Madhya Pradesh High Court
Ravindra Sakhwar vs The State Of Madhya Pradesh on 6 December, 2024
Author: Gurpal Singh Ahluwalia
Bench: G. S. Ahluwalia
NEUTRAL CITATION NO. 2024:MPHC-GWL:22301 1
M.Cr.C. No. 51224 of 2024
IN THE HIGH COURT OF MADHYA PRADESH
AT Gwalior
BEFORE
HON'BLE SHRI JUSTICE G. S. AHLUWALIA
ON THE 6th OF DECEMBER, 2024
MISC. CRIMINAL CASE No. 51224 of 2024
RAVINDRA SAKHWAR
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Ms. Arti Anuragi, Advocate for applicant.
Shri Naval Kishor Gupta, Government Advocate for
respondent/State.
ORDER
This application, under section 528 of BNSS, has been filed for quashment of FIR in Crime No.40/2023 registered at Police Station Mahua, District Morena, for offences under sections 294, 506, 34 of IPC.
2. It is submitted by counsel for applicant that FIR was lodged on allegation that on 25/3/2023, at 4 PM complainant was in his house. On the issue of post of President of Sakhbar Dharamshala situated in Porsa, Dinesh Sakhbar and Ravindra Sakhbar came to his house and started abusing him filthily. When he objected to it, then Dinesh Sakhbar took out a sword and extended a threat to his life. Incident was witnessed by his uncle Ramlal Sakhbar and son Shyambir Sakhbar, who also intervened in the matter. Accordingly, police has registered Crime No.40/2023 at Police Station Mahua, District Morena and also filed charge-sheet.
Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 12/16/2024 7:50:03 PM NEUTRAL CITATION NO. 2024:MPHC-GWL:22301 2 M.Cr.C. No. 51224 of 20243. Challenging the FIR. it is submitted by counsel for applicant that FIR was lodged without conducting any preliminary enquiry. In fact, FIR was lodged on account of previous enmity. FIR has been lodged due to malafide and on 25/3/2023, applicant was not present on the spot, whereas he was present in Ambah where he was getting treatment from Dr. Rakesh Singh. Thus, applicant has taken the plea of alibi.
4. Heard, learned counsel for applicant.
5. Whether FIR in absence of preliminary enquiry is bad ? The aforesaid question is no more res integra.
6. The Supreme Court in the case of Central Bureau of Investigation (CBI) and Anr. v. Thommandru Hannah Vijayalakshmi @ T. Н. Vijayalakshmi and Anr. decided on 08.10.2021 in Criminal Appeal No.1045/2021 has held as under:-
"9 (iii) A Preliminary Enquiry is only conducted when the information received is not sufficient to register a Regular Case. However, when the information available is adequate to register a Regular Case since it discloses the commission of a cognizable offence, no Preliminary Enquiry is necessary. This will depend on the facts and circumstances of each case, and the Preliminary Enquiry cannot be made mandatory for all cases of alleged corruption. This proposition finds support in the judgments of this Court in Lalita Kumari v. Govt. of UP and others (-Lalita Kumari) and The State of Telangana v. Managipet (-Managipet);
(iv) The FIR was registered on the basis of reliable source information collected during the investigation of another case in which the first respondent was one of the accused.
During the investigation of that case, CBI conducted searches at four places belonging to the first respondent Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 12/16/2024 7:50:03 PM NEUTRAL CITATION NO. 2024:MPHC-GWL:22301 3 M.Cr.C. No. 51224 of 2024 during which documents were seized and she was also examined. On the basis of such information and documents, the FIR was registered in the present case. Hence, there was no need for a Preliminary Enquiry;
(v) There is also no need to conduct a Preliminary Enquiry since the respondents will be provided with an opportunity to explain each and every acquisition of their assets, and their income and expenditure during the check during period, the investigation. Hence, it was not necessary to provide this opportunity before the registration of an FIR (through a Preliminary Enquiry) since there would have been a risk of tampering with or destruction of evidence by the accused persons;
(vi) The Investigating Officer has no duty to call for any explanation from the accused in relation to their assets before registering an FIR against them since doing so would further lengthen the proceeding. In any case, such an opportunity is available to the accused persons at the stage of trial. This principle emerges from the judgments of this Court in K. Veeraswami v. Union of India (-K. Veeraswamil), Union of India and another v. W.N. Chadha, State of Maharashtra v. Ishwar Piraji Kalpatri, Narendar G. Goel v. State of Maharashtra and Samaj Parivarthan Samudhaya v. State of Karnataka;
D Whether a Preliminary Inquiry is mandatory before registering an FIR D.1 Precedents of this Court
12. Before proceeding with our analysis of the issue, it is important to understand what previous judgements of this Court have stated on the issue of whether CBI is required to conduct a Preliminary Enquiry before the registration of Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 12/16/2024 7:50:03 PM NEUTRAL CITATION NO. 2024:MPHC-GWL:22301 4 M.Cr.C. No. 51224 of 2024 an FIR, especially in cases of alleged corruption against public servants.
