Calcutta High Court (Appellete Side)
Ziller Rahim vs Sp on 3 December, 2013
Author: Joymalya Bagchi
Bench: Joymalya Bagchi
C.R.R.2904 of 2013
Ziller Rahim
Vs.
SP, CBI/ACB/Kolkata
Mr.Pratik Bhattacharjee ... ... ... for the petitioner
Mr. Himangshu De
Mr. Mrityunjoy Chatterjee ... ... ... for the CBI
Heard on: 02.12.2013 & 03.12.2013
Judgement on: 03.12.2013.
Joymalya Bagchi, J. Special (CBI) Case No.63 of 2011 (RC No. 28 (A) of
2007 pending before the learned Judge, Special (CBI) Court, Asansol arising out
of RC 0102007A0028 dated 24.07.2007 under section 13(2) read with section
13(1(e) of the Prevention of Corruption Act, 1988 and the order dated 15.07.2013
passed therein rejecting the petitioner's prayer for discharge of the petitioner has
been challenged in the instant case.
The factual matrix of the case is that on the basis of a written complaint
lodged by one Sri S. Bhattacharya, Inspector, CBI/ACB/Kolkata on or about
24.07.2007 alleging that during the investigation of RC 0102007A0036 (hereinafter
stated as RC 36), the residential premises of the petitioner was searched and it
transpired that during the period from 01.01.1996 to 30.07.2003, while he was
working in different capacities in the Department of Posts and finally as
Assistant Post Master, Raniganj, HO Post Office, Raniganj, Asansol Division the
petitioner had amassed assets amounting to Rs.22,21,996.40 in his name or in the
name of his wife and children, which was disproportionate to his known sources
of income and he was not likely to satisfactorily account for the same and
thereby committed offences punishable under section 13(2) read with section
13(1)(e) of the Prevention of Corruption Act, 1988.
Pursuant to investigation, CBI submitted a charge‐sheet against the
petitioner in the instant case and cognizance was taken thereon. Thereafter, the
petitioner prayed for discharge before the trial court. The trial court by an order
dated 15.07.2003 held that there are materials that, prima facie, disclose offences
punishable under section 13(1)(e) read with section 13(2) of the Prevention of
Corruption Act, 1988 and hence rejected such prayer for discharge.
Mr. Bhattacharjee, learned counsel appearing for the petitioner, has
assailed the impugned proceeding on the following issues:‐
(i) The FIR and the consequential investigation was initiated against the
petitioner after he had superannuated from service on 31.07.2003. According to
him, on the date of registration of the FIR, the petitioner was no longer a public
servant and, therefore, could not have been prosecuted for the alleged offences
under the provisions of the Prevention of Corruption Act, 1988.
(ii) He further argued that the investigation conducted by the Inspector of
Police was not in consonance with the proviso to section 17 of the Prevention of
Corruption Act, 1988 and hence, unauthorized and illegal. He relied on State
Inspector of Police, Vishakapatanam vs. Surya Sen Karan Karri, (2006) 7 SCC
172.
(iii) He also contended that the provision of section 4 of the Delhi Special
Police Establishment Act, 1946 was ignored in course of investigation and the
matter was not reported to the Central Vigilance Commission at any material
point of time.
(iv) Finally, the FIR was registered by the CBI without resorting to a
preliminary inquiry, which according to the learned counsel was mandatory. In
this regard, he has relied on P. Sirajuddin ETC. vs. State of Madras ETC. (1970)
Vol.(1) SCC 595, Ashok Tshering Bhutia vs. State of Sikkim, 2011 CRI.L.J. 1770,
and a Constitution Bench decision dated 12.11.13 in Lalita Kunari vs. Govt. of
UP & Ors. (W.P.(Criminal) No.68 of 2008). He submitted that the preliminary
inquiry was of paramount necessity inasmuch as he was not given any
opportunity to satisfactorily account for the assets standing in his name and that
of his family prior to registration of FIR although the same is one of the
ingredients of the offence punishable under section 13(1)(e) of the Prevention of
Corruption Act, 1988.
