Karnataka High Court
Balakrishna H N vs State Of Karnataka on 3 January, 2023
Author: M. Nagaprasanna
Bench: M. Nagaprasanna
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 03RD DAY OF JANUARY, 2023
BEFORE
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
WRIT PETITION No.15886 OF 2022(GM-RES)
BETWEEN:
BALAKRISHNA H.N.,
S/O N.NANJUNDI
AGED 42 YEARS
POLICE INSPECTOR
VIJAYANAGAR POLICE STATION
MYSURU CITY
(NOW UNDER ORDER OF SUSPENSION)
RESIDING AT NO.55,
GADDERAMESHWARA BADAVANE
CHENNARAYAPATNA
HASSAN DISTRICT - 573 116.
... PETITIONER
(BY SRI P.PRASANNA KUMAR, ADVOCATE)
AND:
1. STATE OF KARNATAKA
BY ANTI-CORRUPTION BRANCH
MYSURU
REPRESENTED BY ITS
SPECIAL PUBLIC PROSECUTOR
HIGH COURT BUILDING
DR.B.R.AMBEDKAR VEEDHI
BENGALURU - 560 001
NOW REPRESENTED BY
2
THE KARNATAKA LOKAYUKTHA
DR.AMBEDKAR VEEDHI
M.S.BUILDING,
BENGALURU - 1.
2. MOHAN KRISHNA P.,
MAJOR
POLICE INSPECTOR
ANTI CORRUPTION BRANCH
MYSURU.
... RESPONDENTS
(BY SRI B.B.PATIL, SPL.PP)
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE
CONSTITUTION OF INDIA READ WITH SECTION 482 OF CR.P.C.,
PRAYING TO QUASH THE FIR IN CRIME NO.6/2022 DTD 15.03.2022
REGISTERED BY R1 / ACB AS AGAINST THE PETITIONER /
ACCUSED ALLEGING OFFENCE PUNISHABLE U/S 13(1)(b) R/W
13(2) OF THE PREVENTION OF CORRUPTION ACT, 1988, PENDING
ON THE FILE OF THE LEARNED III ADDL. DISTRICT AND SESSIONS
JUDGE, MYSURU (PRODUCED VIDE ANNEXURE-A) AND ETC.,
THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED
FOR ORDERS ON 10.11.2022, COMING ON FOR PRONOUNCEMENT
THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER
The petitioner is before this Court calling in question registration of crime in Crime No.6 of 2022 registered on 15.03.2022 by the respondent, then Anti Corruption Bureau ('ACB' for short) alleging offences punishable under Section 13(1)(b) read with Section 13(2) of the Prevention of Corruption Act, 1988 ('the 3 Act' for short) and pending before the III Additional District and Sessions Judge, Mysuru.
2. Heard Sri P.Prasanna Kumar, learned counsel appearing for the petitioner and Sri B.B. Patil, learned Special Public Prosecutor appearing for the respondents.
3. Brief facts that lead the petitioner to this Court in the subject petition, as borne out from the pleadings, are as follows:-
The petitioner claims to have joined the service of Government of Karnataka in the Police Department on 01.09.2005 as Police Sub-Inspector. On completion of his probation, the petitioner was confirmed in service as Police Sub-Inspector. With effect from 01-11-2016 the petitioner was further promoted to the cadre of Inspector of Police and is presently working in the cadre of Inspector of Police.
4. It appears, on 14-03-2022, a source report is drawn by the 2nd respondent and is placed before the Superintendent of Police, ACB, Mysuru. Pursuant to the source report so drawn a FIR comes to be registered on 15-03-2022, the very next day for offences 4 punishable under Section 13(1)(b) and 13(2) of the Act.
Registration of crime is what drives the petitioner to this Court in the subject petition.
5. The learned counsel appearing for the petitioner would contend that the source report is prepared in a hurried manner without even looking the check period and placed before the Superintendent of Police on 14-03-2022. The Superintendent of Police also without even looking at the source report directs registration of crime in Crime No.6 of 2022 at 11.15 a.m. on the next day i.e., 15-03-2022. Therefore, the crime comes to be registered less than 24 hours of preparation of the source report.
The learned counsel for the petitioner would seek to lay emphasis upon the act of the petitioner in declaring every item that is found in the source report in the annual property returns and to the income tax department by the wife of the petitioner. Therefore, there is total non-application of mind in the preparation of source report and fancy figures are indicated only for the purpose of registration of the crime. He would submit that the very registration of crime runs counter to the orders passed by this Court in K.R. 5 KUMAR NAIK v. STATE BY ACB - W.P.No.7911 of 2022 decided on 26-07-2022; N NAVANEETH MOHAN v. ACB -
W.P.No.43817 of 2018 decided on 21-04-2021 and J.GNANENDRA KUMAR v. CHIEF SECRETARY, GOVERNMENT OF KARNATAKA & ANOTHER - W.P. No.8170 of 2022 decided on 20-07-2022.
6. On the other hand, the learned counsel representing the respondents would seek to contend that the crime is registered as a non-cognizable offence alleged to have been committed by the petitioner as disproportionate assets in terms of the source report is to the tune of 96.66% and the allegation that bares no application of mind is only a figment of imagination of the petitioner. The source report draws up all the income of the petitioner and the wife of the petitioner and then seeks to register a crime on the next day.
There is no concept of hearing the petitioner prior to registration of the crime. Even the preliminary enquiry that the petitioner seeks to contend on the strength of the judgments of this Court would all become inapplicable in the light of three Judge Bench judgment of 6 the Apex Court in the case of CBI v. THOMMANDRU HANNAH VIJAYALAKSHMI & ANOTHER - 2021 SCC OnLine 923.
7. I have given my anxious consideration to the submissions made by the respective learned counsel and have perused the material on record.
8. The issue lies in a narrow compass, as it is challenging the FIR the petitioner is before this Court. The ground urged by the learned counsel appearing for the petitioner is that if a preliminary enquiry had been conducted as is required in law, it would clearly demonstrate that the properties on which the prosecution wants to place reliance upon to arrive at a fancy figure of 96.66% as disproportionate asset would have been obviated. Therefore, it is germane to notice the very source report that is registered against the petitioner which reads as follows:
".... .... ....
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1. ¸ÀA±ÀAiÀiÁ¸ÀàzÀ ¸ÀPÁðj C¢üPÁjAiÀÄ ºÉ¸ÀgÀÄ ²æà ¨Á®PÀȵÀÚ ºÉZï.J£ï
2. ¸ÀPÁðj ¸ÉêÉUÉ ¸ÉÃjzÀ ¢£ÁAPÀ 2005
3. FV£À ºÀÄzÉÝAiÀÄ ºÉ¸ÀgÀÄ ªÀÄvÀÄÛ PÀbÉÃj ¥ÉÆ°Ã¸ï ¤jÃPÀëPÀgÀÄ, «dAiÀÄ£ÀUÀgÀ ¥Éưøï oÁuÉ, ªÉÄʸÀÆgÀÄ£ÀUÀgÀ
4. ¸ÀéAvÀ ¸ÀܼÀ ºÁ®ÄªÀÄwÛUÀnÖ, ±ÀæªÀt¨É¼ÀUÉƼÀ ºÉÆç½, ZÀ£ÀßgÁAiÀÄ¥ÀlÖt vÁ®ÆèPÀÄ, ºÁ¸À£À f¯Éè.
