2024 (6) TMI 1099 - HC - Indian Laws

Cognizance of the offences punishable under Sections 13 (1) (d), 13 (1) (e) read with 13 (2) of the PC Act and under Section 109 of IPC - challenge to charge sheet and taking cognizance of the offence - undeclared assets and income of the petitioner - no preliminary enquiry conducted to verify about the disproportionate assets said to be in possession of the petitioner - HELD THAT - It is well settled by the Hon'ble Supreme Court in order to calculate the disproportionate asset, it is necessary to place the assets and liabilities held by the petitioner or a public servant during joining of the public service and subsequently what was the assets held by him and what was the income earned and expenditure, then only they should ascertain. After ascertaining the same, only then they should come to the conclusion regarding prima facie case or register the FIR and then schedule property is required to pass an order under Section 17 of the PC Act for investigation. Herein this case, the income tax authorities not concluded the investigation and sent letter to the Chief Secretary, in turn the Chief Secretary forwarded the letter to the ACB and ACB immediately registered FIR by preparing alleged source report, which does not contain any details of the property. There is no basic foundation in this case to say that the petitioner was having so much assets and liabilities at the time of joining the service and Subsequently he has amassed the assets, absolutely there is no material place either in the source report or in the FIR or in the charge sheet. Totally blank regarding the assets and liabilities which were declared by the petitioner while joining the service. The prosecution blindly stated, he has amassed the property between 1987 to till date but there is no details in the case records. Therefore, continuing proceedings is nothing but abuse of process of law. Such being the case absolutely there is no ground for framing of charge and proceeding the trial against the petitioner - this petition is allowed.

Summary

Issues Involved:
1. Legality of FIR registration and charge sheet filing by ACB.
2. Requirement of preliminary enquiry before FIR registration.
3. Validity of the source report prepared by ACB.
4. Role and findings of the Income Tax Department.
5. Compliance with legal procedures under the Prevention of Corruption Act and Cr.P.C.

Issue-Wise Detailed Analysis:

1. Legality of FIR Registration and Charge Sheet Filing by ACB:
The petitioner challenged the FIR and charge sheet filed by ACB under Sections 13(1)(d), 13(1)(e) read with 13(2) of the Prevention of Corruption Act, 1988, arguing that the FIR was registered based on a source report without proper preliminary enquiry. The court noted that the Superintendent of Police, ACB, directed the registration of the FIR and investigation without a prior preliminary enquiry, which is a violation of mandatory legal provisions.

2. Requirement of Preliminary Enquiry Before FIR Registration:
The court emphasized the necessity of a preliminary enquiry before registering an FIR in cases involving allegations of disproportionate assets. It cited judgments from the Supreme Court and coordinate benches, which mandate that a preliminary enquiry must be conducted to ascertain if a cognizable offence is disclosed. The court found that no such preliminary enquiry was conducted in this case, making the FIR registration and subsequent investigation procedurally flawed.

3. Validity of the Source Report Prepared by ACB:
The source report prepared by ACB was found to be inadequate as it lacked detailed information about the assets, liabilities, and known sources of income of the petitioner. The court observed that the source report was primarily based on a letter from the Income Tax Department and did not contain independent verification or detailed analysis of the petitioner's financial status. This insufficiency in the source report further invalidated the FIR and investigation.

4. Role and Findings of the Income Tax Department:
The Income Tax Department had conducted a raid and seized documents, cash, and jewelry from the petitioner's house, and their investigation was still pending. The court highlighted that the ACB's actions were premature as the Income Tax Department had not concluded its investigation or provided definitive findings regarding undisclosed assets or income. The court stressed that parallel proceedings by ACB without the conclusion of the Income Tax investigation were inappropriate.

5. Compliance with Legal Procedures Under the Prevention of Corruption Act and Cr.P.C.:
The court scrutinized the procedural compliance under Section 17 of the Prevention of Corruption Act and Section 197 of Cr.P.C. It noted that the Superintendent of Police authorized the investigation without first registering an FIR and conducting a preliminary enquiry, which is against the legal requirements. Additionally, the court found that the sanction for prosecution was not properly obtained, further rendering the proceedings unsustainable.

Conclusion:
The court concluded that the entire criminal proceedings against the petitioner were vitiated due to procedural irregularities, lack of preliminary enquiry, and reliance on an insufficient source report. Consequently, the court quashed the FIR and charge sheet, emphasizing that the prosecution was an abuse of process of law.

Order:
The petition is allowed, and the criminal proceedings in Crime No. 26/2016 in Spl. CC. No. 656/2021 registered by ACB, pending on the file of XXIII Additional City Civil and Sessions Judge, Bengaluru, are hereby quashed.