R.Mahendran vs The Chief Secretary on 10 October, 2013

[Cites 33, Cited by 0]

Madras High Court

R.Mahendran vs The Chief Secretary on 10 October, 2013

Mr.R.Mahendran filed W.P.(MD)No.19558 of 2013 against the respondents herein praying for issuance of a Writ of Mandamus directing the third respondent herein, namely The Director, Vigilance and Anti Corruption, Chennai-600 009 [in short “DVAC”], to conduct a detailed enquiry on his complaint dated 10.10.2013 against the fourth respondent for the alleged purchase of huge assets, particularly those mentioned in his complaint, disproportionate to his known source of income by abuse of his public office within a stipulated time.

2. A Division Bench of this Court, after taking note of the materials placed and also the judgment rendered by a Constitution Bench of the Hon'ble Supreme Court of India in Lalita Kumari v. Government of Uttar Pradesh and Others [2013 (6) CTC 353 = (2014) 2 SCC 1] and recording the statement of undertaking given on behalf of the http://www.judis.nic.in 3 respondents that enquiry will be completed and action will be taken in accordance with law, has disposed of the writ petition accordingly, vide order dated 07.01.2014.

3. The Writ Petition was listed on 16.02.2018 under the caption “For Reporting Compliance” as to the fate of the preliminary enquiry No. 20/2013/PUB/HQ dated 13.09.2013 against the fourth respondent and time was sought to get necessary instructions. A Compliance Report was filed on the next date of hearing on 01.03.2018, wherein it has been stated as per the Final Report of the DVAC dated 13.01.2014, a decision has been taken to drop further action against the fourth respondent and the same has been accepted by the Government, vide letter dated 04.02.2014.

4. This Court, taking into consideration Statement No.IV of the Report dated 13.01.2014 as well as the contents of the same, was of the view that a detailed report as regards the occupation of the fourth respondent before becoming the Member of Legislative Assembly [MLA] in the form of sworn affidavit to be filed by the third respondent and further directed the Vigilance Commissioner, Public (SC) Department, Government of Tamil Nadu to produce the files relating to http://www.judis.nic.in 4 the letter dated 04.02.2014.

5. Accordingly, a Status Report was filed by the Additional Superintendent of Police, Special Investigation Cell, Vigilance and Anti Corruption, Chennai dated NIL. The Compliance Report of the third respondent dated 01.03.2018 as well as the affidavit dated 23.03.2018 were submitted and those reports were perused. This Court also heard the submissions of Mr.G.Prabhu Rajadurai, learned counsel for the petitioner, Mr.K.Chellapandian, learned Additional Advocate General for the respondents 1 to 3 and Mr.M.Mahaboob Athiff for M/s.Ajmal Associates, who appeared for the fourth respondent. This Court has note of the rival submissions and also gone through the Manual of the Directorate and Vigilance and Anti Corruption, Tamil Nadu, Second Education dated 30.12.1992 and in the light of the said Vigilance Manual has considered the Status Report dated NIL, Compliance Report of the third respondent dated 01.03.2018 as well as the affidavit dated 23.03.2018.

6. This Court having found that the fixation of check period was not proper and it should have been fixed from 1996 onwards for the reason that the fourth respondent was the Vice President and Vice http://www.judis.nic.in 5 Chairman of Local Body between 1996 and 2011, observed as follows:

“32. This Court has already observed that the directives given in the Manual of the DVAC have not been followed in letter and spirit by the Investigating Officer who conducted the preliminary enquiry.

33. This Court on a thorough perusal, appraisal and consideration of the materials placed before it, is of the considered view that the preliminary enquiry has not at all been done properly and therefore, it is to be done once again by fixing the check period from 1996 onwards. The fourth respondent, at present, is a Minister in Council of Ministers and taking into consideration of this position, this Court is of the considered view that the preliminary enquiry is to be conducted by an officer belonging to Indian Police Service (I.P.S.) in the cadre of Superintendent of Police and the said official is to be nominated by the Director of DVAC, Chennai-16.

34. In the light of the reasons assigned above, the third respondent is directed to nominate an I.P.S. Officer in the rank of Superintendent of Police to conduct a fresh preliminary enquiry by fixing the check period from 1996 i.e., the date on which he became the Vice President and Vice Chairman of Thiruthangal Town Panchayat till February, 2018 and a periodical status report is to be filed before this Court as to the progress being made in the preliminary enquiry as ordered by this Court and shall be filed before this Court in a sealed cover on 03.08.2018. List the Writ Petition on 06.08.2018.

35. The present order based on the Compliance Report is passed in public interest and also in the interest of purity of administration.”

7. It is to be noted at this juncture that the order dated 12.06.2018 passed by this Court in this writ petition have not been put to challenge. In the light of the directions given in para 34 of the order dated 12.06.2018, Tmt.P.Kannammal. I.P.S., was appointed as the Enquiry http://www.judis.nic.in 6 Officer and on her transfer, Tmt.S.Lakshmi, I.P.S. Superintendent of Police, Western Range, Anti-Corruption, Central Range, Chennai was directed to continue with the preliminary enquiry and thereafter, Tmt.S.Lakshmi I.P.S., has been transferred and Tmt.R.Ponni, I.P.S. Superintendent of Police, Vigilance and Anti Corruption, Central Range, Chennai-16 was appointed as the Enquiry Officer.

8. Tmt.R.Ponni, I.P.S., has submitted a Preliminary Enquiry Report dated NIL holding that for the check period between 25.08.1996 and 31.03.2018, the fourth respondent was the Minister of Information and Special Programme Implementation, now Minister of Dairy Development, Government of Tamil Nadu, acquired and was in possession of properties in his name, which are disproportionate to his known source of income to the extent of Rs.16,04,962/- [the percentage of Disproportionate Assets is 5.03% @ 5%] for which he is unable to account for satisfactorily. It appears that the said report has been forwarded to the Chief Vigilance Commissioner, who accepted the said report and forwarded the same to the Public (Strictly Confidential), Department of the Government of Tamil Nadu and the Government, vide communication dated 10.08.2019 in Letter No.AC/119-13/2017 informed DVAC, Chennai-600 016 that after careful examination of the Report http://www.judis.nic.in 7 dated 25.07.2019, has decided to drop further action against the fourth respondent.

9. The Status Reports filed periodically as well as the Preliminary Enquiry Report and the communication of the Government were directed to be kept in sealed covers and were entrusted to the custody of the Registrar Judicial of this Court. Thereafter, the case was called on numerous occasions and on most of the hearing dates, there was no representation either by the petitioner or his Counsel.

10. Mr.A.Natarajan, learned Public Prosecutor appearing for the State would submit that in compliance of the order dated 12.06.2018 made in this writ petition, an I.P.S. Officer in the rank of Superintendent of Police was appointed as the Enquiry Officer and Tmt.R.Ponni, I.P.S. Superintendent of Police, Vigilance and Anti-Corruption, Central Range, Chennai, after examination of 90 witnesses and after collecting 94 documents, had concluded that the assets disproportionate to the known source of income at the hands of the fourth respondent is 5.03% @ 5%, for which the fourth respondent is unable to account satisfactorily and the same was routed through the Chief Vigilance Commissioner to the Government, who upon considering the Preliminary Enquiry Report with http://www.judis.nic.in 8 supporting documents, has decided to drop further action as the percentage of disproportionate assets is less than 10% of the total income in the light of the decision rendered by the Hon'ble Supreme Court of India in Krishnanand Agnihotri v. The State of Madhya Pradesh [1997 (1) SCC 816].

