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TMI Blog2024 (6) TMI 1099X X X X Extracts X X X X X X X X Extracts X X X X ..... ase, 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. - HON'BLE MR JUSTICE K. NATARAJAN For the Petitioner : (By Sri. M.S. Shyam Sundar, Senior Counsel For Smt. Vandana P.L., Advocate) For the Respo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the petitioner and four others. Based upon the charge sheet, the trial court took the 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, against all the accused persons, which is under challenge by the accused No. 1. 4. Learned Senior Counsel appearing for the petitioner has seriously contended by challenging charge sheet and taking cognizance of the offence alleging that, there was Income Tax raid by the income tax authorities and they have seized the documents during the raid and subsequently, they took up the matter under investigation. They have to file the proceedings before the court for any undeclared assets and income of the petitioner, but the investigation by the IT department is still pending. IT Department have not concluded and given findings. The proceedings before the income tax authorities under section 135 of Income Tax Act, amounts to judicial proceedings, until they gave findings regarding undeclared assets or income, the ACB police cannot register the FIR. There is insufficient materials collected by them. The IT department sent a letter to the Chief Secretary and in turn, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which is against the section 17 (c) of PC Act. 6. Learned senior counsel further contended that the source report must be independent report and they have to collect the documents and the materials for arriving at the conclusion there is disproportionate assets, but the source report is purely based upon the letter sent by the Income Tax Department to Chief Secretary and proceedings before the IT Department is not concluded. It has to reach a logical end as per Section 135 of the Income Tax Act. Learned senior counsel further contended that if the IT department had given clean chit then how the police will file the charge sheet? The accused can give reply, he can satisfy the IT department, if they have sought any documents. Such being the case, until conclusion of the income tax proceedings, registering the FIR and taking action in the PC Act, is unlawful and erroneous. The genesis lies in the Income Tax Department and they have to probe entire matter and the police cannot probe the same parallelly. 7. Learned Senior Counsel further contended as per the source report shown some Benami assets, but there is no proper details and names of the Benami details. There is no nexus in the m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proportionate to known source of income. Hence charge sheet came to be filed. The other co-accused persons filed application for discharge, which came to be dismissed, except accused No. 3 which was allowed by the Hon'ble Supreme Court for having paid the school fees by way of scholarship. The court is required to quash the proceedings, only if there is no cognizable offence is committed and the proceedings is abuse of process of law and not otherwise. The sanction was accorded by the concerned authorities for prosecuting the petitioner, the validity of the sanction cannot be challenged in this petition, it has to be challenged during the course of trial. Further contended under section 197 of Cr.P.C., permission is not required, hence accused committed offence under sections 13 (1) (d), 13 (1) (e) read with 13 (2) of the PC Act and under Section 109 of IPC is against other accused for abatement. Therefore, the permission under section 197 of Cr. P.C. is not required. There is no flaw in the letter sent by the IT department and source report for passing the order under section 17 of PC Act. The preliminary report was conducted after the FIR. Therefore, prayed for dismissing the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner. 12. The main contention of the learned senior counsel for the petitioner is that there is no preliminary enquiry conducted to verify about the disproportionate assets said to be in possession of the petitioner and if the cognizable offence is made out, the FIR could have been registered by the ACB, thereafter should obtain the permission from the Superintendent of Police under section 17 of the PC Act for the purpose of investigation. But no such preliminary enquiry was conducted and FIR was not registered. However, based upon the report of the income tax officials, case was registered as per the direction of the Superintendent of Police and investigated the matter. Therefore, registering the FIR is not sustainable and investigation is incurable defect. Therefore, proceedings is vitiated. 