Madhya Pradesh High Court
Omprakash Uikey vs The State Of Madhya Pradesh on 4 April, 2024
Author: Gurpal Singh Ahluwalia
Bench: Gurpal Singh Ahluwalia
1 M.Cr.C No.13457/2024
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
ON THE 4th OF APRIL, 2024
MISCELLANEOUS CRIMINAL CASE No. 13457 of 2024
BETWEEN:-
1. OMPRAKASH UIKEY S/O SHRI SAMARU
UIKEY, AGED ABOUT 36 YEARS,
OCCUPATION: SERVICE AT PRESENT R/O
HOUSE OF QURESHI, IN FRONT OF HOTEL
LINE MADAN MOHAN COLONY, DEWA,
TEHSIL AND DISTRICT DEWAS (MADHYA
PRADESH)
2. RAJNI UIKEY W/O SHRI SAMARU UIKEY,
AGED ABOUT 72 YEARS, OCCUPATION:
HOUSEWIFE R/O SARRI SIGARPUR,
BAMHANI MANDLA DISTRICT MANDLA
(MADHYA PRADESH)
3. SAROJ PARASTE W/O SHRI MOHAN
PARASTE, AGED ABOUT 48 YEARS,
OCCUPATION: HOUSEWIFE R/O VILLAGE
KAKAIYA POLICE STATION BAMHANI,
DISTRICT MANDLA (MADHYA PRADESH)
4. KANTA UIKEY D/O SHRI SAMARU UIKEY,
AGED ABOUT 38 YEARS, OCCUPATION:
UNEMPLOYED R/O SARRI SIGARPUR
BAMHANI MANDLA DISTRICT MANDLA
(MADHYA PRADESH)
.....APPLICANTS
(BY SHRI VIJAY KUMAR SHRIVASTAVA - ADVOCATE)
AND
1. STATE OF MADHYA PRADESH THROUGH
POLICE STATION MAHILA THANA MANDLA,
DISTRICT MANDLA (MADHYA PRADESH)
2. SMT. LAXMI UIKEY W/O SHRI OMPRAKASH
UIKEY D/O SHRI KRISHNA SINGH, AGED
2 M.Cr.C No.13457/2024
ABOUT 32 YEARS, OCCUPATION: BUSINESS
OF BUTIK R/O VILLAGE DEVDHARA,
RAJEEV COLONY, DEVNAGAR, NEAR
POLYTECHNIC COLLEGE, MANDLA TEHSIL
AND DISTRICT MANDLA (MADHYA
PRADESH)
.....RESPONDENTS
(STATE BY SHRI K.S. BAGHEL - PUBLIC PROSECUTOR)
............................................................................................................................................
This application coming on for admission this day, the court passed
the following:
ORDER
This application under Section 482 of Cr.P.C. has been filed seeking following reliefs:-
"1) That the Hon'ble Court may kindly be pleased to call the entire record of FIR in connection of Crime No.0006/2024 punishable under section 498-A & 34 of IPC & U/s 4 of Dowry Prohibition Act, which is registered by police Station Mahila Thana Mandla, District Mandla, in the interest of justice.
2) Any other relief as deemed fit and proper in the circumstances of this case, along with the cost of this writ petition be also awarded."
2. It is submitted by counsel for the applicants that the FIR lodged by respondent No.2 is bad on the ground that the same was lodged after receiving notice of proceedings under Section 27 of Special Marriage Act. It is submitted that respondent No.2 appeared before the Court and filed an application under Order 7 Rule 11 CPC on 20/12/2023. Trial Court by order dated 11/01/2024 allowed the application filed under Order 7 Rule 11 CPC by respondent No.2 and dismissed the suit filed by 3 M.Cr.C No.13457/2024 the applicant as not maintainable. Against which, First Appeal No.447/2024 is pending. It is submitted that since the FIR was lodged on 23/02/2024 i.e. after the institution of proceedings under Section 27 of Special Marriage Act, therefore the same is bad being counter-blast in nature. Furthermore, no preliminary enquiry was conducted by the Police before registration of FIR and thus, the registration of FIR is bad in law. It is further submitted that the applicant No.4 is suffering from Kidney problem and Cancer, therefore her prosecution is bad in law.
3. Heard learned counsel for the applicants.
Whether the FIR was lodged by way of counter-blast?
4. So far as the contention of counsel for the applicants that since the FIR was lodged on 23/02/2024 and prior thereto a petition under Section 27 of Special Marriage Act was already instituted, therefore FIR in question is by way of counter-blast and thus liable to be quashed is concerned, the same is misconceived and is liable to be rejected.
5. The Supreme Court in the case of Pratibha v. Rameshwari Devi, reported in (2007) 12 SCC 369 has held as under:-
"14. From a plain reading of the findings arrived at by the High Court while quashing the FIR, it is apparent that the High Court had relied on extraneous considerations and acted beyond the allegations made in the FIR for quashing the same in exercise of its inherent powers under Section 482 of the Code. We have already noted the illustrations enumerated in Bhajan Lal case [1992 Supp (1) SCC 335 : 1992 SCC (Cri) 426] and from a careful reading of these illustrations, we are of the view that the allegations emerging from the FIR are not covered by any of the illustrations as noted 4 M.Cr.C No.13457/2024 hereinabove. For example, we may take up one of the findings of the High Court as noted hereinabove. The High Court has drawn an adverse inference on account of the FIR being lodged on 31-12-2001 while the appellant was forced out of the matrimonial home on 25-5- 2001.
