the charge-sheet with respect to the veracity of the suicide note, medical examination of injuries and the past miscarriages of the deceased. Critical facts of the money trail between the deceased, her father (the informant), and the accused; and the call history of A2, the informant and the deceased are unexplored. No attempt at custodial interrogation of the applicants was made between the issuance of non-bailable warrants on 9 September 2020 and interim protection from arrest by the High Court granted on 22 September 2020. As noted above, upon questioning during the hearing, the Counsel for the State answered that no investigation on the allegation of murder had been conducted. It would indeed be a travesty if this Court were to ignore the glaring deficiencies in the investigation conducted so far, irrespective of the stage of the proceedings or the nature of the question before this Court. The status of the accused as propertied and wealthy persons of influence in Agra and the conduct of the investigation thus far diminishes this Court‟s faith in directing a further investigation by the same authorities. The cause of justice would not be served if the Court were to confine the scope of its examination to the wisdom of granting anticipatory bail and ignore the possibility of a trial being concluded on the basis of a deficient investigation at best or a biased one at worst.”

Going ahead, the Bench then informs in para 24 that, “Mr K M Nataraj, Additional Solicitor General of India has appeared in these proceedings with Mr Arvind Kumar Sharma, and stated that the CBI would abide by the orders of this Court.”

Finally, in summation, the Bench then holds in para 25 that, “We accordingly allow the appeal and issue the following directions:

(i) The order passed by the Single Judge of the High Court of Judicature at Allahabad allowing the applications for anticipatory bail by the respondents-accused shall stand set aside and the bail granted to them shall stand cancelled; and

(ii) The CBI is directed to conduct a further investigation of the case arising out of case Crime No. 0623 of 2020 registered at Police Station Tajganj, District Agra, dated 7 August 2020.”

No doubt, the sum and substance of this noteworthy judgment as contained in para 20 is that selective leaks during investigation to media is most hazardous to fair investigation and fair trial and it affects the rights of both the accused and the victim also. So it must be avoided always. Para 20 says it all and forms the heart of this extremely laudable and learned judgment! Lawyers, investigating police, media and above all also the Judges must always also remember the essence of what is contained in para 20 so elegantly!

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh

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