Mr. De, learned senior counsel appearing for the CBI, has opposed such
prayer. He submitted that the offence was disclosed in the course of investigation
of an earlier crime in RC 36 and upon substantial materials transpiring therefrom
giving rise to a reasonable suspicion as to the commission of the alleged offence,
the instant FIR was registered.
Referring to Chapter IX of the CBI Manual relating to preliminary inquiry,
Mr. De further submitted that the preliminary inquiry though necessary need not
be adhered to in all cases particularly where the materials already collected give
rise to a reasonable ground to suspect the commission of a cognizable offence.
He further submitted that in course of investigation, opportunity was given to
the petitioner to explain away his assets, which he failed to avail.
Mr. De, relying on the case records, produced before this Court the
authorization of the Investigating Officer in terms of proviso to section 17 of the
Prevention of Corruption Act, 1988. Mr. De submitted that failure to report the
matter to the CVC does not vitiate the result of the case. On the issue of the
petitioner having superannuated, Mr. De submitted that the petitioner was a
public servant at the time of commission of the offences and, therefore, the
prosecution of the petitioner cannot be said to be illegal.
I have considered the rival submissions of the parties and considered the
materials on record.
With regard to the first issue raised by Mr. Bhattacharjee that the
petitioner having superannuated could not be subjected to prosecution under the
provisions of the Prevention of Corruption Act, 1988, I find that the check period,
for which the prosecution has been launched, is between 01.01.1996 to 31.07.2003,
a period during which the petitioner was a public servant.
I am, therefore, of the opinion that as the check period, for which the
prosecution under section 13(1)(e) read with section 13(2) of the Prevention of
Corruption Act, 1988 had been initiated, relate to a time frame during which the
petitioner was a public servant, it cannot be said that he would be immune from
prosecution after his superannuation. To accept such logic one must read
something more into the law, which is not there, that is, no investigation
/prosecution can be instituted against a public servant under the Prevention of
Corruption Act, 1988 after his superannuation in respect of any criminal
misconduct committed in course of his employment. Accordingly, such
contention deserves to be rejected.
With regard to the second issue, as to the competence of the Investigating
Officer, i.e. Inspector of Police to investigate the crime, records have been
produced before me, wherein it appears that by letter dated 24.07.2007, the
Superintendent of Police had authorized the Inspector to investigate the alleged
crime under the proviso to section 17 of the Prevention of Corruption Act, 1988.
Mr. Bhattacharjee, however, disputed such authorization and submitted
that it was belatedly procured after search and seizure was effected in the earlier
case resulting in the registration of the present one. According to him, the search
and seizure, which was the foundation of this case having preceded such
authorization, the investigation cannot be said to be in consonance with law. I
am unable to accept such submission of Mr. Bhattacharjee on the premise that the
search and seizure, which was germinating point of this case, did not relate to
the investigation of the instant case. It was conducted in the course of
investigation of an earlier crime, which was registered as RC Case No.36, as
aforesaid, resulting in unravelling of materials disclosing assets standing in the
names of the petitioner and his family members, which were disproportionate to
his known sources of income. Such authorising was promptly issued upon
registration of FIR under section 13(1)(e) of the Prevention of Corruption Act,
1988 for disproportionate assets and therefore, the investigation cannot be called
into question on the ground of incompetence of the investigating agency.
That apart, this is not a case of absolute lack of authorization. Even
complete absence of valid authorization in law has been held to be a mere defect
of investigation which would not per se vitiate investigation and has to be
judged in each case on the anvil of prejudice. Reliance in this regard may be
placed on the ratio of Ashok Tshering Bhutia (supra). In the said report, the
Apex Court held as follows:‐
"8.The issues raised hereinabove are no more res integra.
