Karnataka High Court
Sri. L. Sathish Kumar vs State Of Karnataka on 22 May, 2023
Author: K.Natarajan
Bench: K.Natarajan
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF MAY, 2023
BEFORE
THE HON'BLE MR. JUSTICE K.NATARAJAN
WRIT PETITION No.6732 OF 2023
BETWEEN
SRI. L. SATHISH KUMAR
S/O G LAKSHMAN RAO,
AGED ABOUT 60 YEARS,
RETIRED ADDITIONAL COMMISSIONER
OF COMMERCIAL TAXES,
SMR ZONE-1, VTK-1,
GANDHINAGAR,
BANGALORE-560009.
PERMANENT R/O,
NO.1247, 3RD CROSS,
PADUVANA ROAD,
T K LAYOUT,
MYSORE - 570 023.
... PETITIONER
(BY SRI SANDESH J. CHOUTA, SENIOR ADVOCATE
FOR SRI SUNIL KUMAR S, ADVOCATE)
AND
STATE OF KARNATAKA
BY ANTI CORRUPTION BUREAU,
SOUTHERN RANGE MYSURU
(NOW BY KARNATAKA LOKAYUKTA),
REPRESENTED BY SPECIAL PUBLIC PROSECUTOR
KARNATAKA LOKAYUKTA,
M S BUILDING, DR .B.R AMBEDAR VEEDI,
BENGALURU - 560 001.
... RESPONDENT
(BY SRI B.B. PATIL, SPECIAL COUNSEL)
2
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF CONSTITUTION OF INDIA READ WITH SECTION
482 OF CR.P.C. PRAYING TO QUASH THE FIR AND SOURCE
REPORT IN CRIME NO.01/2020 DATED 16.03.2020 REGISTERED
BY THE ACB (NOW BY LOKAYUKTA) MYSURU FOR OFFENCE
P/U/S. 13(1)(B) READ WITH 13(2) OF THE PREVENTION OF
CORRUPTION ACT (AMENDED ACT, 2018) AGAINST THE
PETITIONER VIDE ANNEX-A.
THIS WRIT PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 20.4.2023 THIS DAY, THE COURT
MADE THE FOLLOWING:
ORDER
This petition is filed by the petitioner-accused under Section 482 of Cr.P.C. for quashing the FIR in Crime No.1/2020 registered by the then ACB, Mysuru (Now Lokayuktha) for the offence punishable under Section 13(1)(b) read with Section 13(2) of the Prevention of Corruption Act, 2018 (for short 'P.C. Act').
2. Heard the arguments of learned Senior counsel for the petitioner and learned Special counsel for the respondent-Lokayuktha.
3. The case of the prosecution is that the petitioner was said to be working as the Additional Commissioner of Commercial Taxes, SMR Division, Excise 3 Department, Bengaluru since 22 years and during his tenure, he has amassed wealth more than the known source of income to the tune of Rs.1,10,63,991/- than the known source of income which amounts to 122.93%. The Lokayuktha Police have calculated the value of assets i.e., movable and immovable property to the tune of 1,34,63,991/- and expenditures were Rs.66,00,000/-
which amounts to Rs.20,063,991/- and his known source of income was Rs.90,00,000/-, thereby, Rs.1,10,93,991/-
was excess assets than the known source of income. After registering the case, the ACB Police took up the investigation. Now presently, the investigation is taken up by the Lokayuktha Police which is under challenge.
4. The learned Senior counsel for the petitioner has contended that the Lokayuktha Police while taking the asset for calculation, they have taken the assets belongs to his wife as well as father. The wife of the petitioner is also a Government employee and the loan taken by the petitioner for Rs.22,00,000/- from Canara Bank has not 4 been considered. The expenditure is not specific, there is no split up. Considering the family as one unit for the purpose of assessing the assets, but they have not considered the income of the family members. It is not a case as the property is owned by the petitioner under Benami name. Absolutely, there is no material against the petitioner. There is no source report collected by the Police before registering the FIR, directly they registered the case without any substance. The learned counsel further contended that no prior sanction has been sought for registering the FIR under Section 17(A) of the P.C. Act.