11. The learned Public Prosecutor appearing for the State would further contend that a Constitution Bench of the Hon'ble Supreme Court of India in Lalita Kumari v. Government of Uttar Pradesh and Others [(2014) 2 SCC 1], has concluded to issue directions in para 120 and as per sub-para 6 of para 120, categories of cases was given in which preliminary enquiry may be made and one of the cases pertain to corruption cases and accordingly, Preliminary Enquiry was conducted and since it has been concluded in the Preliminary Enquiry that the assets disproportionate at the hands of the fourth respondent/Minister is 5.03%, a fair decision has been taken by the Government to drop further action and it cannot be faulted with.

12. The learned Public Prosecutor has also drawn the attention of this Court to the judgment dated 06.12.2019 made in C.A.No.1663 of 2019 [The State of Telangana v. Sri Managipet @ Mangipet http://www.judis.nic.in 9 Sarveshwar Reddy] and would submit that the ratio laid down in Lalita Kumari case (cited supra) has also been taken note of and held in Para 33 that “The purpose of a preliminary inquiry is to screen wholly frivolous and motivated complaints, in furtherance of acting fairly and objectively”. Accordingly, the Preliminary Enquiry has been conducted fairly and properly and a conscious and an independent decision has been taken to drop further action and hence, prays for dismissal of this writ petition.

13. Mr.I.Subramaniam, learned Senior Counsel and Mr.Ajmal Khan, learned Senior Counsel assisted by Mr.Mahaboob Athiff, learned counsel appearing on behalf of the fourth respondent has drawn the attention of this Court to their written submissions dated 12.02.2020 and would submit that the preliminary enquiry has been conducted and concluded in accordance with the earlier order dated 12.06.2018 passed in this writ petition and an high ranking official, namely Superintendent of Police, conducted preliminary enquiry in an unbiased and impeccable manner and submitted the findings in the form of Preliminary Enquiry Report and on an independent application of mind, the Government has accepted it and decided to drop further action and as such, this Court may not issue any further direction and prays for acceptance of the decision http://www.judis.nic.in 10 taken by the Government to drop further action against the fourth respondent and close this writ petition.

14. This Court paid it's anxious consideration and best attention to the rival submissions and also perused the Preliminary Enquiry Report.

15. It is relevant to extract the concluding portions of the Preliminary Enquiry Report dated Nil submitted by Tmt.R.Ponni, I.P.S., Superintendent of Police, Vigilance and Anti Corruption, Central Range, Chennai :

“130) ABSTRACT SHOWING THE QUANTUM / PERCENTAGE OF DISPROPORTIONATE ASSETS ACQUIRED BY THE SUSPECT OFFICER TR.K.T.RAJENTHIRA BHALAJI DURING THE CHECK PERIOD BETWEEN 25-08-1996 AND 31-03-2018 Statement -V Statement II – Statement I Assets acquired by the SO at the end of 2,14,93,603 the check period i.e., as on 31.03.2018 Assets acquired by the SO at the 16,57,680 beginning of the check period i.e., on 25.08.1996 Assets acquired by the SO during the 1,98,35,923 check period Statement -VI http://www.judis.nic.in 11 Statement III – Statement IV Income during the check period 3,18,83,385 between 25.08.1996 and 31.03.2018 by the SO Expenditure incurred during the check 1,36,52,424 period between 25.08.1996 and 31.03.2018 by the SO Likely Savings 1,82,30,961 Statement -VII Statement V – Statement VI Assets acquired by the SO during the 1,98,35,923 check period Likely savings of the SO 1,82,30,961 Disproportionate assets acquired 16,04,962 during the check period (Disproportionate Assets / Income) x 100 (16,04,962 / 3,18,83,385) x 100 = 5.03%

131) Thus, during the check period between 25-8-96 and 31-3-18, the Suspect Officer Tr.T.K.Rajenthra Bhalaji, formerly Minister of Information and Special Programme Implementation, now Minister of Dairy Development, Government of Tamil Nadu, acquired was in possession of properties in his name, which are disproportionate to his known source of income to the extent of Rs.16,04,962/- (the percentage of Disproportionate assets is 5.03% @ 5%) for which the Suspect Officer is unable to account for satisfactorily.” Annexure - I to the said report contains the List of Witnesses in PE 199/2018/PUB/HQ numbering 90 and Sl.Nos.89 and 90 are the earlier officers who conducted the Preliminary Enquiry and it appears that after http://www.judis.nic.in 12 examination of 90 witnesses, the submission of the fourth respondent was also recorded. Annexure -II to the said report contains the List of Documents in PE/199/2018/PUB/HQ and the said list contains the description of 94 documents collected during preliminary enquiry.

16. This Court, in the earlier order dated 12.06.2018, passed in the writ petition, had extracted relevant portions of the DVAC Manual, Government of Tamil Nadu, Second Edition dated 30.12.1992 and it is useful to extract the relevant portions of the said Manual:

PART IV.

PRELIMINARY ENQUIRIES.

18. Scope and procedure Usually, the first enquiry into a complaint or information is Circularmemo. in the nature of a Preliminary Enquiry. This Preliminary Enquiry should be conducted with the utmost secrecy. Witnesses should normally be contacted only through sources or otherwise, indirectly. Where it becomes necessary to contact them directly, the purpose of enquiry must be suitably camouflaged. Willingness of witnesses to make statements may be ascertained, but actual statements should not be Public (Ser-B), recorded. Departmental files and other records including those that may be available with private sources like Hotels, Lodging houses, Shops, etc., may be looked into. Departmental records may also be taken into custody wherever considered desirable in the interest of preserving any available evidence. Where there is some difficulty in taking them into custody, the Investigating Officer may peruse the records in the Department itself http://www.judis.nic.in and if a particular record were to be found important for 13 purposes of further enquiry, a written requisition should be given to the local responsible officer of the Department to keep that particular record in safe custody, under his personal responsibility, so that the record could he taken over, at a later stage, when required. Records with private parties may also be taken into custody, if the parties do not raise any objection. If objections are raised, summons from a Magistrate may be got issued by filing a written report before the Magistrate, indicating that an enquiry is being made 1 into the alleged commission of an offence connected with .. bribery, corruption, etc., and the need to secure the records concerned for the purpose of the enquiry.

PART Vlll CASES OF DISPROPORTIONATE ASSETS

67. Registration of Detailed Enquiry/Regular Case Illegal gratification obtained over a period of time leads to accumulation of assets/pecuniary resources disproportionate to one's known sources of income. A Public Servant is said to commit the offence of Criminal Misconduct under Section 13 (1) (e) of Prevention of Corruption Act 1988 (Central Act 49 of 1988)*, if he, or any person on his behalf, is in possession or has, at any time during the period of his office, been in possession for which the Public Servant cannot satisfactorily account, of pecuniary resources or properly disproportionate to his known sources of income. From the angle of departmental misconduct, possession of disproportionate assets leads to a conclusion that the Public Servant has not maintained absolute integrity. As such, a Detailed Enquiry or Regular Case is registered to coliect evidence of possession of disproportionate assets.

69. Plan of Enquiry/Investigation A Plan of Enquiry/Investigaton should be drawn up on registration of the Detailed Enquiry/Regular Case and the major constituents of this Plan of Enquiry/lnvestigation are

(i) Obtaining property statements of the Public Servant in the prescribed proformae through the Head of http://www.judis.nic.in Department/Undertaking, 14

(ii) Obtaining particulars of pay and allowances drawn by the Public Servant,

(iii) Evaluation of the buildings and other items of immovable property,

(iv) Computation of family consumption expenditure including such computation from the Department of Statistics,

(v) Scrutiny of Bank Accounts and Income Tax Returns and

(vi) Collection of information and evidence about concealed/benami assets, etc.