13. The first of these is a judgment of a two Judge Bench in P Sirajuddin (supra), in which it was observed that before a public servant is charged with acts of dishonesty amounting to serious misdemeanor, some suitable preliminary enquiry must be conducted in order to obviate incalculable harm to the reputation of that person. Justice G K Mitter held that: -
17... Before a public servant, whatever be his status, is publicly charged with acts of dishonesty which amount to serious misdemeanour or misconduct of the type alleged in this case and a first information is lodged against him, there must be some suitable preliminary enquiry into the allegations by a responsible officer. The lodging of such a report against a person, specially one who like the appellant occupied the top position in a department, even if baseless, would do incalculable harm not only to the officer in particular but to the department he belonged to, in general...
(emphasis supplied)
14. 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 Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 12/16/2024 7:50:03 PM NEUTRAL CITATION NO. 2024:MPHC-GWL:22301 5 M.Cr.C. No. 51224 of 2024 held to have been established only on completion of a preliminary enquiry.
15. The most authoritative pronouncement of law emerges from the decision of a Constitution Bench in Lalita Kumari (supra). The issue before the Court was whether -a police officer is bound to register a first information report (FIR) upon receiving any information relating to commission of a cognizable offence under Section 154 of the Code of Criminal Procedure 1973...or the police officer has the power to conduct a preliminary inquiry in order to test the veracity of such information before registering the samel. Answering this question on behalf of the Bench, Chief Justice P Sathasivam held that under Section 154 of the Code of Criminal Procedure 197355, a police officer need not conduct a preliminary enquiry and must register an FIR when the information received discloses the commission of a cognizable offence. Specifically with reference to the provisions of the CBI Manual, the decision noted: -
89. Besides, the learned Senior Counsel relied on the special procedures prescribed under the CBI Manual to be read into Section 154. It is true that the concept of "preliminary inquiry" is contained in Chapter IX of the Crime Manual of CBI. However, this Crime Manual is not a statute and has not been enacted by the legislature. It is a set of administrative orders issued for internal guidance of the CBI officers. It cannot supersede the Code.
Moreover, in the absence of any indication to the contrary in the Code itself, the provisions of the CBI Crime Manual cannot be relied upon to import the concept of holding of preliminary inquiry in the scheme of the Code of Criminal Procedure. At this juncture, it is also pertinent to submit that CBI is constituted under a special Act namely, the Delhi Special Police Establishment Act, Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 12/16/2024 7:50:03 PM NEUTRAL CITATION NO. 2024:MPHC-GWL:22301 6 M.Cr.C. No. 51224 of 2024 1946 and it derives its power investigate from this Act.
(emphasis supplied) However, the Court was also cognizant of the possible misuse of the powers under criminal law resulting in the registration of frivolous FIRs. Hence, it formulated - exceptions to the general rule that an FIR must be registered immediately upon the receipt of information disclosing the commission of a cognizable offence. The Constitution Bench held:
-115. Although, we, in unequivocal terms, hold that Section 154 of the Code postulates the mandatory registration of FIRs on receipt of all cognizable offences, yet, there may be instances where preliminary inquiry may be required owing to the change in genesis and novelty of crimes with the passage of time...
[...]