The matter of investigation by an officer not authorized by
law has been considered by this Court time and again and
it has consistently been held that a defect or irregularity in
investigation however serious, has no direct bearing on the
competence or procedure relating to cognizance or trial
and, therefore, where the cognizance of the case has in fact
been taken and the case has proceeded to termination, the
invalidity of the precedent investigation does not vitiate
the result, unless a miscarriage of justice has been caused
thereby. The defect or irregularity on investigation has no
bearing on the competence of the Court or procedure
relating to cognizance or trial. (Vide H.N.Rishbud & Anr.
v. State of Delhi, AIR 1955 SC 196; Munnalal v.State of
U.P., AIR 1964 SC 28, Khandu Sonu Dhobi & Anr. v. The
State of Maharasthra, AIR 1972 SC 958; State of M.P. v.
Bhooraji & Ors., AIR 2001 SC 3372; (2001 AIR SCW 3313);
State of M.P. v. Ramesh Chand Sharma, (2005) 12 SCC 628;
and State of M.P. v. Virender Kumar Tripathi, (2009) 15
SCC 533).
9. In Kalpnath Rai v. State (Through CBI), AIR 1998 SC 201
: (1997 AIR SCW 4166), a case under the provisions of
Section 20 of Terrorist and Disruptive Activities
(Prevention) Act, 1987, this Court considered the issue as to
whether an oral direction to an officer to conduct
investigation could meet the requirement of law. After
considering the statutory provisions, the Court came to the
conclusion that as oral approval was obtained from the
competent officer concerned, it was sufficient to legalise
the further action.
10. In State Inspector of Police, Vishakhapatnam v. Surya
Sankaram Karri, (2006) 7 SCC 172 : (AIR 2007 SC
(Supp)1860 : 2006 AIR SCW 4576), a two‐Judge Bench of
this Court had taken a contrary view without taking note
of the earlier two‐Judge Bench judgement in Kalpnath Rai
(supra) and held as under:
"When a statutory functionary passes an order, that
too authorizing a person to carry out a public
function like investigating into an offence, an order
in writing was required to be passed. A statutory
functionary must act in a manner laid down in the
statue. Issuance of an oral direction is not
contemplated under the Act. Such a concept is
unknown in administrative law. The statutory
functionaries are enjoyed with a duty to pass
written orders. However, the Court taking note of
subsequent proceedings recorded its conclusions as
under:
'It is true that only on the basis of illegal
investigation a proceeding may not be quashed
unless miscarriage of justice is shown, but in this
case as we have noticed hereinbefore, the
respondent had suffered miscarriage of justice as
the investigation made by PW 41 was not fair'."
11. In the instant case, the officer has mentioned in the FIR itself that he had orally been directed by the Superintendent of Police to investigate the case. It is evident from the above that the judgments in Kalpnath Rai (AIR 1998 SC 201 : 1997 AIR SCW 4166) (supra) and Surya Sankaram Karri (AIR 2007 SC (Supra) 1860 : 2006 AIR SCW 4576) (supra) have been decided by two‐Judge Benches of this Court and in the latter judgement, the earlier judgment of this Court in Kalpnath Rai (supra) has not been taken note of. Technically speaking it can be held to be per incuriam. There is nothing on record to show that the officer's statement is not factually correct. We have no occasion to decide as which of the earlier judgments is binding. It is evident that there was a direction by the Superintendent of Police to the officer concerned to investigate the case. Thus, in the facts and circumstances of the case, the issue as to whether the oral order could meet the requirement of law remains merely a technical issue. Further, as there is nothing on record to show that the investigation had been conducted unfairly, we are not inclined to examine the issue further."
It would appear from paragraph 11 of the said report that the ratio in Sankaran Karri (relied upon by the petitioner) has been held to be technically per incuriam.
For the aforesaid reason, I am unable to accept the contention of Mr. Bhattacharjee that there was no authorization of the Investigating Officer to investigate the offences in this case or that such authorization was invalid in law and per se vitiated the impugned proceeding.