70. Check Period Check Period should be fixed taking Into account-

(i) Length of service of the Public Servant,

(ii) Start of assets acquiring activities,

(iii) Date of acquisition of the latest immovable property; and

(iv) Date of search conducted, if any.

The Check Period should neither be too long nor too short. It is advantageous to have a Check Period from 4 to 7 years. This, however, is not rigid and may be altered if , situation demands. It may become necessary to explain the rationale of fixing the Check Period as set out when the case comes up for trial or other enquiry.

71. Property Statements As soon as the Check Period is fixed, the Property Statements In Proformae 22 to 27, should be called for from the Public Servant through the Head of the Department/ Undertaking Under the Conduct rules, the Head of the Department, Undertaking Government can, at any time, require a Public Servant to furnish, within 2 period specified in the order, a full and complete statement of movable and immovable property held or acquired by him or on his behalf by any member of his family. Such statement shall include the means by which or the source from which such property was acquired. Any attempt to mislead and any failure to give full and correct information shall render the Public Servant liable to http://www.judis.nic.in severe disciplinary action. 15

74. Family Consumption Expenditure The average family consumption expenditure of the Public Servant is furnished by the Directorate of Statistics. it is based on the Consumer Price Index Numbers for Non- Manual employees issued by the Central Statistical Organisation, New Delhi. The Investigating Officer should furnish details regarding name, age, sex, pay particulars, period and place of stay during the Check Period, of the Public Servant and his family members. There are verifiable items of expenditure for which evidence may be collected by examining the relevant witnesses/documents. While including these items in the expenditure statement, care should be taken to deduct corresponding amount in the figures furnished by the Department of Statistics by examining the ORcial who has furnished the statistical figures. Where the Public Servant gives details of his expenditure, these may be taken into account subject to verification and reasonableness. Benefit of doubt should be given to the Public Servant wherever there is a dispute and verification is not possible.

75. Benami Assets (I) While investigating into allegations of possession of http://www.judis.nic.in disproportionate assets, quite often Investigating Officers 16 come across properties acquired by the Public Servants but held in the name of some other person.

(2) Where any person purchases property in the name oi another, for his own benefit, with no intent to make that other person the beneficiary thereof, it is called a "Benami transaction". The nominal owner is the benamidar. The simple import of the word of "benami" is that a purchaser desires to buy property but does not desire to buy in his own name and therefore, buys in the name of someone else.

(3) Under Section 13 (1) (e) of the Prevention of Corruption Act, 1988, such benami assets are also to be heated as assets acquired by the Pubiic Servant as the said section also uses the expression "or any person on his behalf is in possession".

17. The Hon'ble Supreme Court of India in the decision in Shashikant v. Central Bureau of Investigation and Others [(2007) 1 SCC 630], had taken into consideration its earlier decision in Vineet Narain v. Union of India [(1998) 1 SCC 226] wherein it was observed as follows:

“58.1.12. 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.”

18. It is a well settled position of law that DVAC Manual is only http://www.judis.nic.in 17 administrative in nature and any infraction/non adherence/non- compliance of the Vigilance Manual would not affect the validity of the prosecution and with regard to any deviation/non adherence/non compliance, the officer/person concerned may be visited with severe disciplinary action. The said proposition has been reiterated in the decision in Chief Commercial Manager, South Central Railway, Secundrabad and Others v. G.Ratnam and Others [(2007) 8 SCC 212].

19. In Parkash Singh Badal and Another v. State of Punjab and Others [(2007) 1 SCC 1], investigation by police and Cognizance by Magistrate and registration of F.I.R. disclosing commission of cognizable offence came up for consideration and it is relevant to extract the following portions of the said decision:

“63. Before dealing further whether the submissions ought to prevail, the legal principles governing the registration of a cognizable offence and the investigation arising thereon need to be noted. Section 154(1) is the relevant provision regarding the registration of a cognizable offence and that provision reads as follows:

“154. Information in cognizable cases.—(1) Every information relating to the commission of a cognizable offence, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction, and be read over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by http://www.judis.nic.in 18 such officer in such form as the State Government may prescribe in this behalf.”

64. The above sub-section corresponds to Section 154 of the old Code of 1898 to which various amendments were made by Act 26 of 1955 and also to Section 154 of the Code of Criminal Procedure of 1882 (Act 10 of 1882) except for the slight variation in that expression “local Government” had been used in 1882 in the place of “State Government”.

Presently, on the recommendations of the Forty-first Report of the Law Commission, sub-sections (2) and (3) have been newly added but we are not concerned with those provisions as they are not relevant for the purpose of the disposal of this case except for making some reference at the appropriate places, if necessitated. Section 154(1) regulates the manner of recording the first information report relating to the commission of a cognizable offence.

65. The legal mandate enshrined in Section 154(1) is that every information relating to the commission of a “cognizable offence” [as defined under Section 2(c) of the Code] if given orally (in which case it is to be reduced into writing) or in writing to “an officer in charge of a police station” [within the meaning of Section 2(o) of the Code] and signed by the informant should be entered in a book to be kept by such officer in such form as the State Government may prescribe which form is commonly called as “first information report” and which act of entering the information in the said form is known as registration of a crime or a case.

66. At the stage of registration of a crime or a case on the basis of the information disclosing a cognizable offence in compliance with the mandate of Section 154(1) of the Code, the police officer concerned cannot embark upon an enquiry as to whether the information laid by the informant is reliable and genuine or otherwise and refuse to register a case on the ground that the information is not reliable or credible. On the other hand, the officer in charge of a police station is statutorily obliged to register a case and then to proceed with the investigation if he has reason to suspect the commission of an offence which he is empowered under Section 156 of the Code to investigate, subject to the proviso to Section 157 thereof. In case an officer in charge of a police station refuses http://www.judis.nic.in to exercise the jurisdiction vested in him and to register a case 19 on the information of a cognizable offence reported and thereby violates the statutory duty cast upon him, the person aggrieved by such refusal can send the substance of the information in writing and by post to the Superintendent of Police concerned who if satisfied that the information forwarded to him discloses a cognizable offence, should either investigate the case himself or direct an investigation to be made by any police officer subordinate to him in the manner provided by sub-section (3) of Section 154 of the Code.

67. It has to be noted that in Section 154(1) of the Code, the legislature in its collective wisdom has carefully and cautiously used the expression “information” without qualifying the same as in Sections 41(1)(a) or (g) of the Code wherein the expressions “reasonable complaint” and “credible information” are used. Evidently, the non-qualification of the word “information” in Section 154(1) unlike in Sections 41(1)

(a) and (g) of the Code may be for the reason that the police officer should not refuse to record an information relating to the commission of a cognizable offence and to register a case thereon on the ground that he is not satisfied with the reasonableness or credibility of the information. In other words, “reasonableness” or “credibility” of the said information is not a condition precedent for registration of a case. A comparison of the present Section 154 with those of the earlier Codes will indicate that the legislature had purposely thought it fit to employ only the word “information” without qualifying the said word. Section 139 of the Code of Criminal Procedure of 1861 (Act 25 of 1861) passed by the Legislative Council of India read that “every complaint or information” preferred to an officer in charge of a police station should be reduced into writing which provision was subsequently modified by Section 112 of the Code of 1872 (Act 10 of 1872) which thereafter read that “every complaint” preferred to an officer in charge of a police station shall be reduced in writing. The word “complaint” which occurred in previous two Codes of 1861 and 1872 was deleted and in that place the word “information” was used in the Codes of 1882 and 1898 which word is now used in Sections 154, 155, 157 and 190(c) of the Code. An overall http://www.judis.nic.in reading of all the Codes makes it clear that the condition 20 which is sine qua non for recording a first information report is that there must be an information and that information must disclose a cognizable offence.