117. In the context of offences relating to corruption, this Court in P. Sirajuddin [P. Sirajuddin v. 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 Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 12/16/2024 7:50:03 PM NEUTRAL CITATION NO. 2024:MPHC-GWL:22301 7 M.Cr.C. No. 51224 of 2024 been committed. But, if the information given clearly mentions the commission of a cognizable offence, there is no other option but to register an FIR forthwith. Other considerations are not relevant at the stage of registration of FIR, such as, whether the information is falsely given, whether the information is genuine, whether the information is credible, etc. These are the issues that have to be verified during the investigation of the FIR. At the stage of registration of FIR, what is to be seen is merely whether the information given ex facie discloses the commission of a cognizable offence. If, after investigation, the information given is found to be false, there is always an option to prosecute the complainant for filing a false FIR.
(emphasis supplied) The judgment provides the following conclusions:
120. In view of the aforesaid discussion, we hold:
120.1. The registration of FIR is mandatory under Section 154 of the Code, if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation. 120.2. If the information received does not disclose a cognizable offence but indicates the necessity for an inquiry, a preliminary inquiry may be conducted only to ascertain whether cognizable offence disclosed or not.
[...] 120.5. The scope of preliminary inquiry is not to verify the veracity or otherwise of the information received but ascertain only whether to 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 Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 12/16/2024 7:50:03 PM NEUTRAL CITATION NO. 2024:MPHC-GWL:22301 8 M.Cr.C. No. 51224 of 2024 category of cases in which preliminary inquiry may be made are as under:
[...]
(d) Corruption cases [...] The aforesaid illustrations are and only not exhaustive of all conditions which may preliminary inquiry.
(emphasis supplied) The Constitution Bench thus held that a Preliminary Enquiry is not mandatory when the information received discloses the commission of a cognizable offence. Even when it is conducted, the scope of a Preliminary Enquiry is not to ascertain the veracity of the information, but only whether it reveals the commission of a cognizable offence. The need for a Preliminary Enquiry will depend on the facts and circumstances of each case. As an illustration, corruption casesl fall in that category of cases where a Preliminary Enquiry -may be madel. The use of the expression -may be madel 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.
16. 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 appellant- informant. In the his concurring opinion, Justice KM Joseph described that a barrier to granting the relief of registration of an FIR against a public figure would be the observations of this Court in Lalita Kumari (supra) noting that a Preliminary Enquiry may be desirable before doing so. Justice Joseph observed:
Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 12/16/2024 7:50:03 PM NEUTRAL CITATION NO. 2024:MPHC-GWL:22301 9 M.Cr.C. No. 51224 of 2024-108. Para 120.6 [of Lalita Kumari] deals with the type of cases in which preliminary inquiry may be made. Corruption cases are one of the categories of cases where a preliminary inquiry may be conducted... [...]
110. In para 117 of Lalita Kumari [Lalita Kumari v. State of U.P., (2014) 2 SCC 1 : (2014) 1 SCC (Cri) 524], this Court referred to the decision in P. Sirajuddin v. State of Madras [P. Sirajuddin v. State of Madras, (1970) 1 SCC 595: 1970 SCC (Cri) 240] and took the view that in the context of offences related to corruption in the said decision, the Court has expressed a need for a preliminary inquiry before proceeding against public servants.
[...]
112. In Lalita Kumari [Lalita Kumari v. State of U.P., (2014) 2 SCC 1: (2014) 1 SCC (Cri) 524], one of the contentions which was pressed before the Court was that in certain situations, preliminary inquiry is necessary. In this regard, attention of the Court was drawn to CBI Crime Manual...
[...]
114. The Constitution Bench in Lalita Kumari [Lalita Kumari v. State of U.P., (2014) 2 SCC 1: (2014) 1 SCC (Cri) 524], 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 offences relating in 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 Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 12/16/2024 7:50:03 PM NEUTRAL CITATION NO. 2024:MPHC-GWL:22301 10 M.Cr.C. No. 51224 of 2024 inquiry when there is delay, laches in initiating criminal prosecution, for example, over three months. A preliminary inquiry, it is to be noticed in para 120.7, is to be completed within seven days.
