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TMI Blog2023 (4) TMI 978X X X X Extracts X X X X X X X X Extracts X X X X ..... re registration of a first information report, could be conducted and included 'corruption cases' in such category. A preliminary inquiry or probe, we believe, becomes indispensable in a complaint of acquisition of disproportionate assets not only to safeguard the interest of the Accused public servant, if such complaint were lodged with some malice, but also to appropriately assess the quantum of disproportionate assets should there be some substance in this complaint. The complaint that US lodged with the Chief Minister does specifically allege that although AS came from a very humble background, as evident from his Annual Property Return filed at the time of joining IRS, he has managed to amass disproportionate assets of more than 2500 crores contrary to his legal sources of income . One could view it as a tall claim, which is thoroughly unsubstantiated. However, it cannot be wished away because of the revelations of the preliminary inquiry which led to registration of the FIR and have formed part thereof - Moving forward, it is found on perusal of the FIR that although not specifically mentioned, 2004 to 2018 is the check period during which AS and YS have acquire ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... facts of each case, interference could be made in exceptional cases where the records reveal absolutely no material to support even a reasonable suspicion of a public servant having intentionally enriched himself illicitly during the period of his service and nothing other than mala fide is the basis for subjecting such servant to an investigation. We quite appreciate that there could be cases of innocent public servants being entangled in investigations arising out of motivated complaints and the consequent mental agony, emotional pain and social stigma that they would have to encounter in the process, but this small price has to be paid if there is to be a society governed by the Rule of law - While we do not intend to fetter the high courts from intervening in appropriate cases, it is only just and proper to remind the courts to be careful, circumspect and cautious in quashing first information reports resting on mala fide of the nature alleged herein - there are no option but to hold that there are no cogent grounds for quashing the FIR in the present case even on the ground of mala fide. - Criminal Appeal Nos. 646-648 of 2023 (Arising out of SLP (Crl.) Nos. 1703-1705 of 2022 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndering, and that he also held assets which are disproportionate to his known sources of income. 4. Upon the complaint being received, the Chief Minister by a handwritten order directed the Chief Secretary of the State to have the complaint enquired into by the Economic Offences Wing (EOW). Although, the date 14th OCT, 2019 appears just above the handwritten order of the Chief Minister, it is not too clear whether he made such order on 14th October, 2019 or on 15th October, 2019. 5. Be that as it may, vide a forwarding letter dated 21st October, 2019, the complaint was forwarded by the General Administration Department of the State (hereafter 'GAD', for short) to the Economic Offences Wing/Anti-Corruption Bureau (hereafter 'ACB/EOW', for short) for the purpose of conducting inquiry into the allegations leveled therein. Acting in furtherance of the said letter dated 21st October, 2019, the ACB/EOW registered a preliminary inquiry bearing No. P.E.35/2019. 6. Prior to these developments, YS had invoked the writ jurisdiction of the High Court by instituting a writ petition [W.P. (S)6521/2019], essentially questioning a departmental inquiry initiated against h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t at this stage refer in detail to the intervening events of issuance of notice to AS to join the investigation as well as interim orders passed on the writ petitions from time to time. Suffice it to note, in an order dated 6th September, 2021, the High Court observed that there was a dispute with regard to the income of AS and YS and the ACB/EOW was called upon to produce the case diary as well as figures in tabulated form showing income and expenditure for perusal by the Court whether there is disproportionate income or not. 14. Faced with such an order, the State filed an application seeking exemption to produce the case diary and the figures in tabulated form as well as applied for vacation of an earlier order dated 28th February, 2020 whereby the ACB/EOW was restrained from taking coercive steps against AS. The fate of these applications does not clearly appear from the records. However, for the reasons recorded in the impugned judgment and order dated 10th January, 2022, the High Court while allowing WPCR 88/2020 quashed the FIR. In view of the FIR having been quashed, the High Court held that relief sought by YS in WPCR 154/2020 in relation to the FIR had lost its signifi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase erred in law in quashing the FIR on the ground that it was based on probabilities . Criticizing the impugned judgment as wanting in appreciation of the aforesaid basic principle, he urged that the High Court overstepped its limits. 