68. It is, therefore, manifestly clear that if any information disclosing a cognizable offence is laid before an officer in charge of a police station satisfying the requirements of Section 154(1) of the Code, the said police officer has no other option except to enter the substance thereof in the prescribed form, that is to say, to register a case on the basis of such information.

----

70. The next key question that arises for consideration is whether the registration of a criminal case under Section 154(1) of the Code ipso facto warrants the setting in motion of an investigation under Chapter XII of the Code.

71. Section 157(1) requires an officer in charge of a police station who “from information received or otherwise” has reason to suspect the commission of an offence—that is a cognizable offence—which he is empowered to investigate under Section 156, to forthwith send a report to a Magistrate empowered to take cognizance of such offence upon a police report and to either proceed in person or depute anyone of his subordinate officers not being below such rank as the State Government may, by general or special order, prescribe in this behalf, to proceed to the spot, to investigate the facts and circumstances of the case and if necessary, to take measures for the discovery and arrest of the offender. This provision is qualified by a proviso which is in two parts—(a) and (b). As per clause (a) the officer in charge of a police station need not proceed in person or depute a subordinate officer to make an investigation on the spot if the information as to the commission of any such offence is given against any person by name and the case is not of a serious nature. According to clause (b), if it appears to the officer in charge of a police station that there is no sufficient ground for entering on an investigation, he shall not investigate the case. Sub-section (2) of Section 157 demands that in each of the cases mentioned in clauses (a) and (b) of the proviso to sub-section (1) of Section 157, the officer in charge of the police station must state in his report, required to be forwarded to the Magistrate his reasons http://www.judis.nic.in for not fully complying with the requirements of sub-section 21 (1) and when the police officer decides not to investigate the case for the reasons mentioned in clause (b) of the proviso, he in addition to his report to the Magistrate, must forthwith notify to the informant, if any, in such manner as may be prescribed by the State Government, the fact that he will not investigate the case or cause the case to be investigated. Section 156(1) which is to be read in conjunction with Section 157(1) states that any officer in charge of a police station may without an order of a Magistrate, investigate any cognizable case which a court having jurisdiction over the local area within the limits of the police station concerned would have power to enquire into or try under provisions of Chapter XIII. Section 156(3) vests a discretionary power on a Magistrate empowered under Section 190 to order an investigation by a police officer as contemplated in Section 156(1). It is pertinent to note that this provision does not empower a Magistrate to stop an investigation undertaken by the police. (See State of Bihar v. J.A.C. Saldanha [(1980) 1 SCC 554 : 1980 SCC (Cri) 272] ) In that case, power of the Magistrate under Section 156(3) to direct further investigation after submission of a report by the investigating officer under Section 173(2) of the Code was dealt with. It was observed as follows: (J.A.C. Saldanha case [(1980) 1 SCC 554 : 1980 SCC (Cri) 272] , SCC p. 568, para 19) “19. The power of the Magistrate under Section 156(3) to direct further investigation is clearly an independent power and does not stand in conflict with the power of the State Government as spelt out hereinbefore. The power conferred upon the Magistrate under Section 156(3) can be exercised by the Magistrate even after submission of a report by the investigating officer which would mean that it would be open to the Magistrate not to accept the conclusion of the investigating officer and direct further investigation. This provision does not in any way affect the power of the investigating officer to further investigate the case even after submission of the report as provided in Section 173(8).” The above position has been highlighted in State of Haryana v. Bhajan Lal [1992 Supp (1) SCC 335 : 1992 SCC (Cri) 426].” http://www.judis.nic.in 22 The Hon'ble Supreme Court of India, in the said decision, has also taken note of the submission as to the allegation of complaint having filed by a political opponent actuate by malice and in para 62 observed that “So far as the allegation that political opponent had lodged the complaint is concerned, that itself is not sufficient for the court to interfere. When the allegation is made, investigation is undertaken to find out whether there is any substance in the allegation. Merely because the political opponent was the complainant that does not per se lead to an inference that the complaint has to be thrown out or that no notice should be taken thereof”. In para 68, the Hon'ble Supreme Court held that “It is, therefore, manifestly clear that if any information disclosing a cognizable offence is laid before an officer in charge of a police station satisfying the requirements of Section 154(1) of the Code, the said police officer has no other option except to enter the substance thereof in the prescribed form, that is to say, to register a case on the basis of such information”.

20. In Dharmeshbhai Vasudevbhai and Others v. State of Gujarat and Others [(2009) 6 SCC 576], distinguishment of the terms “investigation” and “inquiry” has been considered and in para 11 it was observed that “If an investigation was to be carried out in terms of http://www.judis.nic.in 23 Section 156(3) of the Code, the same could not have been equated with an enquiry as the two expressions have differently been defined in Section 3(h) and 3(i) of the Code”.

21. In Lalita Kumari v. Government of Uttar Pradesh and Others [(2014) 2 SCC 1 (CB)], a reference has been made i.e., “whether a police officer is bound to register an F.I.R. upon receiving information in relation to commission of cognizable offence under Section 154 of the Code of Criminal Procedure, 1973 or the police officer has the power to conduct a 'preliminary enquiry' in order to test the veracity of such information before registering the same?” The Hon'ble Supreme Court of India had considered catena of it's earlier decisions including the decision in Shashikant v. CBI [(2007) 1 SCC 630], Parkash Singh Badal v. State of Punjab [(2007) 1 SCC 1] and P.Sirajuddin v. State of Madras [(1970) 1 SCC 595]. In Para No.120 of the decision, the Hon'ble Supreme Court has given its conclusions and it is relevant to extract the same:

“Conclusion/Directions:

120) In view of the aforesaid discussion, we hold:

120.1. 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 http://www.judis.nic.in 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 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 dependon 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 http://www.judis.nic.in accused and the complainant, a preliminary inquiry should 25 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.” 21.1. In Para No.83, the Hon'ble Apex Court observed that “In terms of the language used in Section 154 of the Code, the police is duty-bound to proceed to conduct investigation into a cognizable offence even without receiving information (i.e. FIR) about commission of such an offence, if the officer in charge of the police station otherwise suspects the commission of such an offence”. The Legislative intent is therefore quite clear i.e., to ensure that every cognizable offence is promptly investigated in accordance with law. This being the legal position, there is no reason that there should be any discretion or option left with the police to register or not to register an FIR when information is given about the commission of a cognizable offence. Every cognizable offence must be investigated promptly in accordance with law and all information provided under Section 154 of the Code about the commission of a cognizable offence must be registered as an http://www.judis.nic.in 26 FIR so as to initiate an offence. The requirement of Section 154 of the Code is only that the report must disclose the commission of a cognizable offence and that is sufficient to set the investigating machinery into action”. (emphasis supplied) 21.2. In Para No.86, it was observed that “Accordingly, the right of the accused under Article 21 of the Constitution is protected if the FIR is registered first and then the investigation is conducted in accordance with the provision of law”.

21.3. In Para No.89, the Hon'ble Apex Court has considered the concept of 'preliminary inquiry' contemplated under the CBI Manual and observed that “Crime Manual is not a statute and has not been enacted by the Legislature. It is a set of administrative orders issued for internal guidelines 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”. (emphasis supplied).

21.4. The Hon'ble Apex Court, in Para No.93 onwards, has considered the significance and compelling reasons for registration of http://www.judis.nic.in 27 FIR at the earliest and concluded in Para No.105 that “Therefore, reading Section 154 in any other form would not only be detrimental to the scheme of the Code but also to the society as a whole. It is thus seen that this Court has repeatedly held in various decided cases that registration of FIR is mandatory if the information given to the police under Section 154 of the Code discloses the commission of a cognizable offence”.