5. ºÁ° ªÁ¸À ¸ÀܼÀ £ÀA.256, D±Á ¤®AiÀÄ, 16£Éà PÁæ¸ï, 02£Éà ºÀAvÀ, «dAiÀÄ£ÀUÀgÀ, ªÉÄʸÀÆgÀÄ ²æà ¨Á®PÀȵÀÚ ºÉZï.J£ï gÀªÀgÀÄ ¸ÀPÁðj ¸ÉêÉUÉ ¸ÉÃjzÁV¤AzÀ E°èAiÀĪÀgÉ«UÉ PÀ£ÁðlPÀ gÁdåzÀ ««zsÀ PÀqÉ PÀvÀðªÀå ¤ªÀð»¹zÀÄÝ, EªÀgÀÄ vÀ£Àß ªÀÄvÀÄÛ vÀ£Àß PÀÄlÄA§zÀªÀgÀ ºÉ¸Àj£À°è ¹ÜgÀ ªÀÄvÀÄÛ ZÀgÀ D¹ÛUÀ¼À£ÀÄß ºÉÆA¢gÀÄvÁÛgÉ. EªÀgÀÄ ¸ÀPÁðj ¸ÉêÉUÉ ¸ÉÃjzÁV¤AzÀ E°èAiÀĪÀgÉ«UÉ UÀt¤ÃAiÀĪÁV ZÀgÀ ªÀÄvÀÄÛ ¹ÜgÀ D¹ÛUÀ¼À£ÀÄß Cfð¹gÀĪÀÅzÀÄ ªÉÄïÉÆßÃlPÉÌ PÀAqÀħA¢zÉ. CªÀÅUÀ¼À «ªÀgÀ F PɼÀPÀAqÀAvÉ EgÀÄvÀÛªÉ.
¸ÀA±ÀAiÀiÁ¸ÀàzÀ ¸ÀPÁðj C¢üPÁjAiÀĪÀgÀÄ vÀ£Àß ¸ÀPÁðj ¸ÉêÁªÀ¢üAiÀÄ°è Cfð¹gÀĪÀ ¹ÜgÀ D¹ÛUÀ¼À «ªÀgÀ PÀæ.¸ÀA. ¹ÜgÁ¹ÛAiÀÄ «ªÀgÀUÀ¼ÀÄ AiÀiÁgÀ D¹ÛAiÀÄ£ÀÄß D¹ÛAiÀÄ ºÉ¸Àj£À°è ºÉÆA¢zÀ CAzÁdÄ EgÀÄvÀÛzÉ ¢£ÁAPÀ ªÀiË®å 1 ¸ÀĪÀiÁgÀÄ 5 UÀÄAmÉ - - 15,00,000-00 SÁ° eÁUÀ, ªÉAPÀmÉñÀégÀ §qÁªÀuÉ, £ÀªÉÇÃzÀAiÀÄ ±Á¯É »A¨sÁUÀ, ZÀ£ÀßgÁAiÀÄ¥ÀlÖt, ºÁ¸À£À f¯Éè 2 ¸ÀªÉð £ÀA.114/2 gÀ°è 5 ²æêÀÄw ¨sÀªÀå²æ - 40,00,000-00 UÀÄAmÉ SÁ° eÁUÀ, (¸ÀA±ÀAiÀiÁ¸ÀàzÀ 8 ±ÉlÖºÀ½î UÁæªÀÄ, PÀ¸À¨Á ¸ÀPÁðj ºÉÆç½, C¢üPÁjAiÀĪÀgÀ ZÀ£ÀßgÁAiÀÄ¥ÀlÖt ¥Àwß) vÁ®ÆèPÀÄ, ºÁ¸À£À f¯Éè 3 ¸ÀªÉð £ÀA.114/5 gÀ°è 5 ²æêÀÄw ¨sÀªÀå²æ - 25,00,000-00 UÀÄAmÉ SÁ° eÁUÀ, (¸ÀA±ÀAiÀiÁ¸ÀàzÀ ±ÉlÖºÀ½î UÁæªÀÄ, PÀ¸À¨Á ¸ÀPÁðj ºÉÆç½, C¢üPÁjAiÀĪÀgÀ ZÀ£ÀßgÁAiÀÄ¥ÀlÖt ¥Àwß) vÁ®ÆèPÀÄ, ºÁ¸À£ f¯ÉèÀ 4 10 ªÀÄ£ÉUÀ½gÀĪÀ PÀlÖqÀ, ²æêÀÄw ¨sÀªÀå²æ - w½AiÀĨÉÃPÁVzÉ PÀAmÁæPÀÖgï PÀè¨ï »A¨sÁUÀ, (¸ÀA±ÀAiÀiÁ¸ÀàzÀ ¸ÀÄgÉÃ±ï ¨ÉÃPÀj »A¨sÁUÀ, ¸ÀPÁðj ZÀ¤ßUÀgÁAiÀÄ §qÁªÀuÉ, C¢üPÁjAiÀĪÀgÀ ZÀ£ÀßgÁAiÀÄ¥ÀlÖt, ºÁ¸À£À ¥Àwß) f¯Éè MlÄÖ 80,00,000-00 ¸ÀA±ÀAiÀiÁ¸ÀàzÀ ¸ÀPÁðj C¢üPÁjAiÀĪÀgÀÄ vÀ£Àß ¸ÀPÁðj ¸ÉêÁªÀ¢üAiÀÄ°è Cfð¹gÀĪÀ ZÀgÀ D¹ÛUÀ¼À «ªÀgÀ PÀæ.¸ÀA. ZÀgÁ¹ÛAiÀÄ «ªÀgÀUÀ¼ÀÄ AiÀiÁgÀ ºÉ¸Àj£À°è D¹ÛAiÀÄ£ÀÄß D¹ÛAiÀÄ CAzÁdÄ EgÀÄvÀÛzÉ ºÉÆA¢zÀ ªÀiË®å ¢£ÁAPÀ
1. £Á®ÄÌ ZÀPÀæzÀ ªÁºÀ£À 01 ¥Àj²Ã°¸À¨ÉÃPÁVgÀÄvÀÛzÉ - 13,00,000-00
2. J¸ï.f.N. gÀªÀgÀ ²æêÀÄw ¨sÀªÀå²æà ªÀÄvÀÄÛ ¸ÉÆøïð 5,00,000-00 ªÁ¸ÀzÀ ªÀÄ£ÉAiÀÄ°ègÀĪÀ ²æà ¨Á®PÀȵÀÚ ºÉZï.J£ï. ªÀiÁ»w a£ÀßzÀ D¨sÀgÀtUÀ¼ÀÄ ¢£ÁAPÀ ªÀÄvÀÄÛ ¨É½îAiÀÄ ªÀ¸ÀÄÛUÀ¼À zÀªÀgÉUÉ CAzÁdÄ ªÀiË®å
3. J¸ï.f.N. gÀªÀgÀ ²æêÀÄw ¨sÀªÀå²æà ªÀÄvÀÄÛ ¸ÉÆøïð 5,00,000-00 ªÁ¸ÀzÀ ªÀÄ£ÉAiÀÄ°ègÀĪÀ ²æà ¨Á®PÀȵÀÚ ºÉZï.J£ï. ªÀiÁ»w ¦ÃoÉÆÃ¥ÀPÀgÀtUÀ¼ÀÄ, ¢£ÁAPÀ E¯ÉQÖçPï ªÀÄvÀÄÛ zÀªÀgÉUÉ E¯ÉPÁÖç¤Pï ªÀ¸ÀÄÛUÀ¼À CAzÁdÄ ªÀiË®å MlÄÖ 23,00,000-00 CfðvÀ ¹ÜgÁ¹ÛUÀ¼À MlÄÖ CAzÁdÄ ªÀiË®å 80,00,000-00 CfðvÀ ZÀgÁ¹ÛUÀ¼À CAzÁdÄ ªÀiË®å MlÄÖ gÀÆ. 23,00,000-00 CfðvÀ ¹ÜgÀ ºÁUÀÆ ZÀgÁ¹ÛUÀ¼À MlÄÖ CAzÁdÄ ªÀiË®å 1,03,00,000-00 9 ¸ÀA±ÀAiÀiÁ¸ÀàzÀ ¸ÀPÁðj C¢üPÁjAiÀĪÀgÀÄ vÀ£Àß ¸ÀPÁðj ¸ÉêÁªÀ¢üAiÀÄ°è£À CAzÁdÄ RZÀÄð-ªÉZÀÑUÀ¼À «ªÀgÀ:
¸ÀA±ÀAiÀiÁ¸ÀàzÀ ¸ÀPÁðj C¢üPÁjAiÀĪÀgÁzÀ ²æà ¨Á®PÀȵÀÚ ºÉZï.J£ï gÀªÀgÀÄ vÀªÀÄä ¸ÉêÁªÀ¢üAiÀÄ°è vÉÆqÀV¹gÀĪÀ RZÀÄð-ªÉZÀÑUÀ¼À CAzÁdÄ «ªÀgÀ F PɼÀPÀAqÀAvÉ EzÉ.