Second objection raised by Mr. Bhattacharjee is that the aforesaid authorisation was not a part of the charge sheet submitted before the trial court. It is settled law that the prosecution is entitled to rely on additional papers during trial other than what has been submitted along with the police report under the provisions of 173(5) of the Code of Criminal Procedure, 1973. Hence, absence of such authorisation from the documents accompanying the police report under section 173(5) of the Code would not preclude the prosecution from relying on the same after giving a copy thereof to the accused during trial. Thirdly, Mr. Bhattacharjee referred to section 4 of the Delhi Police Establishment Act, 1946 and argued that the commencement of investigation and/or the filing of the police report in conclusion thereof without prior consent of the Central Vigilance Commission rendered the impugned prosecution illegal. Section 4 of the Delhi Special Police Establishment Act reads as follows:
"4. Superintendence and administration of special police establishment. -
(1) The superintendence of the Delhi Special Police Establishment shall vest in the Central Government.
(2) The administration of the said police establishment shall vest in an officer appointed in this behalf by the Central Government who shall exercise in respect of that police establishment such of the powers exercisable by an Inspector‐General of Police in respect of the police force in a (State), as the Central Government may specify in this behalf."
A bare perusal of the said provision would show that superintendence of investigation conducted by the officers of the Delhi Special Police Establishment shall vest in the Central Vigilance Commission constituted under Section 3 of the said Act. It, however, does not cast any express duty on the officers of the force to take prior permission from the Commission for the purpose of registration of the first information report or for filing of the police report in conclusion of such investigation. The words 'superintendence', 'administration of such police establishment' in sub‐section (1) and sub‐section (3) respectively of the said provision has to be read in a generic sense relating to overall superintendence, control and administration of the investigating agency under the Act. I am unable to accept the contention of Mr. Bhattacharjee that the said provision of law must be read to cast a mandatory duty upon the members of the force to seek prior permission for registration of a first information report or submission of police report with regard to offences under the Prevention of Corruption Act, 1988 investigated in exercise of powers under the said Act. Similar issue (although prior to the incorporation of the aforesaid provision in the Delhi Special Police Establishment Act) had fallen for decision before the Apex Court in the case of Union of India vs. Prakash P. Hinduja & another, 2003 (6) SCC 195 wherein the Apex Court held that the requirement of taking consent of the Central Vigilance Commission before filing of a police report is to be understood as a means to ensure fair investigation and cannot be a ground to quash the charge sheet which otherwise discloses the ingredients of alleged offence merely on such score. The ratio of the aforesaid decision would apply with equal force in interpreting the provision of Section 4 of the Delhi Special Police Establishment Act, 1946 which was introduced as a consequence of the judicial mandate in Vineet Narain vs. Union of India and Anr., 1998 (1) SCC 226. I am, therefore, of the opinion that neither the general expressions used in the aforesaid provision nor the ratio in Prakash P. Hinduja (supra) be construed to mean that a statutory duty is cast on the officers of CBI to mandatorily take prior consent in all cases for registration of FIR or for filing of police report upon conclusion of investigation. It merely provides for overall supervision, control and administration by the Commission over the investigating agency and nothing more.