13. On perusal of the order of ACB dated 5.12.2016 Superintendent of Police, ACB passed order under Section 17 of the PC Act, directing the Deputy Superintendent of Police to register the FIR and investigate the matter. Admittedly, there is no preliminary enquiry conducted and FIR was not registered prior to passing an order to investigate as per section 17 of the PC Act. The very firs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and to register FIR. Thereafter, shall pass the order under Section 17 of PC Act, for investigating the matter. But here in this case, no FIR was registered and based upon the source report, he has accorded the permission under Section 17 proviso 2 of the PC Act. In support of his case, learned counsel relied upon the judgment of the Hon'ble Supreme Court in Bhajan lal's case stated supra. Hon'ble Supreme Court has held at paragraph 128 as under; 128. The conspectus of the above decisions clearly shows that the granting of permission under Section 5-A authorising an officer of lower rank to conduct the investigation is not to be treated by a Magistrate as a mere matter of routine, but it is an exercise of his judicial discretion having regard to the policy underlying and the order giving the permission should, on the face of it, disclose the reasons for granting such permission. It is, therefore, clear in the light of the above principle of law that the Superintendent of Police or any police officer of above rank while granting permission to a non- designated police officer in exercise of his power under the second proviso to Section 5-A(1), should satisfy himself that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the purpose of finding out whether criminal proceedings are to be initiated and the scope thereof must be limited to the examination of persons who have knowledge of the affairs of the person against whom the allegations are made and documents bearing on the same to find out whether there is a prima facie evidence of guilt of the officer, thereafter, the ordinary law of the land must take its course and further enquiry be proceeded with in terms of the Code of Criminal Procedure by lodging a first information report. 15.1. Thus, an enquiry at pre-FIR stage is held to be permissible and not only permissible but desirable, more particularly in cases where the allegations are of misconduct of corrupt practice acquiring the assets/properties disproportionate to his known sources of income. After the enquiry/enquiry at pre-registration of FIR stage/preliminary enquiry, if, on the basis of the material collected during such enquiry, it is found that the complaint is vexatious and/ or there is no substance at all in the complaint, the FIR shall not be lodged. However, if the material discloses prima facie a commission of the offence alleged, the FIR will be lodged and the criminal pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at hand, the registration of the crime would fall foul of the principles laid down by the Apex Court and that of this Court in the afore-quoted judgment. Therefore, on this short ground that the source information report disclosed blatant non-application of mind and non-conduct of preliminary inquiry as is necessary in law only in cases concerning disproportionate assets. 10. In view of the judgment rendered by Hon'ble Supreme Court as well as coordinate benches of this court and looking to the fact of the case, where the superintendent of police have granted permission on 8.1.2024 and directed the Dy.SP to investigate the matter. The said order has been passed just based upon the source report submitted by one Ramakrishna Dy.SP-06. On perusal of the order it does not reveal the application of mind by the SP directing to register and investigate the matter. Just that he has passed the order as per the source report of the Dy.SP-06 and he has authorised to register and investigate the case. But learned SP has not at all applied his mind as to how the said figure was required to be investigated and registered the FIR. The coordinate bench has held in the Balakrishna's case st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erties worth Rs. 5.35 crores, only one item which was worth Rs. 75 lakhs was seized during the raid. But this raid was conducted by the Income tax department and they have already taken up the investigation and intimated to the Chief Secretary of Government of Karnataka. In turn, the source report was prepared by the ACB, but it does not contain the details of the income of the petitioners in respect of other sources and other details with respect of purchasing the landed properties were also not mentioned in the source report and there are no dates for having purchased the property and also the value of the property and sale consideration in the source report. But it was blindly mentioned as 4 properties and worth Rs. 75 lakhs cash and the expenditure was Rs. 1.25 crores and there is no details in the source report, in order to come to the conclusion that there was disproportionate assets in possession of the petitioner, which is more than the known source of income. 16. That apart absolutely there is no mentioning about the details as to what was the assets and other properties? and whether it was movable property declared by the petitioner while joining the service? It is simply ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... late 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. Therefore, as contended by the learned senior counsel for the petitioner, the prosecution cannot be launched and the very investigation is incurable defect. Therefore as per section 461 of Cr.P.C. the trial vitiates. Though learned counsel for the respondent relied upon the various judgments such as; (i) State of Maharashtra Vs Pollonji Darabshow Daruwalla 1987 (Supp) SCC 379 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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