1. ¹ÜgÀ ªÀÄvÀÄÛ ZÀgÀ D¹ÛUÀ¼À Rjâ PÁ®zÀ°è 4,00,000-00 ¥ÁªÀw¹gÀĪÀ £ÉÆÃAzÀt ªÉZÀÑ ªÀÄvÀÄÛ vÉjUÉ- CAzÁdÄ
2. ªÀÄPÀ̼À «zÁå¨sÁå¸ÀzÀ RZÀÄð-CAzÁdÄ 2,00,000-00
3. PËAlÄ©PÀ ¤ªÀðºÀuÉ ªÉZÀÑ CAzÁdÄ 8,00,000-00
4. ªÁºÀ£À ¤ªÀðºÀuÁ ªÉZÀÑ, zÀÆgÀªÁtÂ, ±ÀĨsÀ ¸ÀªÀiÁgÁA¨sÀ 1,00,000-00 EvÁå¢ CAzÁdÄ ¥Àj²Ã®£Á CªÀ¢üAiÀÄ CAzÁdÄ RZÀÄð gÀÆ. 15,00,000-00 ¸ÀA±ÀAiÀiÁ¸ÀàzÀ ¸ÀPÁðj C¢üPÁjAiÀĪÀgÀ ¥Àj²Ã®£Á CªÀ¢üAiÀÄ°è PÀÄlÄA§zÀ PÁ£ÀÆ£ÀÄ ¸ÀªÀÄävÀ ªÀÄÆ®UÀ½AzÀ §AzÀÀ CAzÁdÄ DzÁAiÀÄ ªÀÄÆ®UÀ¼À «ªÀgÀ:
PÀæ.¸ÀA. DzÁAiÀÄzÀ «ªÀgÀ ªÉÆvÀÛ gÀÆ.UÀ¼À°è 1 J¸ï.f.N.gÀªÀgÀ ¸ÀA§¼ÀzÀ CAzÁdÄ DzÁAiÀÄ 60,00,000-00 ¥Àj²Ã®£Á CªÀ¢üAiÀÄ §®è ªÀÄÆ®zÀ UÉÆvÁÛzÀ DzÁAiÀÄ MlÄÖ gÀÆ.UÀ¼À°è 60,00,000-00 ¸ÀA±ÀAiÀiÁ¸ÀàzÀ ¸ÀPÁðj C¢üPÁjAiÀĪÀgÀÄ ¥Àj²Ã®£Á CªÀ¢üAiÀÄ°è vÀ£Àß ºÁUÀÆ vÀ£Àß PÀÄlÄA§zÀ ¸ÀzÀ¸ÀågÀ ºÉ¸Àj£À°è Cfð¹gÀĪÀ D¹Û, DzÁAiÀÄ ªÀÄvÀÄÛ RZÀÄð ªÉZÀÑUÀ¼À CAzÁdÄ ªÀiË®å :: WÉÆõÁégÉ ::
1 CfðvÀ ¹ÜgÀ ªÀÄvÀÄÛ ZÀgÀ D¹Û CAzÁdÄ ªÀiË®å 1,03,00,000-00
2 vÉÆqÀV¹gÀĪÀ RZÀÄð CAzÁdÄ ªÀiË®å 15,00,000-00
D¹Û+RZÀÄð=MlÄÖ ªÀiË®å 1,18,00,000-00
§®è ªÀÄÆ®zÀ CAzÁdÄ DzÁAiÀÄ 60,00,000-00
UÀ½¹gÀĪÀ ºÉZÀÄѪÀj CPÀæªÀÄ D¹ÛAiÀÄ CAzÁdÄ ªÀiË®å 58,00,000-00
±ÉÃPÀqÁªÁgÀÄ ºÉZÀÄѪÀj ¥ÀæªÀiÁt 96.66%
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In terms of the source report what could be unmistakably gathered is that there is no check period indicated. The properties of the wife are taken at Rs.80/- lakhs and the income of the petitioner is taken at Rs.23/- lakhs totaling to Rs.1.03 crores to be the asset of the petitioner. The petitioner has appended to the petition several documents with regard to possession of properties of his wife.
9. The petitioner joined service on 01-09-2005, gets married to one Smt. C. Bhavya, daughter of one C.N.Chandregowda on 10-09-2007. It is claimed that the father-in-law of the petitioner is a landlord, contractor and businessman and had acquired certain properties long before marriage of his daughter with the petitioner.
Those properties which were acquired prior to the marriage were gifted in favour of the wife of the petitioner. Likewise certain 11 properties which were acquired by the father-in-law of the petitioner way back in the year 2000 long before the petitioner joined service of the State Government are gifted to the petitioner in the year 2020. The source report takes those properties to be the properties belonging to the petitioner and the wife of the petitioner depicting disproportionate asset to be 96.66%. The source report is drawn on 14-03-2022 and is placed before the competent authority i.e., the Superintendent of Police who endorses that a crime be registered against the petitioner for offences punishable under Section 13(1)(b) and 13(2) of the Act. The gap between submission of source report before the competent authority and a direction being issued for registration of the crime is less than 24 hours. This would not vitiate the proceedings though contended by the learned counsel appearing for the petitioner to the contrary.