Finally, coming to the issue as to the necessity of holding a preliminary enquiry prior to registration of FIR, Mr. Bhattacharjee has strongly relied on P. Sirajuddin (supra) to support his contention that in the absence of preliminary enquiry. registration of first information report in respect of an offence under Section 13(1)(e) of the Prevention of Corruption Act is bad in law. He asserted that failure on the part of the accused to satisfactorily account for the properties in his possession is an ingredient of offence and, therefore, an opportunity ought to be given to him prior to registration of the first information report in course of such preliminary enquiry. In P Sirajuddin (supra) the Apex Court while dealing with a case under the Prevention of Corruption Act, inter alia, had observed as follows:
"17. In our view the procedure adopted against the appellant before the laying of the first information report though not in terms forbidden by law, was so unprecedented and outrageous as to shock one's sense of justice and fairplay. No doubt when allegations about dishonesty of a person of the appellant's rank were brought to the notice of the Chief Minister it was his duty to direct an enquiry into the matter. The Chief Minister in our view pursued the right course. The High Court was not impressed by the allegation of the appellant that the Chief Minister was moved to take an initiative at the instance of a person who was going to benefit by the retirement of the appellant and who was said to be a relation of the Chief Minister. The High Court rightly held that the relationship between the said person and the Chief Minister, if any, was so distant that it could not possibly have influenced him and we are of the same view. Before a public servant, whatever be his status, is publicly charged with acts of dishonesty which amount to serious misdemeanour or misconduct of the type alleged in this case and a first information is lodged against him, there must be some suitable preliminary enquiry into the allegations by a responsible officer. The lodging of such a report against a person, specially one who like the appellant occupied the top position in a department, even if baseless, would do incalculable harm not only to the officer in particular but to the department he belonged to, in general. If the Government had set up a Vigilance and Anti‐Corruption Department as was done in the State of Madras and the said department was entrusted with enquiries of this kind, no exception can be taken to an enquiry by officers of this department but any such enquiry must proceed in a fair and reasonable manner. The enquiring officer must not act under any preconceived idea of guilt of the person whose conduct was being enquired into or pursue the enquiry in such a manner as to lead to an inference that he was bent upon securing the conviction of the said person by adopting measures which are doubtful validity or sanction. The means adopted no less than the end to be achieved must be impeccable. In ordinary departmental proceedings against a Government servant charged with delinquency, the normal practice before the issue of a charge‐sheet is for some one in authority to take down statements of persons involved in the matter and to examine documents which have a bearing on the issue involved. It is only thereafter that a charge‐sheet is submitted and a full‐scale enquiry is launched. When the enquiry is to be held for the purpose of finding out whether criminal proceedings are to be restored to the scope thereof must be limited to the examination of persons who have knowledge of the affairs of the delinquent officer and documents bearing on the same to find out whether there is prima facie evidence of guilt of the officer. Thereafter the ordinary law of the land must take its course and further inquiry be proceeded with in terms of the Code of Criminal Procedure by lodging a first information report."
In Ashok Tshering Bhutia (supra) the Apex Court has held as follows:
"6. This Court in P. Sirajuddin etc. v. The State of Madras etc., AIR 1971 SC 520; and State of Haryana & Ors. v. Ch. Bhajan Lal & Ors., AIR 1992 SC 604 :(1992 AIR SCW 237) has categorically held that before a public servant is charged with an act of dishonesty which amounts to serious mis‐demeanor and an FIR is lodged against him, there must be some suitable preliminary enquiry into the allegations by a responsible officer. Such a course has not been adopted by the prosecution though the law declared by this Court is binding on everyone in view of the provisions of Article 14 of the Constitution, which would by all means override the statutory provisions of the Cr.P.C. and such an irregularity is not curable nor does it fall within the ambit of Section 465 Cr.P.C. However, as the issue is being raised first time before this Court, it is not worth further consideration. More so, the aforesaid observations do not lay down law of universal application." (emphasis supplied) A Constitution Bench in the case of Lalita Kumari (supra), in its judgment dated 11.11.2013 endorsed the ratio in P. Sirajuddin (supra) and held that cases of corruption are ordinarily an exception to the mandatory rule of immediate registration of FIR. The Apex Court has held as follows:‐ "108 In the context of offences relating to corruption, this Court in P. Sirajuddin (supra) expressed the need for a preliminary inquiry before proceeding against public servants."