(emphasis supplied)
17. The decision of a two Judge Bench in Managipet (supra) thereafter has noted that while the decision in Lalita Kumari (supra) held that a Preliminary Enquiry was desirable in cases of alleged corruption, that does not vest a right in the accused to demand Preliminary Enquiry. Whether a a Preliminary Enquiry is required or not will depends on the facts and circumstances of each case, and it cannot be said to be mandatory requirement without which a case cannot be registered against the accused in corruption cases. Justice Hemant Gupta held thus:
-28. In Lalita Kumari [Lalita Kumari v. State of U.P., (2014) 2 SCC 1 : (2014) 1 SCC (Cri) 524], the Court has laid down the cases in which a preliminary inquiry is warranted, more so, to avoid an abuse of the process of law rather than vesting any right in favour of an accused. Herein, the argument made was that if a police officer is 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 permissible in such 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 Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 12/16/2024 7:50:03 PM NEUTRAL CITATION NO. 2024:MPHC-GWL:22301 11 M.Cr.C. No. 51224 of 2024 matrimonial disputes/family disputes, commercial offences, medical negligence cases, corruption cases, etc. The judgment of this Court in Lalita Kumari [Lalita Kumari v. State of U.P., (2014) 2 SCC 1:
(2014) 1 SCC (Cri) 524] does not state that proceedings cannot be initiated against an accused without conducting a preliminary inquiry.
[...]
32... The scope and ambit of a preliminary inquiry being necessary before lodging an FIR would depend upon the facts of each case. There is no set format or manner in which a preliminary inquiry is to be conducted. The objective of the same is only to ensure that a criminal investigation process is not initiated on a frivolous and untenable complaint. That is the test laid down in Lalita Kumari [Lalita Kumari v. State of U.P., (2014) 2 SCC 1: (2014) 1 SCC (Cri) 524].
33. In the present case, the FIR itself shows that the information collected is in respect of disproportionate assets of the accused officer. The purpose of a preliminary inquiry is to screen wholly frivolous and motivated complaints, in furtherance of acting fairly and objectively. Herein, relevant information was available with the informant in respect of prima facie allegations disclosing a cognizable 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 Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 12/16/2024 7:50:03 PM NEUTRAL CITATION NO. 2024:MPHC-GWL:22301 12 M.Cr.C. No. 51224 of 2024 335: 1992 SCC (Cri) 426] wherein, this Court held inter alia that where the allegations made in the FIR or the complaint, even if they are taken at their face value and accepted in their entirety, do not prima facie constitute any offence or make out a case against the accused and also where a criminal proceeding is manifestly attended with mala fides and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.
34. Therefore, we hold that the preliminary inquiry warranted in Lalita Kumari [Lalita Kumari v. State of U.P., (2014) 2 SCC 1: (2014) 1 SCC (Cri) 524) is not required to be mandatorily conducted in all corruption cases. It has been reiterated by this Court in multiple instances that the type of preliminary inquiry to be conducted will depend on the facts and circumstances of each case. There are no fixed parameters on which such inquiry can be said to be conducted. Therefore, any formal and informal collection of information disclosing a cognizable offence to the satisfaction of the person recording the FIR is sufficient.
(emphasis supplied)
18. In Charansingh (supra), the two Judge bench was confronted with a challenge to a decision to hold a Preliminary Enquiry. The court adverted to the ACB Manual in Maharashtra and held that a statement provided by an individual in an open inquiryl 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 MR Shah, writing for the two Judge bench consisting also of one of us (Justice D Y Chandrachud) held:
Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 12/16/2024 7:50:03 PM NEUTRAL CITATION NO. 2024:MPHC-GWL:22301 13 M.Cr.C. No. 51224 of 2024-11. However, whether in a case of a complaint against a public servant regarding accumulating the assets disproportionate to his known sources of income, which can be said to be an offence under Section 13(1)(e) of the Prevention of Corruption Act, 1988, an enquiry at pre- FIR stage is permissible or not and/or it is desirable or not, if any decision is required, the same is governed by the decision of this Court in Lalita Kumari [Lalita Kumari v. State of U.P., (2014) 2 SCC 1: (2014) 1 SCC (Cri) 524].