10. The Apex Court has clearly held that in cases where the allegation is disproportionate assets to the known sources of income, prior to registration of crime or drawing up of source report, a preliminary enquiry is not only desirable but necessary, as it would avoid arbitrariness or arriving at fancy figure and hauling a 12 Government servant into the web of crime which would lead to dire consequences. A co-ordinate Bench of this Court in the case of N NAVANEETH MOHAN v. ACB1 (supra) while considering an offence that is akin to what is alleged in the case at hand, has held as follows:
".... .... ....
"8. The whole challenge to the FIR is based on the judgment of the Hon'ble Supreme Court in Lalitha Kumari's case referred to Supra. While holding that in some of the case to harass the parties there is chance of filing false FIRs and also in some cases the reluctant police registers the FIR in cognizable cases, the Hon'ble Supreme Court laid down certain directions for registration of FIR in para 120 of the judgment.
9. Para 120 of the said judgment included the following directions:
"120. In view of the aforesaid discussion, we hold:
120.1. The 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.
120.2. 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.
120.3. 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 information forthwith and not later 1 W.P.No.43817 of 2018 decided on 21-04-2021 13 than one week. It must disclose reasons in brief for closing the complaint and not proceeding further.
120.4. 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.
120.5. 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.
120.6. 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 inquiry."
(Emphasis supplied)
10. Reading of para 120.6 of the judgment makes it clear that in corruption cases, the preliminary enquiry may be made. The word ''may'' indicates the desirability and not mere arbitrary discretion. The challenge to the FIR is on the ground that no such preliminary enquiry was conducted and in the source report, the inspector put fancy figures only for the purpose of registering the FIR to harass the petitioner and stall the promotion.
1411. To substantiate such contention, along with the petition, the copies of the sale deeds, lease deeds or title deeds relating to some of those properties are produced. Regarding item No.1 i.e., house No.67 of Ganganagar, Bengaluru, in the source report, the valuation is shown as 16 lakhs. But as per the sale deed, the said property was purchased in the year 2007 for consideration of Rs.14.5 lakhs/-. The building constructed on the said site is valued at Rs.1 Crore 50 lakhs/-. But according to the petitioner that is an inflated figure and he had informed the department about the construction of the said house.
12. The source report states the value of item No.2 petrol bump is Rs.40 lakhs, whereas the petitioner produces the registered lease deed to show that the said property is not owned by the petitioner but taken on lease. The property at item No.3 was purchased prior to check period. The property at item No.6 is shown worth Rs.40 lakhs in the source report, but in the registered sale deed, the consideration of the same is shown as Rs.1.5 lakhs. Similarly, when source report states the value of item No.7 as Rs.20 lakhs, the sale deed is for Rs.1.85 lakhs.
13. It was also contended that despite the wife of the petitioner having independent income, her income was considered as the petitioner's income. Therefore, it was contended that if a preliminary enquiry was held calling upon the petitioner to explain the alleged disproportionate pecuniary resources that could have cleared the matter. It was also contended that if on securing the explanation of the petitioner still the respondent found that there is material to register the FIR, that could have been done.
14. The aforesaid sale deeds and the other materials show that value of the properties quoted in the source report was much higher than the rates quoted in the title documents. Petitioner has also produced the certificate issued by the Chartered Accountant of his wife to the effect that from 1988-92 to 2017-18 every year she has paid income tax. The said document further 15 indicates that during the said period, she has paid in all Rs.1,58,85,469/- as income tax.
15. The source report which is part of Annexure-A submitted before Superintendent of Police, ACB, Bengaluru, the note of Superintendent of Police, ACB do not indicate that along with the said report any material was placed before him to grant permission to register the FIR and investigate the matter. In the order of Superintendent Police absolutely, there is no reference to submission of any documents along with the source report. In one stroke the Superintendent of Police says that he is convinced that it is a fit case to register the FIR and investigate the case. He does not even say that any preliminary enquiry was conducted prior to placing source report before him. Therefore, there is clear violation of the direction issued by the Hon'ble Supreme Court in Lalitha Kumari's case in registering the FIR.
16. In the judgment of the Hon'ble Supreme Court in Charansingh Vs. State of Maharashtra and others in Crl.A.No.363/2021 dated 24.03.2021 relied upon by the learned Spl. Public Prosecutor himself, in para 12 it was held that before registering the FIR a preliminary enquiry shall be conducted either confidential or open enquiry.
17. It was further held that during the enquiry at pre-registration of FIR stage, if the accused satisfies producing the materials relating to his known sources of income and the assets, no FIR will be lodged. It was held that if accused is not able to clarify his assets vis-à-vis, known sources of income, then the FIR will be lodged and he will be subjected to investigation. It was held that such an enquiry would be to safeguard the interest of the accused also which may avoid further harassment to him.
18. The judgment in Dineshbhai Chandubhai Patel Vs. State of Gujarat and Others in 2018 3 SCC 104 was relied upon by learned Spl. Public Prosecutor to contend that, it is sufficient if FIR discloses prima facie a cognizable offence and the High Court cannot act like an Investigating Agency nor can exercise powers like an Appellate Court. Absolutely, there is no dispute with 16 regard to the said proposition. However, this Court also has to examine whether there was compliance of the direction issued by the Hon'ble Supreme Court in Lalita Kumari's case. As already pointed out, there is no such compliance in the case on hand.
19. Only for the limited purpose of finding out whether the source report was based on any material, the title deeds produced by the petitioner with regard to some of the properties mentioned above were compared and examined. The respondent cannot dispute the consideration mentioned in those registered sale deeds at this length of time. They prima facie show that without calling upon the petitioner to show the value of those properties or without any concrete basis in the source report atleast for some of the items, the fancy value are quoted.
20. Under such circumstance, the judgment in Dineshbhai Chandubhai Patel's case referred to supra no where advances the case of the respondent. Since the source report, order to register the FIR and the registration of the FIR were contrary to the judgments of the Supreme Court in Lalita Kumari's case and Charansingh's case, they amount to abuse of the process of the Court.
21. Therefore, the petition is allowed. The impugned FIR at Annexure-A is hereby quashed. This order does not preclude the respondent to conduct the preliminary enquiry as contemplated in Lalita Kumari's and Charansingh's case and if any material is found to proceed against the petitioner."
(Emphasis supplied) It is also germane to notice the order passed by another co-
ordinate Bench of this Court in J.GNANENDRA KUMAR v. CHIEF 17 SECRETARY, GOVERNMENT OF KARNATAKA & ANOTHER2 (supra) wherein it is held as follows:
".... .... ....
8. I have considered the submissions made by the learned counsel appearing for the parties.
9. A perusal of the Source Report indicates that the petitioner is alleged to be in possession of the properties disproportionate to the known source of income to an extent of 89.60% from the period 1998 to March 2022. Perusal of the statement furnished along with the memo filed by the petitioner indicates that the immovable properties at Sl.Nos.4 and 5 in the source report alleged to have been held by the wife was sold on 07.11.2019 and 26.06.2019, for a total sum of Rs.33,98,000/-. The statement further indicates that net salary of the petitioner is Rs.1.00 crore as against Rs.82,32,123/- and the rental income received by the wife of the petitioner is Rs.2,42,00,000/- which is evident from the income tax returns. However, in the Source Report it is shown as Rs.19,50,000/-. The statement further indicates that the petitioner has contributed a sum of Rs.70,43,660/- towards Provident fund and it is certified by the Accountant General and the said contribution is also not taken into account in the Source Report. The statement furnishing the said information is not disputed by the respondent-ACB.