Finally it laid down the following guidelines:‐ "111. In view of the aforesaid discussion, we hold:
i) Registration of FIR is mandatory under Section 154 of the Code, if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation.
ii) If the information received does not disclose a cognizable offence but indicates the necessity for an inquiry, a preliminary inquiry may be conducted only to ascertain whether cognizable offence is disclosed or not.
iii) If the inquiry discloses the commission of a cognizable offence, the FIR must be registered. In cases where preliminary inquiry ends in closing the complaint, a copy of the entry of such closure must be supplied to the first informant forthwith and not later than one week. It must disclose reasons in brief for closing the complaint and not proceeding further.
iv) The police officer cannot avoid his duty of registering offence if cognizable offence is disclosed. Action must be taken against erring officers who do not register the FIR if information received by him discloses a cognizable offence.
v) The scope of preliminary inquiry is not to verify the veracity or otherwise of the information received but only to ascertain whether the information reveals any cognizable offence.
vi) As to what type and in which cases preliminary inquiry is to be conducted will depend on the facts and circumstances of each case. The category of cases in which preliminary inquiry may be made are as under:
a) Matrimonial disputes/family disputes
b) Commercial offences
c) Medical negligence cases
d) Corruption cases
e) Cases where there is abnormal delay/laches in initiating criminal prosecution, for example, over 3 months delay in reporting the matter without satisfactorily explaining the reasons for delay.
The aforesaid are only illustrations and not exhaustive of all conditions which may warrant preliminary enquiry.
vii) While ensuring and protecting the rights of the accused and the complainant, a preliminary inquiry should be made time bound and in any case it should not exceed 7 days. The fact of such delay and the causes of it must be reflected in the General Diary entry.
viii) Since the General Diary/Station Diary/Daily Diary is the record of all information received in a police station, we direct that all information relating to cognizable offences, whether resulting in registration of FIR or leading to an inquiry, must be mandatorily and meticulously reflected in the said Diary and the decision to conduct a preliminary inquiry must also be reflected, as mentioned above." (emphasis supplied) The Bench, therefore, held that the necessity to hold preliminary inquiry would depend upon the facts of each case.
In corruption cases preliminary enquiry may be resorted to prior to registration of FIR in appropriate cases particularly when facts are either incomplete or hazy so that a public servant is not unfairly harassed adversely affecting the morale of the person in particular and the cadre in general. However, neither in P Sirajuddin (supra) nor in Lalita Kumari (supra), the Apex Court has laid down any inflexible rule of law that registration of FIR straightaway in corruption cases without resorting to preliminary enquiry would vitiate the ensuing prosecution and that the same has to be quashed on that score alone. Ashok Tshering Bhutia (supra) is not a binding precedent of universal application on this issue as would be evident from the observation to that effect in paragraph 6 of the report. Preliminary enquiry has an enabling purpose, that is, to arrive at a reasonable suspicion as to commission of an offence for commencement of investigation. It may be necessary where the source of information is dubious or unknown (e. g. anonymous source) or where facts are incomplete and hazy and does not disclose all ingredients of an offence. However, where the informant is identifiable and his intentions are bonafide and the ingredients of the offence are disclosed, there is no necessity to resort to a preliminary enquiry prior to registration of FIR. In Lalita Kumari (supra) it has been held that mandatory registration of FIR is the rule and resorting to preliminary enquiry is an exception. In paragraph 111 (IV) of the report it is laid down that the necessity of such enquiry would depend on the facts of each case. Some species of cases, e. g. corruption cases have been illustratively enumerated as exceptions to the rule. However, such exceptions are prefaced with the expression "may" and not "shall" clearly making it evident that even in those categories discretion is vested in the investigating agency whether to resort to such enquiry prior to registration of FIR or not. The said judgment cannot, therefore, be read as an authority for the proposition that in all cases falling in the aforesaid enumerated exceptions e. g. corruption cases, holding of preliminary enquiry is a mandatory pre‐requisite and no FIR can be registered even in appropriate cases without resorting to such enquiry. In such legal backdrop, let me consider whether registration of FIR in the instant case without resorting to preliminary enquiry was so unfair, unjust or arbitrary so as to render the resultant prosecution invalid. The factual matrix of the case shows that the petitioner was already facing an investigation in respect of an offence punishable under Section 13(1)(d) of the Prevention of Corruption Act, 1988. In course of such investigation, the Investigating Agency conducted a search at the premise of the petitioner. Such search resulted in unravelling of substantial unaccounted for properties in his possession giving rise to a reasonable belief that it would be unlikely for him to satisfactorily account for the same from his known sources of income. Hence, the Investigating Officer of the earlier case without further enquiry lodged a complaint with the Superintendent of Police resulting in the registration of the instant FIR. As the FIR in the present case is a product of and is founded on the investigation in an earlier case, I am of the view that it was redundant to embark on a preliminary enquiry for further verification and a prompt registration of first information report in the instant case cannot be said to be either illegal or so unfair so as to cause prejudice to the petitioner. No doubt the provisions of the CBI Manual which are binding on the agency require the latter to register preliminary enquiries in appropriate cases. However, a perusal of such provision would make it amply clear that it is not a sine qua non in all cases. Chapter IX of the CBI Manual relates to preliminary enquiries.