18. Mr. Sibal also contended that in the present case, AS challenged the FIR a few days after the same was registered on 25th February, 2020 and obtained an order from the High Court to the effect that no coercive steps be taken against him. Armed with such an order, AS did not join the investigation despite a notice having been issued. There was no order staying the investigation. Even if the investigation had proceeded, there was no imminent fear of arrest. If indeed, AS and YS do have papers and documents to satisfactorily account for the pecuniary resources and property and that they do not possess assets disproportionate to their known sources of income, such papers and documents could have been produced before the Investigating Officer thereby enabling him to hold that there is no substance in the complaint lodged by US, and then to file an appropriate closure report before the concerned court to be considered in accordance with Law. Howeve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aken by the Court in exercise of its jurisdiction Under Article 226 of the Constitution. 24. Referring to the decision of this Court in Central Bureau of Investigation and Anr. v. Thommandru Hannah Vijayalakshmi @ T.H. Vijayalakshmi and Anr., Mr. Hegde submitted that a similar exercise that was undertaken by the relevant high court was held to be impermissible by this Court. 25. The decisions of this Court in R.P. Kapur v. State of Punjab (1960) 3 SCR 388 and State of Haryana v. Bhajan Lal and Ors. 1992 SUPP. (1) SCC 335 were next cited for highlighting the categories of cases where inherent jurisdiction can and should be exercised by the high courts to quash proceedings; however, having regard to the facts and circumstances of the case presented before the High Court by AS and YS, Mr. Hegde contended that the court ought to have declined interference. 26. Mr. Hegde further relied on the decision of this Court in Rajesh Bajaj v. State (NCT of Delhi)] (1999) 3 SCC 259 for the proposition that if the factual foundation for the offence has been laid in the complaint, the court should not hasten to quash criminal proceedings during investigation stage merely on the premise tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the FIR did not disclose the basic ingredients of establishing an offence Under Section 13(1)(b) read with Section 13(2) of the P.C. Act. The FIR also did not disclose the extent of alleged investment either in figures or in percentage. 31. Referring to the decision in T.H. Vijayalakshmi (supra), it was Mr. Jethmalani's endeavor to show that the investigating agency in that case had set out/specified the extent of disproportionality in a tabular form, in rupees and percentage, in the first information report therein. The High Court, therefore, was not in error when it required the State to produce the case diary as well as figures in tabulated form showing income and expenditure for perusal by the Court by its interim order dated 6th September, 2021. 32. Mr. Jethmalani further urged that no material being there to justify registration of the FIR is borne out from the fact that the State had applied for exemption from complying with the High Court's order dated 6th September, 2021. 33. It was next argued by Mr. Jethmalani that a first information report based on sheer conjectural possibility of finding some more assets in future is wholly impermissible. Law, accordi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the Accused and with a view to spite him due to private and personal grudge . 39. In his rejoinder, Mr. Hegde canvassed that there are no pleadings to this effect in the writ petition filed before the High Court and, therefore, a new case ought not to be allowed to be set up de hors the pleadings. The immediate reaction of Mr. Jethmalani was that the writ petitions are replete with allegations of mala fide, which form the plinth for registration of the FIR as well as the departmental inquiry against YS. 40. Before reserving judgment, we had permitted Mr. Jethmalani to file short written notes of arguments within a week together with a few other relevant documents which he intended to file though not part of the pleadings before the High Court or this Court. 41. The written notes together with documents annexed thereto marked as annexures R/1A to R/1K have been considered. 42. In Part 1 of the written notes, reference has been made to Circular No. 29/2020 of the Central Bureau of Investigation (hereafter 'CBI', for short) providing the m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s: Docs, Chats show how prime Accused was himself 'managing' NAN scam investigation, Baghel issued hit list' to implicate Raman Singh, others') in the web news portal www.opindia.com and direct further hearing in the present case; and/or b) Direct to summon the records pertaining to the 'WhatsApp' Chats relating to the conspiracy to implicate the Respondent Nos. 1 4 from the Enforcement Directorate; and/or c) Direct to summon the records of the Preliminary Enquiry bearing No. 35 of 2019 initiated by the Petitioner-State's EOW/ACB in respect to the complaint made by Respondent No. 2 on 11.10.2019; and/or d) Direct to tag the present special leave petition with W.P. (Crl.) No. 506 of 2021 titled 'Directorate of Enforcement v. Anil Tuteja and Ors.' Pending before this Hon'ble Court; and/or e) Pass such other or further order (s) as may be deemed fit and appropriate by this Hon'ble Court in the facts and circumstances of the present case. 45. We have heard the parties, perused the materials on record, and considered the decisions cited at the bar. 46. The High Court, upon perusal of the FIR and consideration of the argumen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mission of offence Under Section 13(1)(b) read with Section 13(2) of the Act, 1988 for non-submission of APR with the department. The FIR is not disclosing the fact that even not disclosing the APR with the Government what disproportionate income, the Petitioner has earned during the period from 2004 to 2018. 