10. The Hon'ble Supreme Court in the case of Central Bureau of Investigation and another supra at para 33 has held that:
"Conducting preliminary enquiry would not take away from the ultimate goal of prosecuting accused persons in a timely manner. However, if the CBI chooses not to hold a preliminary enquiry, the accused cannot demand it as a matter of right."
The Hon'ble Supreme Court in the case of State of Telangana Supra has held that the preliminary enquiry 2 W.P. No.8170 of 2022 decided on 20-07-2022 18 warranted in Lalitha Kumari is not required to be mandatorily conducted in all corruption cases and preliminary enquiry to be conducted depends on the facts and circumstances of each case and there are no fixed parameters on which such enquiry can be said to be conducted. In the present case, respondent-ACB has stated that after conducting discreet enquiry source report has been prepared by the officer concerned. However, certain immovable properties sold prior to preparation of the report and also rental income of the wife of the petitioner and also the contribution made by petitioner towards provident fund is not taken into account in the source report, and if the same are deducted, inevitably the assets possessed by the Petitioner is - 9.3% of the known source of income. Hence, the contention of the Petitioner, whether the conducting of preliminary enquiry was mandatory or not before registration of the FIR in the present case need not be gone into.".
In the case of N NAVANEETH MOHAN (supra) the co-ordinate Bench of this Court has clearly held that conduct of a preliminary enquiry is necessary for the reason that it would avoid fancy figures being quoted in the source report which would be without application of mind and has quashed the proceedings at the stage of FIR reserving liberty to conduct preliminary enquiry and proceed against the petitioner therein.
11. Much reliance is placed by the learned counsel appearing for the respondents on the judgment of the Apex Court in the case of CBI v. THOMMANDRU HANNAH VIJAYALAKSHMI & 19 ANOTHER3 (supra). The Apex Court, in the said case, has formulated a specific issue with regard to the preliminary enquiry being mandatory or otherwise. The Apex Court holds as follows:
"D Whether a Preliminary Inquiry is mandatory before registering an FIR D.1 Precedents of this Court
14. Before proceeding with our analysis of the issue, it is important to understand what previous judgments of this Court have stated on the issue of whether CBI is required to conduct a Preliminary Enquiry before the registration of an FIR, especially in cases of alleged corruption against public servants.
15. The first of these is a judgment of a two Judge Bench in P Sirajuddin (supra), in which it was observed that before a public servant is charged with acts of dishonesty amounting to serious misdemeanor, some suitable preliminary enquiry must be conducted in order to obviate incalculable harm to the reputation of that person. Justice G K Mitter held that:
"17...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..."
(emphasis supplied) 3 2021 SCC OnLine 923 20
16. The above decision was followed by another two Judge Bench in Nirmal Singh Kahlon (supra), where it was observed that in accordance with the CBI Manual, the CBI may only be held to have established a prima facie case upon the completion of a Preliminary Enquiry. Justice S B Sinha held thus:
"30. Lodging of a first information report by CBI is governed by a manual. It may hold a preliminary inquiry; it has been given the said power in Chapter VI of the CBI Manual. A prima facie case may be held to have been established only on completion of a preliminary enquiry."
17. The most authoritative pronouncement of law emerges from the decision of a Constitution Bench in Lalita Kumari (supra). The issue before the Court was whether "a police officer is bound to register a first information report (FIR) upon receiving any information relating to commission of a cognizable offence under Section 154 of the Code of Criminal Procedure 1973...or the police officer has the power to conduct a 'preliminary inquiry' in order to test the veracity of such information before registering the same". Answering this question on behalf of the Bench, Chief Justice P Sathasivam held that under Section 154 of the Code of Criminal Procedure 197355, a police officer need not conduct a preliminary enquiry and must register an FIR when the information received discloses the commission of a cognizable offence. Specifically with reference to the provisions of the CBI Manual, the decision noted:
"89. Besides, the learned Senior Counsel relied on the special procedures prescribed under the CBI Manual to be read into Section 154. It is true that the concept of "preliminary inquiry" is contained in Chapter IX of the Crime Manual of CBI. However, this Crime Manual is not a statute and has not been enacted by the legislature. It is a set of administrative orders issued for internal guidance of the CBI officers. It cannot supersede the Code. Moreover, in the absence of any indication to the contrary in the Code itself, the provisions of the CBI Crime Manual cannot be relied upon to import the concept of holding of preliminary inquiry in the scheme of the Code of Criminal Procedure. At 21 this juncture, it is also pertinent to submit that CBI is constituted under a special Act namely, the Delhi Special Police Establishment Act, 1946 and it derives its power to investigate from this Act."
(emphasis supplied)
18. However, the Court was also cognizant of the possible misuse of the powers under criminal law resulting in the registration of frivolous FIRs. Hence, it formulated "exceptions" to the general rule that an FIR must be registered immediately upon the receipt of information disclosing the commission of a cognizable offence. The Constitution Bench held:
"115. Although, we, in unequivocal terms, hold that Section 154 of the Code postulates the mandatory registration of FIRs on receipt of all cognizable offences, yet, there may be instances where preliminary inquiry may be required owing to the change in genesis and novelty of crimes with the passage of time...
[...]
117. In the context of offences relating to corruption, this Court in P. Sirajuddin [P. Sirajuddin v. State of Madras, (1970) 1 SCC 595 : 1970 SCC (Cri) 240] expressed the need for a preliminary inquiry before proceeding against public servants.
[...]
119. Therefore, in view of various counterclaims regarding registration or non-registration, what is necessary is only that the information given to the police must disclose the commission of a cognizable offence. In such a situation, registration of an FIR is mandatory. However, if no cognizable offence is made out in the information given, then the FIR need not be registered immediately and perhaps the police can conduct a sort of preliminary verification or inquiry for the limited purpose of ascertaining as to whether a cognizable offence has been committed. But, if the information given clearly mentions the commission of a cognizable offence, there is no other option but to register an FIR forthwith. Other considerations are not relevant at the stage of registration of FIR, such as, whether the 22 information is falsely given, whether the information is genuine, whether the information is credible, etc. These are the issues that have to be verified during the investigation of the FIR. At the stage of registration of FIR, what is to be seen is merely whether the information given ex facie discloses the commission of a cognizable offence. If, after investigation, the information given is found to be false, there is always an option to prosecute the complainant for filing a false FIR."
(emphasis supplied)
19. The judgment provides the following conclusions:
"120. In view of the aforesaid discussion, we hold:
120.1. The 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.
120.2. 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.
[...] 120.5. 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.
120.6. 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:
[...]
(d) Corruption cases [...] The aforesaid are only illustrations and not exhaustive of all conditions which may warrant preliminary inquiry."
(emphasis supplied) 23
20. The Constitution Bench thus held that a Preliminary Enquiry is not mandatory when the information received discloses the commission of a cognizable offence. Even when it is conducted, the scope of a Preliminary Enquiry is not to ascertain the veracity of the information, but only whether it reveals the commission of a cognizable offence. The need for a Preliminary Enquiry will depend on the facts and circumstances of each case. As an illustration, "corruption cases" fall in that category of cases where a Preliminary Enquiry "may be made". The use of the expression "may be made" goes to emphasize that holding a preliminary enquiry is not mandatory. Dwelling on the CBI Manual, the Constitution Bench held that : (i) it is not a statute enacted by the legislature; and (ii) it is a compendium of administrative orders for the internal guidance of the CBI.