15. In our view, in the facts and circumstances of the case, the High Court was not justified in drawing an adverse inference against the appellant wife for lodging the FIR on 31-12-2001 on the ground that she had left the matrimonial home at least six months before that. This is because, in our view, the High Court had failed to appreciate that the appellant and her family members were, during this period, making all possible efforts to enter into a settlement so that Respondent 2 husband would take her back to the matrimonial home. If any complaint was made during this period, there was every possibility of not entering into any settlement with Respondent 2 husband.
16. It is pertinent to note that the complaint was filed only when all efforts to return to the matrimonial home had failed and Respondent 2 husband had filed a divorce petition under Section 13 of the Hindu Marriage Act, 1955. That apart, in our view, filing of a divorce petition in a civil court cannot be a ground to quash criminal proceedings under Section 482 of the Code as it is well settled that criminal and civil proceedings are separate and independent and the pendency of a civil proceeding cannot bring to an end a criminal proceeding even if they arise out of the same set of facts. Such being the position, we are, therefore, of the view that the High Court while exercising its powers under Section 482 of the Code has gone beyond the allegations made in the FIR and has acted in excess of its jurisdiction and, therefore, the High 5 M.Cr.C No.13457/2024 Court was not justified in quashing the FIR by going beyond the allegations made in the FIR or by relying on extraneous considerations.
22. For the reasons aforesaid, we are inclined to interfere with the order of the High Court and hold that the High Court in quashing the FIR in the exercise of its inherent powers under Section 482 of the Code by relying on the investigation report and the findings made therein has acted beyond its jurisdiction. For the purpose of finding out the commission of a cognizable offence, the High Court was only required to look into the allegations made in the complaint or the FIR and to conclude whether a prima facie offence had been made out by the complainant in the FIR or the complaint or not."
6. Thus, it is clear that merely because the FIR was lodged after the institution of proceedings under Hindu Marriage Act/ Special Marriage Act, would not ipso facto mean that FIR was lodged by way of counter- blast warranting its quashment. On the contrary, it appears that when the wife realized that now all the chances of reconciliation are over and chances of protecting her married life are bleak, then if she decides to lodge the FIR then it cannot be said that it is by way of counter-blast but on the contrary, wife did not lodge the FIR only in order to save her marital life. Even otherwise, the findings given by the Civil Court are not binding on the Criminal Court and both the proceedings are to be decided on the basis of allegations made therein. The degree of proof in both the cases is different.
7. Under these circumstances, the contention of counsel for the applicants that since the FIR was lodged after the institution of petition 6 M.Cr.C No.13457/2024 under Section 27 of Special Marriage Act is bad, is concerned, the same is misconceived and it is hereby rejected.
Whether preliminary enquiry is necessary before lodging of FIR or not?
8. The Supreme Court in the case of Lalita Kumari Vs. Government of Uttar Pradesh and Others reported in (2014) 2 SCC 1 has held as under :-
"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 informant forthwith and not later 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 7 M.Cr.C No.13457/2024 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.
120.7 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. 120.8. 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."
9. Thus, it is clear that holding of preliminary enquiry in the family matters has not been made mandatory but it is desirable. Merely because 8 M.Cr.C No.13457/2024 preliminary enquiry was not conducted, it would not mean that FIR would stand vitiated.
10. The Supreme Court in the case of Central Bureau of Investigation (CBI) and Anr. Vs. Thommandru Hannah Vijayalakshmi @ T.H. Vijayalakshmi and Anr. decided 8.10.2021 in Criminal Appeal No.1045/2021 has held as under :-
"15. 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 1973, 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 9 M.Cr.C No.13457/2024 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 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) 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 10 M.Cr.C No.13457/2024 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 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) 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 11 M.Cr.C No.13457/2024 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) 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.
12 M.Cr.C No.13457/202416. 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 observed:
"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 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] , 13 M.Cr.C No.13457/2024 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)
17. The decision of a two Judge Bench in Managipet (supra) thereafter has noted that while the decision in Lalita Kumari (supra) held that 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 police officer is 14 M.Cr.C No.13457/2024 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].
15 M.Cr.C No.13457/202433. 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 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 16 M.Cr.C No.13457/2024 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)
18. 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 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 17 M.Cr.C No.13457/2024 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 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.
18 M.Cr.C No.13457/2024State 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, 19 M.Cr.C No.13457/2024 in an appropriate case, 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 20 M.Cr.C No.13457/2024 and/or power at all to conduct such an enquiry at pre-registration of FIR stage."
(emphasis supplied)
19. 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 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."
11. Thus, it is clear that in given set of circumstances preliminary enquiry may be desirable but non-holding a preliminary inquiry will not vitiate the FIR. Accordingly, the FIR lodged against the applicants cannot be quashed on the ground that preliminary enquiry was not conducted.
Whether the medical ailment of applicant No.4 can be a sufficient ground to quash the proceedings?
12. It is the contention of applicants that applicant No.4 is suffering from Cancer as well as from Kidney problems, therefore prosecution may be quashed.
13. Without doubting the averment with regard to medical ailment of applicant No.4, it is held that merely because an accused is suffering from medical ailment, the same cannot be a ground to quash the criminal proceedings. However, applicant No.4 is granted liberty that in case if it is required, then she can move an application for her permanent 21 M.Cr.C No.13457/2024 exemption by making a request that she may be treated as represented by her counsel. If such an application is filed, then Trial Court shall consider and decide the same after considering medical documents of applicant No.4.
14. No other argument is advanced by counsel for the applicants.
15. Considering the totality of facts and circumstances of the case, this Court is of considered opinion that no case is made out warranting interference.
16. Application fails and is hereby dismissed.
(G.S. AHLUWALIA) JUDGE S.M. Digitally signed by SHANU RAIKWAR Date: 2024.04.08 18:03:55 +05'30'