21.5. The Hon'ble Supreme Court, from Para No.106 onwards has considered the issue as to the likelihood of misuse of the provision and in Para Nos.109 to 111, observed as follows:

“109. The registration of FIR under Section 154 of the Code and arrest of an accused person under Section 41 are two entirely different things. It is not correct to say that just because FIR is registered, the accused person can be arrested immediately. It is the imaginary fear that “merely because FIR has been registered, it would require arrest of the accused and thereby leading to loss of his reputation” and it should not be allowed by this Court to hold that registration of FIR is not mandatory to avoid such inconvenience to some persons. The remedy lies in strictly enforcing the safeguards available against arbitrary arrests made by the police and not in allowing the police to avoid mandatory registration of FIR when the information discloses commission of a cognizable offence.

110. This can also be seen from the fact that Section 151 of the Code allows a police officer to arrest a person, even before the commission of a cognizable offence, in order to prevent the commission of that offence, if it cannot http://www.judis.nic.in be prevented otherwise. Such preventive arrests can be valid 28 for 24 hours. However, a Maharashtra State amendment to Section 151 allows the custody of a person in that State even for up to a period of 30 days (with the order of the Judicial Magistrate) even before a cognizable offence is committed in order to prevent commission of such offence. Thus, the arrest of a person and registration of FIR are not directly and/or irreversibly linked and they are entirely different concepts operating under entirely different parameters. On the other hand, if a police officer misuses his power of arrest, he can be tried and punished under Section 166 IPC.

111. Besides, the Code gives power to the police to close a matter both before and after investigation. A police officer can foreclose an FIR before an investigation under Section 157 of the Code, if it appears to him that there is no sufficient ground to investigate the same. The section itself states that a police officer can start investigation when he has “reason to suspect the commission of an offence”. Therefore, the requirements of launching an investigation under Section 157 of the Code are higher than the requirement under Section 154 of the Code. The police officer can also, in a given case, investigate the matter and then file a final report under Section 173 of the Code seeking closure of the matter.

Therefore, the police is not liable to launch an investigation in every FIR which is mandatorily registered on receiving information relating to commission of a cognizable offence.” 21.6. The issue relating to preliminary inquiry was also considered by the Hon'ble Apex Court in Para Nos.117 to 119 wherein it was observed as follows:

“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.

118. Similarly, in Tapan Kumar Singh [CBI v.

http://www.judis.nic.in Tapan Kumar Singh, (2003) 6 SCC 175 : 2003 SCC (Cri) 29 1305] , this Court has validated a preliminary inquiry prior to registering an FIR only on the ground that at the time the first information is received, the same does not disclose a cognizable offence.

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)

22. The primordial submission made by the learned Public Prosecutor appearing for the State is that the preliminary enquiry has been conducted in detail by examining 90 witnesses and during the course of preliminary enquiry, 94 documents have been collected and the Superintendent of Police, Vigilance and Anti-Corruption, Chennai Range, Chennai has concluded that the fourth respondent, who is now http://www.judis.nic.in 30 the Minister for Dairy Development, Government of Tamil Nadu has acquired and was in possession of properties in his name, which are disproportionate to his known source of income to the extent of Rs. 16,04,962/- [the percentage of disproportionate assets is 5.03% @ 5%]. The Government of Tamil Nadu, taking into consideration the decision of the Hon'ble Apex Court in P.Sirajuddin v. State of Madras [(1970) 1 SCC 595] (cited supra) has decided to drop further action and it cannot be faulted with and may not be interfered with. The learned Senior Counsel appearing for the fourth respondent has also adopted the arguments of the learned Public Prosecutor.

23. This Court, taking into consideration the submissions made and upon perusing the materials placed, is of the view that the submission made by the learned Public Prosecutor and the learned Senior Counsel appearing for the fourth respondent lack merit for the following reasons.

➔ The Superintendent of Police, Vigilance and Anti-Corruption, Central Range, Chennai, under the guise of conducting preliminary enquiry in terms of DVAC Manual, has conducted full fledged investigation by examining as many as 90 witnesses including two http://www.judis.nic.in police officers, who earlier conducted the preliminary enquiry and 31 also recorded the statements of 94 witnesses. ➔ The contents of the Preliminary Enquiry Report with supporting documents prima facie discloses commission of cognizable offences, but curiously no First Information Report (FIR) came to be registered before carrying out the full fledged investigation under the garb of preliminary enquiry.

24. It is relevant to extract Section 17A of the Prevention of Corruption (Amendment) Act, 2018 :

17A. (1) No police officer shall conduct any enquiry or inquiry or investigation into any offence alleged to have been committed by a public servant under this Act, where the alleged offence is relatable to any recommendation made or decision taken by such public servant in discharge of his official functions or duties, without the previous approval— (a ) In the case of a person who is or was employed, at the time when the offence was alleged to have been committed, in connection with the affairs of the Union, of that Government;

(b ) In the case of a person who is or was employed, at the time when the offence was alleged to have been committed, in connection with the affairs of a State, of that Government;

(c) In the case of any other person, of the authority competent to remove him from his office, at the time when the offence was alleged to have been committed:

Provided that no such approval shall be necessary for cases involving arrest of a person on the spot on the charge of accepting or attempting to accept any undue advantage for himself or for any other person:

http://www.judis.nic.in 32 Provided further that the concerned authority shall convey its decision under this section within a period of three months, which may, for reasons to be recorded in writing by such authority, be extended by a further period of one month."".

25. The Government vide letter dated 06.09.2013 ordered yet another Preliminary Enquiry, based on which, DVAC ordered Preliminary Enquiry on 12.09.2013 and the same was registered on 13.09.2013. Subsequently, the present writ petition was filed wherein this Court, vide order dated 12.06.2018, has recorded a finding that the earlier preliminary enquiry has not at all been conducted properly and therefore, it has to be done once again by fixing the check period from 1996 onwards and accordingly, the present Preliminary Enquiry Report came to be filed holding that the assets disproportionate at the hands of the fourth respondent is around 5.03%, rounded to 5%.

26. The Director, DVAC, has forwarded the said report to the Principal Secretary to Government (FAC), Public (SC) Department, Government of Tamil Nadu, who vide letter dated 08.08.2019, has requested the learned Public Prosecutor, High Court, Madras to offer his opinion. Mr.A.Natarajan, learned Public Prosecutor offered his opinion dated 09.08.2019 stating that since the disproportionate assets is below http://www.judis.nic.in 33 10%, it would not amount to disproportionate income, as held in the decision in Krishanand Agnihotri v. The State of Madhya Pradesh [(1997) 1 SCC 816] and various judgments of the Hon'ble Supreme Court and this Court. Reliance placed by the learned Public Prosecutor on the judgment dated 06.12.2019 made in C.A.No.1663 of 2019 [The State of Telangana v. Sri Managipet @ Mangipet Sarveshwar Reddy] merely reiterates the legal proposition laid down in Lalita Kumari's case.