21. The judgment in Lalita Kumari (supra) was analyzed by a three Judge Bench of this Court in Yashwant Sinha (supra) where the Court refused to grant the relief of registration of an FIR based on information submitted by the appellant-informant. In his concurring opinion, Justice K M Joseph described that a barrier to granting the relief of registration of an FIR against a public figure would be the observations of this Court in Lalita Kumari (supra) noting that a Preliminary Enquiry may be desirable before doing so. Justice Joseph observes:
"108. Para 120.6 [of Lalita Kumari] deals with the type of cases in which preliminary inquiry may be made. Corruption cases are one of the categories of cases where a preliminary inquiry may be conducted...
[...]
110. In para 117 of Lalita Kumari [Lalita Kumari v. State of U.P., (2014) 2 SCC 1 : (2014) 1 SCC (Cri) 524], this Court referred to the decision in P. Sirajuddin v. State of Madras [P. Sirajuddin v. State of Madras, (1970) 1 SCC 595 : 1970 SCC (Cri) 240] and took the view that in the context of offences related to corruption in the said decision, the Court has expressed a need for a preliminary inquiry before proceeding against public servants.
[...]
112. In Lalita Kumari [Lalita Kumari v. State of U.P., (2014) 2 SCC 1 : (2014) 1 SCC (Cri) 524], one of 24 the contentions which was pressed before the Court was that in certain situations, preliminary inquiry is necessary. In this regard, attention of the Court was drawn to CBI Crime Manual...
[...]
114. The Constitution Bench in Lalita Kumari [Lalita Kumari v. State of U.P., (2014) 2 SCC 1 : (2014) 1 SCC (Cri) 524], had before it, the CBI Crime Manual. It also considered the decision of this Court in P. Sirajuddin [P. Sirajuddin v. State of Madras, (1970) 1 SCC 595 : 1970 SCC (Cri) 240] which declared the necessity for preliminary inquiry in offences relating to corruption. Therefore, the petitioners may not be justified in approaching this Court seeking the relief of registration of an FIR and investigation on the same as such. This is for the reason that one of the exceptions where immediate registration of FIR may not be resorted to, would be a case pointing fingers at a public figure and raising the allegation of corruption. This Court also has permitted preliminary inquiry when there is delay, laches in initiating criminal prosecution, for example, over three months. A preliminary inquiry, it is to be noticed in para 120.7, is to be completed within seven days."
(emphasis supplied)
22. The decision of a two Judge Bench in Managipet (supra) thereafter has noted that while the decision in Lalita Kumari (supra) held thats a Preliminary Enquiry was desirable in cases of alleged corruption, that does not vest a right in the accused to demand a Preliminary Enquiry. Whether a Preliminary Enquiry is required or not will depends on the facts and circumstances of each case, and it cannot be said to be mandatory requirement without which a case cannot be registered against the accused in corruption cases. Justice Hemant Gupta held thus:
"28. In Lalita Kumari [Lalita Kumari v. State of U.P., (2014) 2 SCC 1 : (2014) 1 SCC (Cri) 524], the Court has laid down the cases in which a preliminary inquiry is warranted, more so, to avoid an abuse of the process of law rather than vesting any right in favour of an accused. Herein, the argument made was that if a 25 police officer is doubtful about the veracity of an accusation, he has to conduct a preliminary inquiry and that in certain appropriate cases, it would be proper for such officer, on the receipt of a complaint of a cognizable offence, to satisfy himself that prima facie, the allegations levelled against the accused in the complaint are credible...
29. The Court concluded that the registration of an 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...
30. It must be pointed out that this Court has not held that a preliminary inquiry is a must in all cases. A preliminary enquiry may be conducted pertaining to matrimonial disputes/family disputes, commercial offences, medical negligence cases, corruption cases, etc. The judgment of this Court in Lalita Kumari [Lalita Kumari v. State of U.P., (2014) 2 SCC 1 : (2014) 1 SCC (Cri) 524] does not state that proceedings cannot be initiated against an accused without conducting a preliminary inquiry.
[...]
32...The scope and ambit of a preliminary inquiry being necessary before lodging an FIR would depend upon the facts of each case. There is no set format or manner in which a preliminary inquiry is to be conducted. The objective of the same is only to ensure that a criminal investigation process is not initiated on a frivolous and untenable complaint. That is the test laid down in Lalita Kumari [Lalita Kumari v. State of U.P., (2014) 2 SCC 1 : (2014) 1 SCC (Cri) 524].
33. In the present case, the FIR itself shows that the information collected is in respect of disproportionate assets of the accused officer. The purpose of a preliminary inquiry is to screen wholly frivolous and motivated complaints, in furtherance of acting fairly and objectively. Herein, relevant information was available with the informant in respect of prima facie allegations disclosing a cognizable 26 offence. Therefore, once the officer recording the FIR is satisfied with such disclosure, he can proceed against the accused even without conducting any inquiry or by any other manner on the basis of the credible information received by him. It cannot be said that the FIR is liable to be quashed for the reason that the preliminary inquiry was not conducted. The same can only be done if upon a reading of the entirety of an FIR, no offence is disclosed. Reference in this regard, is made to a judgment of this Court in State of Haryana v. Bhajan Lal [State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335 : 1992 SCC (Cri) 426] wherein, this Court held inter alia that where the allegations made in the FIR or the complaint, even if they are taken at their face value and accepted in their entirety, do not prima facie constitute any offence or make out a case against the accused and also where a criminal proceeding is manifestly attended with mala fides 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.
34. Therefore, we hold that the preliminary inquiry warranted in Lalita Kumari [Lalita Kumari v. State of U.P., (2014) 2 SCC 1 : (2014) 1 SCC (Cri) 524] is not required to be mandatorily conducted in all corruption cases. It has been reiterated by this Court in multiple instances that the type of preliminary inquiry to be conducted will depend on the facts and circumstances of each case. There are no fixed parameters on which such inquiry can be said to be conducted. Therefore, any formal and informal collection of information disclosing a cognizable offence to the satisfaction of the person recording the FIR is sufficient."
(emphasis supplied)
23. In Charansingh (supra), the two Judge bench was confronted with a challenge to a decision to hold a Preliminary Enquiry. The court adverted to the ACB Manual in Maharashtra and held that a statement provided by an individual in an "open inquiry" in the nature of a Preliminary Enquiry would not be confessional in nature and hence, the individual cannot 27 refuse to appear in such an inquiry on that basis. Justice M R Shah, writing for the two Judge bench consisting also of one of us (Justice D Y Chandrachud) held:
"11. However, whether in a case of a complaint against a public servant regarding accumulating the assets disproportionate to his known sources of income, which can be said to be an offence under Section 13(1)(e) of the Prevention of Corruption Act, 1988, an enquiry at pre-FIR stage is permissible or not and/or it is desirable or not, if any decision is required, the same is governed by the decision of this Court in Lalita Kumari [Lalita Kumari v. State of U.P., (2014) 2 SCC 1 : (2014) 1 SCC (Cri) 524].