There is no preliminary enquiry conducted by the police before registering the FIR. The preliminary enquiry is necessary to know the earning members of the family and their properties. It is further contended that the father of the petitioner was also a retired Government servant. He has declared the income of Rs.1,90,00,000/- for about 30 years. The mother of the petitioner is also receiving Rs.23,00,000/- as pension. The wife of the petitioner has declared income of Rs.54,00,000/- and son of the 5 petitioner is working as an Engineer in Australia and he has contributed Rs.22,00,000/- per annum. There is no check period for calculating the assets and liabilities of the petitioner. Hence, prayed for quashing the FIR.
5. Per contra, learned counsel for the respondent has contended that there is no preliminary enquiry required. The check period was from 1997 to till date.
The petitioner was involved in a trap case and during the trap, he was found in possession of huge assets. The matter is required for investigation. The FIR cannot be quashed. The Hon'ble Supreme Court has held that the Court cannot sit as an auditor in calculating the income.
Therefore, prayed for dismissing the petition.
6. Having heard the arguments and on perusal of the records, admittedly, the Lokayuktha Police registered the FIR against the petitioner for the alleged offence under Sections 13(1)(b) and 13(2) of the P.C. Act. The case was registered on 16.03.2000. The learned Senior counsel has contended that under Section 13(1)(b) of P.C. Act, the 6 alleged offence was not in statute book which is non existing provision. Therefore, the very registering the FIR for the said offence is not correct.
7. The learned Senior counsel for the petitioner has further contended that by way of amendment to the P.C. Act, 2018 with effect from 26.07.2018, Section 13(1)(e) of P.C. Act itself is deleted and brought new Section as Section 13(1)(a) and (b), therefore, Section 13(1)(e) is not sustainable and further contended that as per the new amendment Act, Section 17(A) of P.C. Act, an enquiry or inquiry or investigation of the offences related to recommendation made or decision taken by the public servant in discharge of official functions, the police shall not proceed without approval or sanction of the Disciplinary Authority.
8. The learned Senior counsel for the petitioner further contended that absolutely there is no permission obtained by the Investigating Officer for registering FIR or 7 proceeding with the investigation. On that ground, prayed for quashing the FIR.
9. On perusal of the arguments addressed by the learned Senior counsel, the respondent counsel has not produced any material to show that the police have obtained any prior permission of the Sanctioning Authority to proceed against the petitioner. The FIR has been registered even without any source reports. Even there is no preliminary enquiry made by the ACB Police prior to registering the FIR. Of course, it is contended that the petitioner was involved in a trap case and therefore, it is contended by the respondent counsel that the preliminary enquiry or permission is not required. But the very foundation for registering the FIR alleging against the petitioner that he has amassed wealth more than the known source of income and definitely, a source report is required and preliminary enquiry is also required in order to verify the veracity of the allegations against the petitioner whether it is genuine or not. Absolutely, there is 8 no such preliminary enquiry has been made on the basis of any source report as it was not at all collected by the ACB Police.
10. The learned Senior counsel for the petitioner has relied upon the judgment of the Co-ordinate Bench of this Court in the case of Sri K.R. Kumar Naik vs. State by ACB in W.P.No.7911/2022 dated 26.07.2022 and the Co-ordinate Bench by relying upon the judgment of the Hon'ble 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:
"On the bedrock of the principles laid down by the Apex Court in the cases of P.SIRAJUDDIN, LALITA KUMARI and CHARANSINGH, if the case at hand is considered, what would unmistakably emerge is that the entire proceedings instituted by the ACB against the petitioner cannot but be termed to be a mockery of the procedure. The very perusal of the source information report which had to contain all the particulars would 9 indicate that it does not contain any particulars. It was no source information report in the eye of law. In cases where a public servant is charged with offences punishable under Section 13 of the Act to become punishable under Section 13(2) of the Act, as they deal with amassing wealth disproportionate to the known sources of income, every ingredient that is required to be assessed in the source report must be present.
The check period, the period of service of the accused Government servant and the sources of income should be assessed albeit, by a preliminary inquiry to arrive at a prima facie conclusion that the officer is liable to be proceeded against for criminal misconduct.