27. It is also to be noted at this juncture that the Hon'ble Supreme Court of India in the decision in Ashok Tshering Bhutia v. State of Sikkim [(2011) 4 SCC 402], while setting aside the conviction and sentence passed against the appellant therein under Section 13(2) r/w. 13(1)(e) of the Prevention of Corruption Act, 1988, has also considered P.Sirajuddin's case (cited supra) and observed as follows:

“17.This Court in P. Sirajuddin v. State of Madras [(1970) 1 SCC 595 : 1970 SCC (Cri) 240 : AIR 1971 SC 520] and State of Haryana v. Bhajan Lal [1992 Supp (1) SCC 335 : 1992 SCC (Cri) 426 : AIR 1992 SC 604] has categorically held that before a public servant is charged with an act of dishonesty which amounts to serious misdemeanour and an FIR is lodged against him, there must be some suitable preliminary enquiry into the allegations by a responsible officer. Such a course has not http://www.judis.nic.in been adopted by the prosecution though the law declared by 34 this Court is binding on everyone in view of the provisions of Article 141 of the Constitution, which would by all means override the statutory provisions of CrPC and such an irregularity is not curable nor does it fall within the ambit of Section 465 CrPC. However, as the issue is being raised first time before this Court, it is not worth further consideration. More so, the aforesaid observations do not lay down law of universal application.” Therefore, the submission made by the learned Public Prosecutor appearing for the State that in the Preliminary Enquiry, all aspects have been gone into and since the percentage of disproportionate assets is below 10%, would not amount to disproportionate income, is liable to be rejected and in the light of the detailed investigation done in the form of Preliminary Enquiry, an F.I.R. ought to have been registered and thereafter, further proceedings should have taken place.

28. The Principal Secretary to Government (FAC), Public (S.C.) Department, Government of Tamil Nadu, vide communication dated 10.08.2019 has informed the Director, Vigilance and Anti-Corruption, Chennai that after careful examination of the Report dated 25.07.2019, a decision has been taken to drop further action against the fourth respondent.

http://www.judis.nic.in 35

29. As already noted and observed by this Court, conducting preliminary enquiry in terms of DVAC Manual and it is not having any statutory force and a full fledged and thorough investigation has been done by examining as many as 90 witnesses and collecting 94 documents.

30. In the light of the ratio laid down in Lalita Kumari case (cited supra) relevant portions of which have been extracted in the earlier paragraphs, DVAC ought to have registered a case and then conducted the investigation. The files relating to Preliminary Enquiry have also been placed before this Court and as already noted, the Principal Secretary to Government (FAC), Public (SC) Department, Government of Tamil Nadu has sought the opinion of the learned Public Prosecutor, who offered his opinion that disproportionate assets below 10% would not amount to disproportionate income in the light of the decision cited supra and it appears that solely on the said opinion, the Government has thought fit to drop further action against the fourth respondent.

31. In Krishnanand Agnihotri v. The State of Madhya Pradesh [(1977) 1 SCC 816], the appellant was prosecuted for holding assets disproportionate to his known source of income and he was prosecuted http://www.judis.nic.in 36 under the Prevention of Corruption Act, 1947 (old Act) and was convicted and sentenced by the Trial Court. On appeal, the High Court has confirmed the conviction and sentence and hence preferred the said appeal. The primordial question arose for consideration before the Hon'ble Supreme Court was “whether in the facts of the case, the prosecution was justified in invoking the applicability of the presumption contained in sub-section (3) of Section 5 of the P.C. Act, 1947. The Hon'ble Supreme Court has taken into consideration oral and documentary evidence and after analyzing the same, held that the assets possessed by the appellant were thus in excess of the surplus income available to him, since the excess is comparatively small i.e., less than ten per cent of the total income of Rs.1,27,715.43 and it would not be right to hold that the assets found in the possession of the appellant were disproportionate to his known source of income, so as to justify the raising of the presumption under Section 5(3) of the PC Act. It is very pertinent to point out at this juncture that the case against the appellant therein has culminated into a Charge Sheet and after full fledged trial, he was convicted and sentenced by the Trial Court and on appeal, the conviction and sentence was also confirmed by the High Court and before the Hon'ble Supreme Court, the appellant has succeeded. Thus, in view of the laying of Charge Sheet, the prosecution has produced oral http://www.judis.nic.in 37 and documentary evidence and after full fledged trial, a finding has been reached, concluding that the appellant herein is punishable for commission of offence under the PC Act, 1947, holding the assets disproportionate to the known source of income.

32. In M.Krishna Reddy v. State Deputy Superintendent of Police, Hyderabad [(1992) 4 SCC 45], charge of possession of assets and pecuniary resources disproportionate to the known sources of income for prosecution under Section 5(1)(e) r/w. 5(2) of the P.C. Act, 1947 came up for consideration and it was held that initial burden of proof is on the prosecution and after that burden is discharged, onus shifts on the accused and for that limited purpose, the Hon'ble Apex Court in the said decision has considered Krishnanand case (cited supra) and ultimately reached the conclusion that since the disproportionate assets at the hands of the appellant is less than 10%, he has to be acquitted.

33. In the case on hand, the Superintendent of Police, Vigilance and Anti-Corruption, Central Range, Chennai has concluded that the disproportionate assets at the hands of the fourth respondent is 5.03% and the said Preliminary Enquiry Report, through proper channel, was forwarded to the Principal Secretary to Government (FAC), Public (S.C.) http://www.judis.nic.in 38 Department, Government of Tamil Nadu, who in-turn sought for opinion from the learned Public Prosecutor. The learned Public Prosecutor offered his opinion stating that the disproportionate assets below 10% would not amount to disproportionate income as held in Krishnanand case (cited supra) and the Government has accepted the same and decided to drop further action against the fourth respondent.

34. This Court is of the considered view that such an exercise ought to have been done only after full fledged trial and not by way of action dropping further proceedings against the fourth respondent. It is also to be noted at this juncture that originally the case was closed and only in pursuant to the orders dated 12.06.2018 passed in this writ petition, the check period was extended and upon conclusion of preliminary enquiry, it has been concluded that the fourth respondent is in possession of the assets exceeding 5% to his known source of income. In all fairness, atleast after the Preliminary Enquiry Report, the DVAC ought to have registered an F.I.R. and however, it is not so. Thus, the procedure contemplated under law, have been given a complete go-by.

35. Therefore, this Court disposes of this Writ Petition with the following direction:

http://www.judis.nic.in 39 The third respondent is directed to register an F.I.R. against the fourth respondent and thereafter, submit the Preliminary Enquiry Report along with Annexures I and II to the appropriate authority, seeking sanction to prosecute and depending upon the result of the same, shall take immediate, necessary and appropriate action in accordance with law.

(M.S.N.,J) 04.03.2021 http://www.judis.nic.in 40 R.HEMALATHA, J., "The King is under no man but under God and law" said Sir Edward Coke, the Chief Justice of England. This clearly signifies the equality before law whether the king or the common man.

2. The present writ petition was filed by one R.Mahendran, against the Chief Secretary, Government of Tamil Nadu (R1), the Secretary, Public (Special B) Department (R2), the Director, Vigilance and Anti-

Corruption (R3) and, Mr.K.P.Rajendra Balaji, Minister of Information, Government of Tamil Nadu (R4) praying for issuance of writ of mandamus to direct the third respondent to conduct enquiry on his complaint dated 10.10.2013 against the fourth respondent namely, Mr.K.P.Rajendra Balaji, for having purchased the assets, disproportionate to his known sources of income by abuse of his public office within a stipulated time.

3. In an earlier writ petition in WP.No.16867 of 2013 filed by one M.Raja with a similar plea based on his complaint dated 04.06.2013, the First Bench, where one of us (the Hon'ble Mr.Justice M.Sathyanarayanan) was part of the bench, dismissed the said petition http://www.judis.nic.in 41 vide orders dated 20.08.2013 stating that it was premature.

4. The present petitioner in his complaint dated 10.10.2013 alleged that the fourth respondent in his Form 26 filed before the Election Commission, at the time of filing his nomination for May 2011 General Elections, had declared his assets and also that he was not an income tax assessee and that he was not possessing a PAN card. This undertaking of the petitioner was dated 23.03.2011 and the complainant has further alleged that in the year 2012 and 2013, the fourth respondent purchased three immovable properties after he became a Minister in the State of Tamil Nadu, which according to the complainant was disproportionate to his known sources of income and they were also grossly undervalued in order to evade stamp duty. According to the petitioner, since the second respondent did not seem to evince any interest in investigating the contents of this complaint, he approached this Court with the aforesaid prayer.