11.1. While considering the larger question, whether police is duty-bound to register an FIR and/or it is mandatory for registration of FIR on receipt of information disclosing a cognizable offence and whether it is mandatory or the police officer has option, discretion or latitude of conducting preliminary enquiry before registering FIR, this Court in Lalita Kumari [Lalita Kumari v. State of U.P., (2014) 2 SCC 1:
(2014) 1 SCC (Cri) 524] has observed that it is mandatory to register an FIR on receipt of information disclosing a cognizable offence and it is the general rule.
However, while holding so, this Court has also considered the situations/cases in which preliminary enquiry is permissible/desirable. While holding that the registration of FIR is mandatory under Section 154, if the information discloses commission of a cognizable offence and no preliminary enquiry is permissible in such a situation and the same is the general rule and must be strictly complied with, this Court has carved out certain situations/cases in which the preliminary enquiry is held to be permissible/desirable before registering/lodging of an FIR. It is further observed that if the information received does not disclose a cognizable offence but indicates the necessity for an inquiry, a preliminary enquiry may be conducted to ascertain whether cognizable offence is disclosed or not. It is observed that as to what type and in which Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 12/16/2024 7:50:03 PM NEUTRAL CITATION NO. 2024:MPHC-GWL:22301 14 M.Cr.C. No. 51224 of 2024 cases the preliminary enquiry is to be conducted will depend upon the facts and circumstances of each case. [...]
14. In the context of offences relating to corruption, in para 117 in Lalita Kumari [Lalita Kumari v. State of U.P., (2014) 2 SCC 1: (2014) 1 SCC (Cri) 524], this Court also took note of the decision of this Court in P. Sirajuddin V. State of Madras [P. Sirajuddin v. 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 Therefore, Procedure. such a preliminary enquiry would be permissible only ascertain cognizable to whether 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 Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 12/16/2024 7:50:03 PM NEUTRAL CITATION NO. 2024:MPHC-GWL:22301 15 M.Cr.C. No. 51224 of 2024 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 investigation, if preliminary enquiry conducted to the the is 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 (Crl) 524] before lodging the FIR, an enquiry is held and/or conducted after procedure following as Maharashtra AntiCorruption Prohibition the per State & Intelligence Bureau Manual, it cannot be said that the same is illegal and/or the police officer, Anti-Corruption Bureau has no jurisdiction and/or authority and/or power at all to conduct such an enquiry at pre- registration of FIR stage.
(emphasis supplied) Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 12/16/2024 7:50:03 PM NEUTRAL CITATION NO. 2024:MPHC-GWL:22301 16 M.Cr.C. No. 51224 of 2024
19. Hence, all these decisions do not mandate that a Preliminary Enquiry must be conducted before the registration of an FIR in corruption cases. An FIR will not stand vitiated because a Preliminary Enquiry has not been conducted. The decision in Managipet (supra) dealt specifically with a case of Disproportionate Assets. In that context, the judgment holds that where relevant information regarding prima facie allegations disclosing a cognizable offence is available, the officer recording the FIR can proceed against the accused on the basis of the information without conducting a Preliminary Enquiry.
20. This conclusion is also supported by the judgment of another Constitution Bench in K. Veeraswami (supra). The judgment was in context of Section 5(1)(e) of the old Prevention of Corruption Act 1947, which is similar to Section 13(1)(e) of the PC Act. It was argued that: (i) a public servant must be afforded an opportunity to explain the alleged Disproportionate Assets before an Investigating Officer; (ii) this must then be included and explained by the Investigating Officer while filing the charge sheet; and (iii) the failure to do so would render the charge sheet invalid.
Rejecting this submission, the Constitution Bench held that doing so would elevate the Investigating Officer to the role of an enquiry officer or a Judge and that their role was limited only to collect material in order to ascertain whether the alleged offence has been committed by the public servant. In his opinion for himself and Justice Venkatachaliah, Justice K Jagannatha Shetty held thus:
-75...since the legality of the charge-sheet has been impeached, we will deal with that contention also. Counsel laid great emphasis on the expression for which he cannot satisfactorily account used in clause (e) of Section 5(1) of the Act. He argued that that term means that the public servant is entitled to an opportunity before the Investigating explain Officer to 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 Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 12/16/2024 7:50:03 PM NEUTRAL CITATION NO. 2024:MPHC-GWL:22301 17 M.Cr.C. No. 51224 of 2024 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 and prepares a report which he files in the court as charge-sheet.