Paragraph 9.1 lays down the cases in which a preliminary enquiry has to be resorted to.
Paragraph 9.1 reads as follows :‐ "When, a complaint is received or information is available which may, after verification as enjoined in this Manual, indicate serious misconduct on the part of a public servant but is not adequate to justify registration of a regular case under the provisions of Section 154 Cr.P.C., a Preliminary Enquiry may be registered after obtaining approval of the Competent Authority. Sometimes the High Courts and Supreme Court also entrust matters to Central Bureau of Investigation for enquiry and submission of report. In such situations also which may be rare, a 'Preliminary Enquiry' may be registered after obtaining orders from the Head Office. When the verification of a complaint and source information reveals commission of a prima facie cognizable offence, a Regular Case is to be registered as is enjoined by law. A PE may be converted into RC as soon as sufficient material becomes available to show that prima facie there has been commission of a cognizable offence. When information available is adequate to indicate commission of cognizable offence or its discreet verification leads to similar conclusion, a Regular Case must be registered instead of a Preliminary Enquiry. It is, therefore, necessary that the SP must carefully analyse material available at the time of evaluating the verification report submitted by Verifying Officer so that registration of PE is not resorted to where a Regular Case can be registered. Where material or information available clearly indicates that it would be a case of misconduct and not criminal misconduct, it would be appropriate that the matter is referred to the department at that stage itself by sending a self‐ contained note. In such cases, no 'Preliminary Enquiry' should be registered. In cases, involving bank and commercial frauds, a reference may be made to the Advisory Board for Banking, Commercial & Financial Frauds for advice before taking up a PE in case it is felt necessary to obtain such advice."
The aforesaid paragraph shows that a preliminary enquiry is to be resorted to when the complaint received or information which is available with the Bureau though may indicate serious misconduct on the part of a public servant, is not adequate to justify registration of regular case under the provision of Section 154 of the Code of Criminal Procedure. However, when information available is adequate to indicate commission of cognizable offence or its discreet verification leads to similar conclusion, a Regular Case must be registered instead of a Preliminary enquiry. It is, therefore, clear that in all cases preliminary enquiry is not a mandate prior to registration of a first information report. In a case where facts unravelled in course of an earlier investigation prima facie discloses contours of another offence, registration of first information report for investigation of the said offence may not require a preliminary enquiry under the provisions of the CBI Manual. In P. Sirajuddin (supra), a preliminary enquiry was in fact entered into but such enquiry was conducted in an absolutely unfair, unjust and partisan manner and the subsequent criminal proceeding was resultantly quashed. The facts of the instant case, on the other hand, portray a completely different picture. In the instant case, FIR has been registered on the basis of facts unravelled in course of an earlier investigation rendering the purposes of holding preliminary enquiry redundant. That apart, after registration of the first information report, the Investigating Officer issued notice upon the petitioner calling upon the latter to satisfactorily account for the properties which had been found to be in his possession. In spite of receipt of such notice, the petitioner did not respond. Therefore, the manner of registration of the first information report and the subsequent conduct of the Investigating Agency does not indicate that the instant case was initiated or conducted in an unfair, unjust or partisan manner as was evident in the facts of P Sirajuddin (supra). Accordingly, I am of the opinion that omission to hold preliminary enquiry in the facts of the instant case was not illegal or the same did not occasion any failure of justice or cause prejudice to the petitioner in any manner whatsoever so as to render the impugned prosecution an abuse of the process of court.