14. The afore-quoted incident of discovery of certain material allegedly belonging to the petitioner could at best have triggered the conduct of a preliminary enquiry and could not become the basis for registration of an FIR, as has been done. There is no preliminary inquiry worth the name that is even conducted by the ACB in the case of the 10 petitioner as every act of the ACB i.e., preparation of the source information report, registration of FIR and conduct of search on the house of the petitioner have all happened on one single day - 24 hours. A source information report, according to the norm or procedure what is followed by the ACB, requires an Inspector of Police to conduct such enquiry and collect those documents which would become a part of a source information report and such source information report is to be placed before the Deputy Superintendent of Police who would then give his nod for registration of the crime. These procedures and the time required for these procedures are thrown to the winds. A perusal at the original records that were placed before the Court would also indicate no collection of any material, in the nature of preliminary inquiry or a source information report taking place prior to registration of the FIR. All that the file contains is the search conducted in Crime No.23 of 2022 concerning some other officer and that material being used against the petitioner to register the crime in Crime No.24 of 2022. Every record is sought to be built up 11 subsequent to the said date i.e., the date of registration of the crime against the petitioner.
15. Therefore, it becomes a fit case, where this Court cannot turn a blind eye to the plea of petitioner for exercise of jurisdiction of this Court under Section 482 of the Cr.P.C. and obliterate registration of crime against the petitioner, failing which, it would become a classic illustration of a case becoming an abuse of process of law and resulting in miscarriage of justice and above all, putting a premium on the action of the ACB, notwithstanding the fact that 'the ACB blissfully ignored the ABC of procedure'."
11. In another judgment of the Co-ordinate Bench of this Court in the case of Balakrishna H.N. vs. ACB, Mysuru dated 03.01.2023 in W.P.No.15886/2022, in a similar case has quashed the FIR and held at paragraph No.11 which is as under:
"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 12 v. THOMMANDRU HANNAH VIJAYALAKSHMI & ANOTHER1 (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 1 2021 SCC OnLine 923 13 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)
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:
14"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 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. 15 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 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:16
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)
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".
17The 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 the contentions which was pressed before the Court was that in certain situations, 18 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:
19"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 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 20 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 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 21 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 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 22 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 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 23 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 24 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, 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 25 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 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 26 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 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 27 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 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 28 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)
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 29 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, 30 fraud, embezzlement, serious economic offences, illegal trading in narcotics and psychotropic 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 31 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 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 32 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 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 33 necessary in law only in cases concerning disproportionate assets, I deem it appropriate to obliterate the crime and pass the following. The writ petition is allowed, the FIR stands quashed."
12. The above said two judgments have been followed by the Co-ordinate Bench of this Court by relying upon the another judgment of the Co-ordinate Bench in the case of Navaneeth Mohan vs. SHO, ACB and another in W.P.No.43817/2018 dated 21.04.2021. In view of the Principle laid down by the Co-ordinate Bench of this Court where a disproportionate case before registering the FIR, a preliminary enquiry is required by collecting the source reports. In this case, absolutely, there is no source report collected and there is no preliminary enquiry conducted for forming an opinion to register the FIR. Apart from that, there is no sanction or permission obtained for registering the FIR as required under Section 17(A) of the P.C. Act. Therefore, the FIR against the petitioner is not sustainable under the law.
3413. Though the learned counsel for the petitioner has contended regarding non calculation of the assets of the father's pension, sons income and the income of the wife of the petitioner who is also an employee and vehicle belongs to the son, father and also his wife and vehicle also been calculated by the Investigating Officer which is not considered by the Investigating Officer while registering the FIR. However, the Court cannot sit and calculate every assets and liabilities including the expenditures by doing the work of audit as held by the Hon'ble Supreme Court in the case of CBI and Another vs. Thommandru Hannah Vijayalakshmi reported in 2021 SCC OnLine Hon'ble Supreme Court 923.
14. Apart from that, there is no proper averments in the FIR as to what is the check period and even otherwise, the FIR has been registered for Section 13 (1)(e) of the P.C. Act, the said provision has been already deleted by the Legislature by way of amendment brought on statute with effect from 26.07.2018. Therefore, the 35 police have purposely registered the FIR for non existing provisions in order to avoid the obtaining the permission under Section 17(A) of the P.C. Act. Therefore, in my considered view, the FIR is baseless and continuing the investigation against the petitioner is nothing but abuse of process of law and liable to be quashed.
15. Accordingly, the petition is allowed.
The FIR against the petitioner in Crime No.1/2020 registered by the ACB (Now Lokayuktha) Mysuru, is hereby quashed.
Sd/-
JUDGE GBB