(emphasis supplied) 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."Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 12/16/2024 7:50:03 PM NEUTRAL CITATION NO. 2024:MPHC-GWL:22301 18 M.Cr.C. No. 51224 of 2024
7. This Court in the case of Meera Yadav Vs. State of M.P. decided on 26/9/2023 in W.P. No. 9743/2022 has held as under:-
"34. Therefore, it is clear that non holding of preliminary enquiry will not vitiate the FIR. Furthermore, this Court has already come to the conclusion that allegations made against the petitioner makes out a cognizable offence."
8. Therefore, it is clear that non holding of preliminary enquiry will not vitiate the FIR. Thus, it is clear that merely because FIR in question was not preceded by preliminary enquiry, it will not vitiate the FIR.
9. So far as question of malafide is concerned, the Supreme Court in the case of Renu Kumari Vs. Sanjay Kumar and others reported in (2008) 12 SCC 346 has held as under:-
9. "8. Exercise of power under Section 482 CrPC in a case of this nature is the exception and not the rule. The section does not confer any new powers on the High Court. It only saves the inherent power which the Court possessed before the enactment of CrPC. It envisages three circumstances under which the inherent jurisdiction may be exercised, namely,
(i) to give effect to an order under CrPC, (ii) to prevent abuse of the process of court, and (iii) to otherwise secure the ends of justice. It is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction. No legislative enactment dealing with procedure can provide for all cases that may possibly arise. The courts, therefore, have inherent powers apart from express provisions of law which are necessary for proper discharge of functions and duties imposed upon them by law. That is the doctrine which finds expression in the section which Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 12/16/2024 7:50:03 PM NEUTRAL CITATION NO. 2024:MPHC-GWL:22301 19 M.Cr.C. No. 51224 of 2024 merely recognises and preserves inherent powers of the High Courts. All courts, whether civil or criminal possess, in the absence of any express provision, as inherent in their constitution, all such powers as are necessary to do the right and to undo a wrong in the course of administration of justice on the principle of quando lex aliquid alicui concedit, concedere videtur et id sine quo res ipsae esse non potest (when the law gives a person anything, it gives him that without which it cannot exist). While exercising the powers under the section, the court does not function as a court of appeal or revision.
Inherent jurisdiction under the section, though wide, has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone the courts exist. Authority of the court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the court has the power to prevent abuse. It would be an abuse of process of the court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers the court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the report, the court may examine the question of fact. When a report is sought to be quashed, it is permissible to look into the materials to assess what the report has alleged and whether any offence is made out even if the allegations are accepted in toto.
Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 12/16/2024 7:50:03 PM NEUTRAL CITATION NO. 2024:MPHC-GWL:22301 20 M.Cr.C. No. 51224 of 20249. In R.P. Kapur v. State of Punjab [AIR 1960 SC 866 : (1960) 3 SCR 388] this Court summarised some categories of cases where inherent power can and should be exercised to quash the proceedings:
(i) where it manifestly appears that there is a legal bar against the institution or continuance e.g. want of sanction;
(ii) where the allegations in the first information report or complaint taken at their face value and accepted in their entirety do not constitute the offence alleged;
(iii) where the allegations constitute an offence, but there is no legal evidence adduced or the evidence adduced clearly or manifestly fails to prove the charge. (AIR p. 869)
10. In dealing with the last category, it is important to bear in mind the distinction between a case where there is no legal evidence or where there is evidence which is clearly inconsistent with the accusations made, and a case where there is legal evidence which, on appreciation, may or may not support the accusations. When exercising jurisdiction under Section 482 CrPC, the High Court would not ordinarily embark upon an enquiry whether the evidence in question is reliable or not or whether on a reasonable appreciation of it accusation would not be sustained. That is the function of the trial Judge. Judicial process should not be an instrument of oppression, or, needless harassment. The court should be circumspect and judicious in exercising discretion and should take all relevant facts and circumstances into consideration before issuing process, lest it would be an instrument in the hands of a private complainant to unleash vendetta to harass any person needlessly. At the same time the section is not an instrument Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 12/16/2024 7:50:03 PM NEUTRAL CITATION NO. 2024:MPHC-GWL:22301 21 M.Cr.C. No. 51224 of 2024 handed over to an accused to short-circuit a prosecution and bring about its sudden death. The scope of exercise of power under Section 482 CrPC and the categories of cases where the High Court may exercise its power under it relating to cognizable offences to prevent abuse of process of any court or otherwise to secure the ends of justice were set out in some detail by this Court in State of Haryana v. Bhajan Lal [1992 Supp (1) SCC 335 :
1992 SCC (Cri) 426 : AIR 1992 SC 604] . A note of caution was, however, added that the power should be exercised sparingly and that too in the rarest of rare cases. The illustrative categories indicated by this Court are as follows : (SCC pp. 378-79, para
102) '(1) Where the allegations made in the first information report 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.