5. This Court in order to render justice directed preliminary enquiry by the third respondent to go into the truth or otherwise of the allegations and find out whether prima facie case is made out. This Court in the order dated 12.06.2018, stated as follows:

http://www.judis.nic.in 42 "33. This Court on a thorough perusal, appraisal and consideration of the materials placed before it, is of the considered view that the preliminary enquiry has not at all been done properly and therefore, it is to be done once again by fixing the check period from 1996 onwards. The fourth respondent, at present, is a Minister in Council of Ministers and taking into consideration of this position, this Court is of the considered view that the preliminary enquiry is to be conducted by and officer belonging to Indian Police Service (I.P.S.) in the cadre of Superintendent of Police and the said official is to be nominated by the Director of DVAC, Chennai-16.

34. In the light of the reasons assigned above, the third respondent is directed to nominate an I.P.S. Officer in the rank of Superintendent of Police to conduct a fresh preliminary enquiry by fixing the check period from 1996, ie., the date on which he became the Vice President and Vice Chairman of Thiruthangal Town Panchayat till February, 2018 and a periodical status report is to be filed before this Court as to the progress being made in the preliminary enquiry as ordered by http://www.judis.nic.in this Court and shall be filed before this Court 43 in a sealed cover...."

6. It is pertinent to mention here that the scope of the check period was extended to cover up the period prior to 2011 and it was also directed that an Indian Police Service Officer of the rank of Superintendent of Police should conduct a fresh preliminary enquiry. Before delving into the merits of the case, the extracts of the Manual of the Directorate of Vigilance and Anti-Corruption, Tamil Nadu, Second Edition dated 30.12.1992 is reproduced for clarity.

PART IV PRELIMINARY ENQUIRIES

18. Scope and procedure Usually, the first enquiry into a complaint or information is Circularmemo. in the nature of a Preliminary Enquiry. This Preliminary Enquiry should be conducted with the utmost secrecy. Witnesses should normally be contacted only through sources or otherwise, indirectly. Where it becomes necessary to contact them directly, the purpose of enquiry must be suitably camouflaged. Willingness of witnesses to make statements, may be ascertained, but actual statements should not be Public http://www.judis.nic.in (Ser-B), recorded. Departmental files and other records 44 including those that may be available with private sources like Hotels, Lodging houses, Shops, etc., may be looked into. Departmental records may also be taken into custody wherever considered desirable in the interest of preserving any available evidence. Where there is some difficulty in taking them into custody, the Investigating Officer may peruse the records in the Department itself and if a particular record were to be found important for purposes of further enquiry, a written requisition should be given to the local responsible officer of the Department to keep that particular record in safe custody, under his personal responsibility, so that the record could he taken over, at a later stage, when required. Records with private parties may also be taken into custody, if the parties do not raise any objection. If objections are raised, summons from a Magistrate may be got issued by filing a written report before the Magistrate, indicating that an enquiry is being made 1 into the alleged commission of an offence connected with .. bribery, corruption, etc., and the need to secure the records concerned for the purpose of the enquiry.

PART Vlll CASES OF DISPROPORTIONATE ASSETS

67. Registration of Detailed Enquiry/Regular Case Illegal gratification obtained over a period of time leads to accumulation of assets/pecuniary resources http://www.judis.nic.in disproportionate to one's known sources of income. A 45 Public Servant is said to commit the offence of Criminal Misconduct under Section 13 (1) (e) of Prevention of Corruption Act 1988 (Central Act 49 of 1988), if he, or any person on his behalf, is in possession or has, at any time during the period of his office, been in possession for which the Public Servant cannot satisfactorily account, of pecuniary resources or properly disproportionate to his known sources of income. From the angle of departmental misconduct, possession of disproportionate assets leads to a conclusion that the Public Servant has not maintained absolute integrity. As such, a Detailed Enquiry or Regular Case is registered to coliect evidence of possession of disproportionate assets.

69. Plan of Enquiry/Investigation A Plan of Enquiry/Investigation should be drawn up on registration of the Detailed Enquiry/Regular Case and the major constituents of this Plan of Enquiry/Investigation are

(i) Obtaining property statements of the Public Servant in the prescribed proformae through the Head of Department/Undertaking,

(ii) Obtaining particulars of pay and allowances drawn by the Public Servant,

(iii) Evaluation of the buildings and other items of immovable property,

(iv) Computation of family consumption expenditure http://www.judis.nic.in including such computation from the Department of 46 Statistics,

(v) Scrutiny of Bank Accounts and Income Tax Returns and

(vi) Collection of information and evidence about concealed/benami assets, etc.

70.Check Period Check Period should be fixed taking Into account-

(i) Length of service of the Public Servant,

(ii) Start of assets acquiring activities,

(iii) Date of acquisition of the latest immovable property; and

(iv) Date of search conducted, if any.

71. Property Statements As soon as the Check Period is fixed, the Property Statements In Proformae 22 to 27, should be called for from http://www.judis.nic.in the Public Servant through the Head of the Department/ 47 Undertaking Under the Conduct rules, the Head of the Department, Undertaking Government can, at any time, require a Public Servant to furnish, within 2 period specified in the order, a full and complete statement of movable and immovable property held or acquired by him or on his behalf by any member of his family. Such statement shall include the means by which or the source from which such property was acquired. Any attempt to mislead and any failure to give full and correct information shall render the Public Servant liable to severe disciplinary action.

73. Evaluation Evaluation of the house and other immovable properties of the Public Servant is done by the Public Works Department on the basis of Plan particulars and period of construction furnished to them by the Investigating Officer. The building evaluation is prepared exclusive of the cost of land. It is based on the Public Works Department Schedule of rates and the prevailing market rates of the respective years. For the purpose of evaluation, the construction is divided into basic elements of work such as earth excavation, filling in foundation and basement, cement concrete work, brick work, R.C.C.work, fabrication and placement of steel bars, wood work, glass work, stone work, pipe work, electrical work, colour washing, distempering and varnishing, etc. http://www.judis.nic.in 48 74 Family Consumption Expenditure The average family consumption expenditure of the Public Servant is furnished by the Directorate of Statistics. It is based on the Consumer Price Index Numbers for Non- Manual employees issued by the Central Statistical Organisation, New Delhi. The Investigating Officer should furnish details regarding name, age, sex, pay particulars, period and place of stay during the Check Period, of the Public Servant and his family members. There are verifiable items of expenditure for which evidence may be collected by examining the relevant witnesses/documents. While including these items in the expenditure statement, care should be taken to deduct corresponding amount in the figures furnished by the Department of Statistics by examining the Official who has furnished the statistical figures. Where the Public Servant gives details of his expenditure, these may be taken into account subject to verification and reasonableness. Benefit of doubt should be given to the Public Servant wherever there is a dispute and verification is not possible.

75. Benarni Assets (I) While investigating into allegations of possession of disproportionate assets, quite often Investigating Officers come across properties acquired by the Public Servants but held in the name of some other person.

http://www.judis.nic.in (2) Where any person purchases property in the name 49 of another, for his own benefit, with no intent to make that other person the beneficiary thereof, it is called a "Benami transaction". The nominal owner is the benamidar. The simple import of the word of "benami" is that a purchaser desires to buy property but does riot desire to buy in his own name and therefore, buys in the name of someone else.

(3) Under Section 13 (1) (e) of the Prevention of Corruption Act, 1988, such benami assets are also to be heated as assets acquired by the Public Servant as the said section also uses the expression "or any person on his behalf is in possession.