11.1. While considering the larger question, whether police is duty-bound to register an FIR and/or it is mandatory for registration of FIR on receipt of information disclosing a cognizable offence and whether it is mandatory or the police officer has option, discretion or latitude of conducting preliminary enquiry before registering FIR, this Court in Lalita Kumari [Lalita Kumari v. State of U.P., (2014) 2 SCC 1 : (2014) 1 SCC (Cri) 524] has observed that it is mandatory to register an FIR on receipt of information disclosing a cognizable offence and it is the general rule. However, while holding so, this Court has also considered the situations/cases in which preliminary enquiry is permissible/ desirable. While holding that the registration of FIR is mandatory under Section 154, if the information discloses commission of a cognizable offence and no preliminary enquiry is permissible in such a situation and the same is the general rule and must be strictly complied with, this Court has carved out certain situations/cases in which the preliminary enquiry is held to be permissible/desirable before registering/lodging of an FIR. It is further observed that if the information received does not disclose a cognizable offence but indicates the necessity for an inquiry, a preliminary enquiry may be conducted to ascertain whether cognizable offence is disclosed or not. It is observed that as to what type and in which cases the preliminary 28 enquiry is to be conducted will depend upon the facts and circumstances of each case.
[...]
14. In the context of offences relating to corruption, in para 117 in Lalita Kumari [Lalita Kumari v. State of U.P., (2014) 2 SCC 1 : (2014) 1 SCC (Cri) 524], this Court also took note of the decision of this Court in P. Sirajuddin v. State of Madras [P. Sirajuddin v. State of Madras, (1970) 1 SCC 595 : 1970 SCC (Cri) 240] in which case this Court expressed the need for a preliminary enquiry before proceeding against public servants.
[...] 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 proceedings will be put in motion and the further investigation will be carried out in terms of the Code of Criminal Procedure. Therefore, such a preliminary enquiry would be permissible only to ascertain whether cognizable offence is disclosed or not and only thereafter FIR would be registered. Therefore, such a preliminary enquiry would be in the interest of the alleged accused also against whom the complaint is made.
15.2. Even as held by this Court in CBI v. Tapan Kumar Singh [CBI v. Tapan Kumar Singh, (2003) 6 SCC 175 : 2003 SCC (Cri) 1305], a GD entry recording the information by the informant disclosing the commission of a cognizable offence can be treated as FIR in a given case and the police has the power and jurisdiction to investigate the same. However, in an appropriate case, 29 such as allegations of misconduct of corrupt practice by a public servant, before lodging the first information report and further conducting the investigation, if the preliminary enquiry is conducted to ascertain whether a cognizable offence is disclosed or not, no fault can be found. Even at the stage of registering the FIR, what is required to be considered is whether the information given discloses the commission of a cognizable offence and the information so lodged must provide a basis for the police officer to suspect the commission of a cognizable offence. At this stage, it is enough if the police officer on the basis of the information given suspects the commission of a cognizable offence, and not that he must be convinced or satisfied that a cognizable offence has been committed. Despite the proposition of law laid down by this Court in a catena of decisions that at the stage of lodging the first information report, the police officer need not be satisfied or convinced that a cognizable offence has been committed, considering the observations made by this Court in P. Sirajuddin [P. Sirajuddin v. State of Madras, (1970) 1 SCC 595 : 1970 SCC (Cri) 240] and considering the observations by this Court in Lalita Kumari [Lalita Kumari v. State of U.P., (2014) 2 SCC 1 : (2014) 1 SCC (Cri) 524] before lodging the FIR, an enquiry is held and/or conducted after following the procedure as per Maharashtra State Anti-
Corruption & Prohibition Intelligence Bureau Manual, it cannot be said that the same is illegal and/or the police officer, Anti-Corruption Bureau has no jurisdiction and/or authority and/or power at all to conduct such an enquiry at pre-
registration of FIR stage."
(emphasis supplied)
24. Hence, all these decisions do not mandate that a Preliminary Enquiry must be conducted before the registration of an FIR in corruption cases. An FIR will not stand vitiated because a Preliminary Enquiry has not been conducted. The decision in Managipet (supra) dealt specifically with a case of Disproportionate Assets. In that context, the judgment holds that where relevant information regarding prima 30 facie allegations disclosing a cognizable offence is available, the officer recording the FIR can proceed against the accused on the basis of the information without conducting a Preliminary Enquiry.
25. This conclusion is also supported by the judgment of another Constitution Bench in K. Veeraswami (supra). The judgment was in context of Section 5(1)(e) of the old Prevention of Corruption Act 1947, which is similar to Section 13(1)(e) of the PC Act. It was argued that : (i) a public servant must be afforded an opportunity to explain the alleged Disproportionate Assets before an Investigating Officer;
(ii) this must then be included and explained by the Investigating Officer while filing the charge sheet; and (iii) the failure to do so would render the charge sheet invalid. Rejecting this submission, the Constitution Bench held that doing so would elevate the Investigating Officer to the role of an enquiry officer or a Judge and that their role was limited only to collect material in order to ascertain whether the alleged offence has been committed by the public servant. In his opinion for himself and Justice Venkatachaliah, Justice K Jagannatha Shetty held thus:
"75...since the legality of the charge-sheet has been impeached, we will deal with that contention also. Counsel laid great emphasis on the expression "for which he cannot satisfactorily account" used in clause
(e) of Section 5(1) of the Act. He argued that that term means that the public servant is entitled to an opportunity before the Investigating Officer to explain the alleged disproportionality between assets and the known sources of income. The Investigating Officer is required to consider his explanation and the charge-
sheet filed by him must contain such averment. The failure to mention that requirement would vitiate the charge-sheet and renders it invalid. This submission, if we may say so, completely overlooks the powers of the Investigating Officer. The Investigating Officer is only required to collect material to find out whether the offence alleged appears to have been committed. In the course of the investigation, he may examine the accused. He may seek his clarification and if necessary he may cross check with him about his known sources of income and assets possessed by him. Indeed, fair 31 investigation requires as rightly stated by Mr. A.D. Giri, learned Solicitor General, that the accused should not be kept in darkness. He should be taken into confidence if he is willing to cooperate. But to state that after collection of all material the Investigating Officer must give an opportunity to the accused and call upon him to account for the excess of the assets over the known sources of income and then decide whether the accounting is satisfactory or not, would be elevating the Investigating Officer to the position of an enquiry officer or a judge. The Investigating Officer is not holding an enquiry against the conduct of the public servant or determining the disputed issues regarding the disproportionality between the assets and the income of the accused. He just collects material from all sides and prepares a report which he files in the court as charge-sheet."
(emphasis supplied)
26. Therefore, since an accused public servant does not have a right to be afforded a chance to explain the alleged Disproportionate Assets to the Investigating Officer before the filing of a charge sheet, a similar right cannot be granted to the accused before the filing of an FIR by making a Preliminary Enquiry mandatory.