(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
(4) Where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 12/16/2024 7:50:03 PM NEUTRAL CITATION NO. 2024:MPHC-GWL:22301 22 M.Cr.C. No. 51224 of 2024 Magistrate as contemplated under Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the Act concerned (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the Act concerned, providing efficacious redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.'
11. As noted above, the powers possessed by the High Court under Section 482 CrPC are very wide and the very plenitude of the power requires great caution in its exercise. The court must be careful to see that its decision, in exercise of this power, is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. The High Court being the highest court of a State should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of magnitude and cannot be seen in their true perspective without sufficient material. Of course, no hard-and-fast rule can be laid down in Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 12/16/2024 7:50:03 PM NEUTRAL CITATION NO. 2024:MPHC-GWL:22301 23 M.Cr.C. No. 51224 of 2024 regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceeding at any stage. [See Janata Dal v. H.S. Chowdhary [(1992) 4 SCC 305 : 1993 SCC (Cri) 36 : AIR 1993 SC 892] and Raghubir Saran (Dr.) v. State of Bihar [AIR 1964 SC 1 : (1964) 1 Cri LJ 1].] It would not be proper for the High Court to analyse the case of the complainant in the light of all probabilities in order to determine whether a conviction would be sustainable and on such premises arrive at a conclusion that the proceedings are to be quashed. It would be erroneous to assess the material before it and conclude that the complaint cannot be proceeded with. When an information is lodged at the police station and an offence is registered, then the mala fides of the informant would be of secondary importance. It is the material collected during the investigation and evidence led in the court which decides the fate of the accused person. The allegations of mala fides against the informant are of no consequence and cannot by themselves be the basis for quashing the proceedings. [See Dhanalakshmi v. R. Prasanna Kumar [1990 Supp SCC 686 : 1991 SCC (Cri) 142] , State of Bihar v. P.P. Sharma [1992 Supp (1) SCC 222 : 1992 SCC (Cri) 192] , Rupan Deol Bajaj v. Kanwar Pal Singh Gill [(1995) 6 SCC 194 :
1995 SCC (Cri) 1059] , State of Kerala v. O.C. Kuttan [(1999) 2 SCC 651 : 1999 SCC (Cri) 304] , State of U.P. v. O.P. Sharma [(1996) 7 SCC 705 :
1996 SCC (Cri) 497] , Rashmi Kumar v. Mahesh Kumar Bhada [(1997) 2 SCC 397 : 1997 SCC (Cri) 415], Satvinder Kaur v. State (Govt. of NCT of Delhi) [(1999) 8 SCC 728 : 1999 SCC (Cri) 1503] and Rajesh Bajaj v. State NCT of Delhi [(1999) 3 SCC 259 : 1999 SCC (Cri) 401] .]"Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 12/16/2024 7:50:03 PM NEUTRAL CITATION NO. 2024:MPHC-GWL:22301 24 M.Cr.C. No. 51224 of 2024
The above position was again reiterated in State of Karnataka v. M. Devendrappa [(2002) 3 SCC 89 :
2002 SCC (Cri) 539] , State of M.P. v. Awadh Kishore Gupta [(2004) 1 SCC 691 : 2004 SCC (Cri) 353] and State of Orissa v. Saroj Kumar Sahoo [(2005) 13 SCC 540 : (2006) 2 SCC (Cri) 272] , SCC pp. 547-50, paras 8-11."