7. The Directorate of Vigilance and Anti-Corruption was formed in pursuance of the recommendations by the Santhanam Committee (Prevention of Corruption). The main functions of the Directorate of Vigilance and Anti-Corruption are,

(a) To conduct enquires into allegations of corruption and allied misconduct referred to by the State Vigilance Commission / Government.

(b) To furnish the State Vigilance Commission information and statistics gathered by the Directorate.

(c) To institute enquiries on the complainants made by the members of public regarding the alleged corrupt practices by the public servants.

http://www.judis.nic.in 50

(d) To collect intelligence for detection of cases of bribery and corruption and to investigate offences falling within the purview of the Prevention of Corruption Act, 1988 and the Amended Act with effect from 26.07.2018.

(e) On specific complaints, traps are organized after complying with the norms and the Government Servants are caught red handed while accepting bribe.

8. It is true that corruption is like a virus and though we have criminal laws in place to weed out corruption, it continues to exist. At the same time, at most care needs to be taken to ensure equality in justice. While Common Law establishes general rules which provides certainty, Equitable Rights act as a check and balance of common law. This arises from the strict application of the common law. The cases of corruption against the political leaders in India are not rare. This is one such case that notified the alleged corruption carried out by a prominent politician, leading to conduct of a preliminary enquiry to find out the truth or otherwise of the allegations levelled against him.

9. This Court in the instant case, ensures that every one is equal before law. The Constitutional Bench of the Hon'ble Apex Court in http://www.judis.nic.in 51 Lalita Kumari vs. Government of Uttar Pradesh and others reported in (2014) 2 SCC 1 has observed thus.

"120......... 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"

10. In the instant case, the Superintendent of Police, Vigilance and Anti-Corruption, Chennai investigated the case and examined 90 witnesses including two police officers who had earlier conducted Preliminary Enquiry and collected 94 documents. In the report of http://www.judis.nic.in Tmt.R.Ponni, I.P.S., it was found that the fourth respondent was in 52 possession of properties in his name which were disproportionate to his known source of income to the extent of Rs.16,04,962/- working out to 5.03% for which he was not able to account for satisfactorily. The Directorate of Vigilance and Anti Corruption had forwarded the said report to the Principal Secretary to Government, Public Department, Government of Tamil Nadu who in turn referred it to the learned Public Prosecutor, High Court of Madras who offered his opinion that as per the Hon'ble Apex Court decision in Krishnanand Agnihotri vs. State of Madhya Pradesh reported in (1977) 1 SCC 816, any disproportionate assets less than 10% would not tantamount to be categorized to be disproportionate assets. Based on this legal opinion, the second respondent had informed the third respondent vide letter dated 10.08.2019, that decision to drop further action against the fourth respondent has been taken.

11. In my considered opinion, the Directorate of Vigilance and Anti Corruption have made thorough enquiry into the allegations against the fourth respondent and in all fairness submitted an extensive report to the Government. It is also crucial to mention at this juncture that neither the petitioner nor his counsel appeared in this case and they have literally abandoned the case. The facts of the case pertains to 2012-2013. Based http://www.judis.nic.in 53 on the declaration made before the Election Commission, it can be easily deciphered that the fourth respondent was not educated. The preliminary enquiry was done by different police officials in the rank of Indian Police Service Officers and have been thoroughly analyzed by the Directorate of Vigilance and Anti Corruption. Mr.I.Subramaniam, learned Senior Counsel and Mr.M.Ajmal Khan, learned Senior counsel appearing for the fourth respondent relied on the decision in the State of Telangana vs. Sri Managipet @ Mangipet Sarveshwar Reddy in Criminal Appeal No.1662 of 2019, arising out of Special Leave (Petition Criminal) No.3632 of 2019, wherein it is held thus.

"Therefore, we hold that the preliminary inquiry warranted in Lalita Kumari 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 First Information is sufficient."

http://www.judis.nic.in 54 The learned counsels for the respondents contended that since there are no parameters for conducting preliminary enquiry, the examination of 90 witnesses and collection of 94 documents cannot be said to be wrong and in fact, Tmt.R.Ponni, I.P.S. has thoroughly enquired into the allegations made against the fourth respondent. It is their further submission that it is also clear from the report of the I.P.S. Officer that there is no necessity to prosecute the fourth respondent in view of the entire investigation conducted by her. The Hon'ble Apex Court in the decision in Krishnanand Agnihotri vs. State of Madhya Pradesh (cited supra) in paragraph 33 held that if the excess is comparatively small, it would be right to hold that the assets found in the possession were not disproportionate to the known sources of income raising the presumption under Sub Section (3) of Section 5 of the Prevention of Corruption Act. The said principle was evolved by keeping in mind the inflationary trend in the appreciation of value of assets.

12. It is also worthwhile to mention here that the check period commenced from 1996 and there is bound to be inflationary effect on the value of the properties. In the instant case, it was found to be only 5.03% which is very much less than suggested 10% in Krishnanand Agnihotri case (cited supra). It is also to be taken into account that the case http://www.judis.nic.in 55 pertains to the year 2012-2013 and the check period was fixed from 1996 making it all the more reasonable for the margin of 10% to be applied. Therefore, I do not find any reason to interfere with the action of the respondents 1 to 3 who according to me have acted in a fair manner. If the findings of the procedure conducted by the third respondent is found fault with, it would only cause a blot to the police officials who have done remarkable job. Further, most of these kind of cases are politically motivated and they have the effect of damaging one's reputation belittling their image in the eyes of the public. Therefore, I beg to differ with the conclusion arrived out by the Hon'ble Mr.Justice Sathyanarayanan in disposing the writ petition directing the third respondent to file First Information Report against the fourth respondent.

13. The allegation in the original complaint was that the fourth respondent has purchased three properties in 2012 in his name after becoming a Minister in the Tamil Nadu State. The first preliminary report did not find anything amiss and therefore, decision to drop any further proceedings was taken. However, this Court extended the check period spreading over 22 years. Another prominent aspect to be mentioned here is that the fourth respondent was engaged in real estate business and in the preliminary enquiry no discrepancy was found in the http://www.judis.nic.in 56 declaration in Form 26 given by him on 23.03.2011. It can also be observed that between the findings of the first Preliminary Report for a limited period and the Second Preliminary Report for the extended period, there is no significant finding against the fourth respondent except for the effect of the inflation on the value of assets which worked out to 5.03%. No other startling revelations or disclosures have come up to conclude that there is a prima facie congnizable offence. The third respondent has definitely applied his mind to all the aspects of the findings in the second Preliminary Report and accordingly recommended for dropping any further action and the same was accepted by the Government. In such a scenario, I do not find any prima facie case made out against the fourth respondent warranting registration of First Information Report. Any further action in this case would not serve any useful purpose and it would be only like flogging a dead horse.

14. In the result, the writ petition is dismissed and no orders to costs.

[R.H., J] 04.03.2021 Index http://www.judis.nic.in :Yes/No Internet :Yes/No 57 Jvm/mbi Note: The Registrar [Judicial] is directed to keep the Status Report filed by the DVAC in sealed covers under safe custody. To

1.The Chief Secretary, Government of Tamil Nadu, Fort St.George, Chennai-600 009.

2.The Secretary, Public (Special B) Department, Fort St.George, Chennai-600 009.

3.The Director, Vigilance & Anti Corruption, Fort St.George, Chennai-600 009.

Copy to:

4.The Registrar (Judicial), High Court, Madurai.

http://www.judis.nic.in 58 M.SATHYANARAYANAN, J.

AND R.HEMALATHA, J.

Jvm/mbi Order in W.P.(MD).No.19558 of 2013 04.03.2021 http://www.judis.nic.in

Unlock Advanced Research with PRISMAI

Madras High Court