47. Confined to what the High Court has held in the impugned judgment and order, the short question that emerges for a decision is whether the High Court was justified in its interference with the FIR. 48. The additional question that we are called upon to answer in view of the plea of mala fide raised by Mr. Jethmalani and the contents of the application for directions filed on behalf of AS and YS is, whether and to what extent would a court exercising power Under Article 226 of the Constitution or Section 482 of the Code of Criminal Procedures (hereafter 'Cr.P.C.', for short) be justified to quash a first information report registered Under Section 13 of the P.C. Act while the police embarks on an investigation against a public servant particularly in view of what has been laid down in Clause (7) of paragraph 102 of the decision in Bhajan Lal (supra). 49. We ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion. Although an appropriate legislation is in place to prevent the cancer of corruption from growing and developing, wherefore maximum punishment by way of imprisonment for ten years is stipulated, curbing it in adequate measure, much less eradicating it, is not only elusive but unthinkable in present times. Since there exists no magic wand as in fairy tales, a swish of which could wipe out greed, the Constitutional Courts owe a duty to the people of the nation to show zero tolerance to corruption and come down heavily against the perpetrators of the crime while at the same time saving those innocent public servants, who unfortunately get entangled by men of dubious conduct acting from behind the screen with ulterior motives and/or to achieve vested interests. The task, no doubt, is onerous but every effort ought to be made to achieve it by sifting the grain from the chaff. We leave the discussion here with the fervent hope of better times in future. 50. Insofar as the merits of the controversy is concerned, we must necessarily begin with a reading of the relevant provisions of the P.C. Act. Public servant is defined in Section 2(c). It is not disputed that AS as well as YS i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 51. The law of the land abhors any public servant to intentionally enrich himself illicitly during the tenure of his service. Increase in the assets of such a public servant tantamount to constitutionally impermissible conduct and such conduct is liable to be put under the scanner of the P.C. Act. The Constitution Bench of this Court in its decision in Lalita Kumari v. Govt. of U.P. (2014) 2 SCC 1, inter alia, while observing that cases in which preliminary inquiry is to be conducted would depend upon the facts and circumstances of each case, also categorized cases (though not exhaustively) where preliminary inquiry, before registration of a first information report, could be conducted and included 'corruption cases' in such category. A preliminary inquiry or probe, we believe, becomes indispensable in a complaint of acquisition of disproportionate assets not only to safeguard the interest of the Accused public servant, if such complaint were lodged with some malice, but also to appropriately assess the quantum of disproportionate assets should there be some substance in this complaint. 52. In regard to a case of the type under consideration, particularly when the FIR h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assets of more than 2500 crores contrary to his legal sources of income . One could view it as a tall claim, which is thoroughly unsubstantiated. However, it cannot be wished away because of the revelations of the preliminary inquiry which led to registration of the FIR and have formed part thereof. Although it is true that it is for the prosecution to build up a case that AS, as a public servant, amassed such wealth or even wealth of any lesser value that is disproportionate to his known sources of income, and which could not satisfactorily be accounted for by him, while it files the police report, it does not seem to be a requirement of law when the FIR was registered on 25th February, 2020 that facts and figures with exactitude need to form part of a first information report. 55. Moving forward, it is found on perusal of the FIR that although not specifically mentioned, 2004 to 2018 is the check period during which AS and YS have acquired property disproportionate to their known sources of income. There are certain calculations projecting the quantum of money that both AS and YS received towards salaries, interest and value for properties sold. Particulars of immovable prop ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld be scuttled by an Accused taking advantage of inept drafting of such report, this is an area where all the more care and dexterity is called for to prevent many a thing. However, nothing significant turns on the inept drafting of the FIR in this case since it does make out a case of cognizable offence having been committed by AS and YS. Indeed, if at all there are miscalculations arising out of arithmetical errors or misdescription of properties not belonging to AS and YS, they were/are free to point it out while joining the investigation. It is also open to them to point out to the investigating officer that there has been absolutely no suppression or non-disclosure of properties/assets and also that no activity amounting to 'criminal misconduct' had been committed by them. However, they chose to challenge the FIR on the specious ground that the same did not disclose a cognizable offence. 