27. Having revisited the precedents of this Court, it is now necessary to consider the provisions of the CBI Manual.
D.2 CBI Manual
28. In the judgment in Vineet Narain (supra), as three Judge Bench of this Court noted that the provisions of the CBI Manual must be followed by the officers of the CBI strictly, and disciplinary action should be taken against those who deviate from them. Chief Justice J S Verma noted:
"58. As a result of the aforesaid discussion, we hereby direct as under:
I. Central Bureau of Investigation (CBI) and Central Vigilance Commission (CVC) [...]
12. The CBI Manual based on statutory provisions of the CrPC provides essential guidelines for the CBI's 32 functioning. It is imperative that the CBI adheres scrupulously to the provisions in the Manual in relation to its investigative functions, like raids, seizure and arrests. Any deviation from the established procedure should be viewed seriously and severe disciplinary action taken against the officials concerned."
29. In the later judgment of a two judge Bench in Shashikant (supra), its was held that the CBI cannot be faulted for conducting a Preliminary Enquiry in accordance with the CBI Manual. Justice S B Sinha held:
"9...It is also not disputed that the CBI Manual was made by the Central Government providing for detailed procedure as regards the mode and manner in which complaints against public servants are to be dealt with.
[...]
11. The CBI Manual provides for a preliminary inquiry. By reason thereof a distinction has been made between a preliminary inquiry and a regular case. A preliminary inquiry in terms of para 9.1 of the CBI Manual may be converted into a regular case as soon as sufficient material becomes available to show that prima facie there has been commission of a cognizable offence.
[...]
19. When an anonymous complaint is received, no investigating officer would initiate investigative process immediately thereupon. It may for good reasons carry out a preliminary enquiry to find out the truth or otherwise of the allegations contained therein.
[...]
25...The procedure laid down in the CBI Manual and in particular when it was required to inquire into the allegation of the corruption on the part of some public servants, recourse to the provisions of the Manual cannot be said to be unfair..."
(emphasis supplied) 33
30. In Ashok Kumar Aggarwal (supra), a two judge Bench observed that the provisions of the CBI Manual require strict compliance. Justice B S Chauhan held:
"24...the CBI Manual, being based on statutory provisions of CrPC, provides for guidelines which require strict compliance. More so, in view of the fact that the ratio of the judgment of this Court in M.M. Rajendran [State of T.N. v. M.M. Rajendran, (1998) 9 SCC 268 : 1998 SCC (Cri) 1000] has been incorporated in the CBI Manual, the CBI Manual itself is the best authority to determine the issue at hand. The court has to read the relevant provisions of the CBI Manual alone and no judgment of this Court can be a better guiding factor under such a scenario."
31. Hence, it is necessary to scrutinize the provisions of the CBI Manual. Chapter 8 of the CBI Manual is titled "Complaints and Source Information". Para 8.1 notes that the CBI must register every complaint it receives, whatever be its source, before it starts verifying it. Para 8.6(ii) provides that verification can be undertaken for "[c]omplaints containing specific and definite allegations involving corruption or serious misconduct against public servants etc., falling within the ambit of CBI, which can be verified". Paras 8.8-8.9 describe the process of verification where the officers are to examine records informally and discreetly without making written requisitions, and that this process ordinarily should not take more than three months but can take up to four months for complicated cases. Para 8.24 indicates that the officer entrusted with verification must submit a detailed report at the end of the process with specific recommendations, including whether a Preliminary Enquiry is required or if a Regular Case should be registered directly.
32. The FIR in the present case has been registered on the basis of "Source Information". Both during the course of the hearing and in the affidavit filed by CBI, it has been explained that CBI found information and documents while investigating another case. Para 8.26 of the CBI Manual notes that every officer of the CBI can develop source information "regarding graft, misuse of official position, possession of disproportionate assets, fraud, embezzlement, serious economic offences, illegal trading in narcotics and psychotropic 34 substances, counterfeiting of currency, smuggling of antiques, acts endangering wildlife and environment, cybercrimes, serious frauds of banking/financial institutions, smuggling of arms and ammunition, forgery of passports, etc. and other matters falling within the purview of CBI and verify the same to ascertain whether any prima facie material is available to undertake an open probe". However, while doing so, they are to keep their superior officer 'well informed'. Further, para 8.27 describes the process once such "source information" is developed and submitted to the superior officer. It reads as follows:
"8.27. The source information once developed must be submitted in writing giving all available details with specific acts of omissions and commissions and copies of documents collected discreetly. The internal vigilance enquiries or departmental enquiry reports should normally not be used as basis for submitting the source information. The SP concerned after satisfying himself that there is prima facie material meriting action by CBI and further verification is likely to result in registration of a regular case, would order verification if it falls within his competence. In the cases which are within the competence of higher officers, he will forward his detailed comments to the DIG and obtain orders from superior officer competent to order registration. The verification of SIRs must begin only after the competent authority has approved its registration. At this stage a regular SIR number will be assigned to the SIR which will also be entered in the source information sub-module of Crimes Module with all other details."
33. The superior officer thus has to verify whether the developed "source information" prima facie would result in the registration of a case by the CBI; if yes, they then have to direct the verification of such information. Verification is governed by para 8.29, which speaks of a process similar to para 8.9. Para 8.32 provides that verification of "source information" shall be completed within three months and approval of the Competent Authority is required to carry out verification beyond that period. Similar to para 8.24, under para 8.33, the officer entrusted with verification has to 35 submit a report with specific recommendations on whether a Preliminary Enquiry is required or if a Regular Case should be registered directly."
(Emphasis supplied) The Apex Court considers entire spectrum of law and at sub-para 15.1 of paragraph 23 holds that an enquiry at pre-FIR stage is held to be permissible; not only permissible but desirable, more particularly in cases where the allegations are of misconduct of corrupt practice acquiring assets/properties disproportionate to his known sources of income. This cannot be demanded as a matter or right is what is held, apart from holding that there cannot be a hearing given to the accused prior to drawing up of a source report or registration of a crime. The Apex Court nevertheless holds that the preliminary inquiry is not only desirable but necessary in such cases. At paragraph 33 the Apex Court holds that the superior officer thus has to verify whether the developed source information prima facie would result in the registration of a case; if yes, they then will have to direct verification of such information. Though the entire verification was governed by the CBI manual which the Apex Court had already held that it should be strictly and scrupulously 36 followed, the Apex Court holds that preliminary inquiry would not be a matter of right or necessary in every case.
12. If the reasons rendered by Apex Court are noticed, two factors would emerge - one, that the prosecution is required to draw up source report after conducting some sort of a preliminary enquiry to know the assets of the Government servant and two, after the source information report is placed before the Superior Officer - Superintendent of Police, he has to verify as to whether a crime should be registered or otherwise. If these principles that would emerge from the judgment of the Apex Court are considered qua the facts obtaining in the case 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, I deem it appropriate to obliterate the crime and pass the following:
37ORDER
(i) Writ Petition is allowed.
(ii) The FIR in Crime No.6 of 2022 registered on 15-03-2022 and pending before the III Additional District and Sessions Judge, Mysuru stands quashed.
(ii) Notwithstanding quashment of the aforementioned FIR, liberty is reserved to the respondent/Karnataka Lokayukta to draw up a source report and register FIR against the petitioner strictly in consonance with law, bearing in mind the observations made in the course of this order and the judgment of the Apex Court in the case of T.H.VIJAYALAKSHMI and that of this Court in the case of N NAVANEETH MOHAN (supra).
Sd/-
JUDGE bkp CT:MJ