The other issue as to whether the Investigating Agency ought to have called upon the petitioner to satisfactorily account for the assets found in his possession prior to registration of the first information report is no longer res integra in view of the law declared by the Apex Court in case of State of Maharashtra vs. Ishwar Piraji Kalpatri & Ors., 1996 (1) SCC 542. In the said report, the Apex Court held that in a case of disporportionate assets it is not incumbent upon the investigating agency to give a prior opportunity of hearing to the persons against whom the first information report is being registered. The Apex Court held as follows :
"15. In our opinion, there is a complete misreading of the aforesaid provision by the High Court. It is, no doubt true that a satisfactory explanation was required to be given by the delinquent officer. But this opportunity is only to be given during the course of the trial. It is no doubt true that evidence had to be gathered and a prima facie opinion found that the provisions of Section 5(1)(e) of the Act are attracted before a first information report was lodged. During the course of gathering of the material, it does happen that the officer concerned or other person may be questioned or other queries made. For the formation of a prima facie opinion that an officer may be guilty of criminal misconduct leading to the filing of the first information report, there is no provision in law or otherwise which makes it obligatory of an opportunity of being heard to be given to a person against whom the report is to be lodged. That such satisfactory account had to be rendered before a court is also borne out from the judgment of this Court in Veeraswami case where referring to Section 5(1)(e) of the Act at para 713 of the said judgment, it was observed as follows : (SCC pp.713‐14, para 72) "Clause (e) creates a statutory offence which must be proved by the prosecution. It is for the prosecution to prove that the accused or any person on his behalf, has been in possession of pecuniary resources or property disproportionate to his known sources of income. When that onus is discharged by the prosecution, it is for the accused to account satisfactorily for the disproportionality of the properties possessed by him. The section makes available statutory defence which must be proved by the accused. It is a restricted defence that is accorded to the accused to account for the disproportionality of the assets over the income. But the legal burden of proof placed on the accused is not so onerous as that of the prosecution. However, it is just not throwing some doubt on the prosecution version. The legislature has advisedly used the expression "satisfactorily account". The emphasis must be on the word "satisfactorily". That means the accused has to satisfy the court that his explanation is worthy of acceptance. The burden of proof placed on the accused is an evidential burden though not a persuasive burden. The accused however, could discharge that burden of proof "on the balance of probabilities" either from the evidence of the prosecution and/or evidence from the defence."
16. The aforesaid passage leaves no manner of doubt that the opportunity which is to be afforded to the delinquent officer under Section 5(1)(e) of the Act of satisfactorily explaining about his assets and resources is before the Court when the trial commences and not at an earlier stage. The conclusion arrived at by the learned single Judge that principles of natural justice had been violated, as no opportunity was given before the registration of the case, is clearly unwarranted and contrary to the aforesaid observations of this Court in K. Veeraswami case."
Relying on the aforesaid ratio, I am unable to accept the contention of Mr. Bhattacharjee that registration of the first information report without giving a prior opportunity to the petitioner to account for his assets tantamounts to an unfair and unjust investigation which is liable to be quashed. In the facts of this case, such opportunity was, however, given to the petitioner during investigation and prior to filing of charge‐sheet which he failed and/or neglected to avail.
For the aforesaid reasons, I am unwilling to interfere with the impugned order and quash the proceeding at this stage.
The application is dismissed.
(Joymalya Bagchi, J.) P.A. to J. Bagchi, J & sm & jb