57. Based on our reading of the FIR, we are unable to appreciate the reasons resting whereon the same has been quashed by the High Court. The High Court was of the opinion that (i) the FIR clearly demonstrates that the same is based on probabilities with regard to disproportionate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cerned is empowered Under Section 156 of the Code to investigate. If it does, he has no option but to record the information and proceed to investigate the case either himself or depute any other competent officer to conduct the investigation. The question as to whether the report is true, whether it discloses full details regarding the manner of occurrence, whether the Accused is named, and whether there is sufficient evidence to support the allegations are all matters which are alien to the consideration of the question whether the report discloses the commission of a cognizable offence. Even if the information does not give full details regarding these matters, the investigating officer is not absolved of his duty to investigate the case and discover the true facts, if he can. 61. Thus, it being the settled principle of law that when an investigation is yet to start, there should be no scrutiny to what extent the allegations in a first information report are probable, reliable or genuine and also that a first information report can be registered merely on suspicion, the High Court ought to have realized that the FIR which, according to it, was based on probabilities ought n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9 (nine) months after the FIR was registered, and adopted by the State almost a year later. Since the CBI Circular was not in existence on 25th February, 2020, the FIR in the present case cannot be invalidated by reference to the CBI Circular. It is only just and appropriate that the CBI Circular, having been adopted by the State, would be required to be followed only in respect of registration of first information reports pertaining to cases of acquisition of disproportionate assets, post 12th April, 2021. We, therefore, see no reason to invalidate the FIR for alleged breach of the CBI Circular. 65. We, thus, answer the first question by holding that the High Court was not justified in its interference with the investigative process and committed an error of law in quashing the FIR on the grounds it did. 66. To answer the second question, the challenge to the FIR on the ground that it is vitiated by mala fides is taken up for consideration. 67. Allegations of ulterior motives at the behest of the political dispensation in power in the State and direction given by the Chief Minister to the Economic Offences Wing to conduct an inquiry, which is per se violative of the law, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rmatively pleaded and proved. However, no foundation in that behalf has been laid and naturally so, the High Court even did not examine whether exception could have been taken to the FIR on the ground of mala fide. 72. Secondly, neither the head of the political executive (the incumbent Chief Minister) nor that of the administrative executive (the Chief Secretary) was personally arrayed as a party to any of the proceedings. Now, law is well-settled that the person against whom mala fide or bias is imputed should be impleaded as a party Respondent to the proceedings eo nomine and that in his/her absence no inquiry into the allegations can be made. This is what the decision in State of Bihar v. P.P. Sharma 1992 Supp. (1) SCC 222 lays down. Having regard thereto, since the incumbent holding the office of Chief Minister of the State against whom mala fide is alleged is not on record, we are loath to attach any importance to the allegations of mala fide even if there be any. 73. Thirdly, it must be remembered that when an information is lodged at the police station and an offence is registered in respect of a disproportionate assets case, it is the material collected during the in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aintain probity in the system of governance as well as to ensure that societal pollutants are weeded out at the earliest, it would be eminently desirable if the high courts maintain a hands-off approach and not quash a first information report pertaining to corruption cases, specially at the stage of investigation, even though certain elements of strong-arm tactics of the ruling dispensation might be discernible. The considerations that could apply to quashing of first information reports pertaining to offences punishable under general penal statutes ex proprio vigore may not be applicable to a P.C. Act offence. Majorly, the proper course for the high courts to follow, in cases under the P.C. Act, would be to permit the investigation to be taken to its logical conclusion and leave the aggrieved party to pursue the remedy made available by law at an appropriate stage. If at all interference in any case is considered necessary, the same should rest on the very special features of the case. Although what would constitute the special features has necessarily to depend on the peculiar facts of each case, interference could be made in exceptional cases where the records reveal absolute ..... X X X X Extracts X X X X X X X X Extracts X X X X
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