10. Thus, it is clear that when allegations made in the complaint make out a cognizable offence, then malafides of complainant become secondary. Furthermore, enmity is a double edged weapon. On one hand if it provides motive for false implication, then on other hand it also provides motive for commission of offence. Therefore, FIR cannot be quashed on the above mentioned disputed question of fact. If allegations made in the FIR are considered, then it is clear that cognizable offence has been made out.
11. So far as plea of alibi is concerned, it has been contended by counsel for applicant that at the time of incident, applicant was not present on the spot and he was taking treatment from Dr. Rakesh Singh at Ambah.
In support of his contention, applicant has filed copy of haematology report as well as one prescription which is written on a plain paper.
12. Plea of alibi is a highly disputed question of fact which has to be proved by accused by leading cogent evidence. The Supreme Court in the case of Vijay Pal v. State (Govt. of NCT of Delhi), reported in (2015) 4 SCC 749 has held as under :
25. At this juncture, we think it apt to deal with the plea of alibi that has been put forth by the appellant. As is demonstrable, the trial court has discarded the plea of alibi. When a plea of alibi is Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 12/16/2024 7:50:03 PM NEUTRAL CITATION NO. 2024:MPHC-GWL:22301 25 M.Cr.C. No. 51224 of 2024 taken by an accused, burden is upon him to establish the same by positive evidence after onus as regards presence on the spot is established by the prosecution. In this context, we may profitably reproduce a few paragraphs from Binay Kumar Singh v. State of Bihar: (SCC p. 293, paras 22-23) "22. We must bear in mind that an alibi is not an exception (special or general) envisaged in the Penal Code, 1860 or any other law. It is only a rule of evidence recognised in Section 11 of the Evidence Act that facts which are inconsistent with the fact in issue are relevant. Illustration (a) given under the provision is worth reproducing in this context:
'(a) The question is whether A committed a crime at Calcutta on a certain day. The fact that, on that date, A was at Lahore is relevant.'
23. The Latin word alibi means 'elsewhere' and that word is used for convenience when an accused takes recourse to a defence line that when the occurrence took place he was so far away from the place of occurrence that it is extremely improbable that he would have participated in the crime. It is a basic law that in a criminal case, in which the accused is alleged to have inflicted physical injury to another person, the burden is on the prosecution to prove that the accused was present at the scene and has participated in the crime. The burden would not be lessened by the mere fact that the accused has adopted the defence of alibi.
The plea of the accused in such cases need be considered only when the burden has been discharged by the prosecution satisfactorily. But once the prosecution succeeds in discharging the burden it is incumbent on the accused, who adopts the plea of alibi, to prove it with absolute certainty so as to exclude the possibility of his presence at the place of occurrence. When the presence of the accused at the scene of occurrence has been established satisfactorily by the prosecution through reliable evidence, normally the court would be slow to believe any counter-evidence to the effect that he was elsewhere when the occurrence happened. But if the evidence adduced by the accused is of such a quality and of such a standard that the court may entertain some reasonable doubt regarding his presence at the Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 12/16/2024 7:50:03 PM NEUTRAL CITATION NO. 2024:MPHC-GWL:22301 26 M.Cr.C. No. 51224 of 2024 scene when the occurrence took place, the accused would, no doubt, be entitled to the benefit of that reasonable doubt. For that purpose, it would be a sound proposition to be laid down that, in such circumstances, the burden on the accused is rather heavy. It follows, therefore, that strict proof is required for establishing the plea of alibi."
(emphasis supplied) The said principle has been reiterated in Gurpreet Singh v. State of Haryana, Sk. Sattar v. State of Maharashtra and Jitender Kumar v. State of Haryana.
13. The Supreme Court in the case of S.K.Sattar v. State of Maharashtra, reported in (2010) 8 SCC 430 has held as under :
35. Undoubtedly, the burden of establishing the plea of alibi lay upon the appellant. The appellant herein has miserably failed to bring on record any facts or circumstances which would make the plea of his absence even probable, let alone, being proved beyond reasonable doubt. The plea of alibi had to be proved with absolute certainty so as to completely exclude the possibility of the presence of the appellant in the rented premises at the relevant time. When a plea of alibi is raised by an accused it is for the accused to establish the said plea by positive evidence which has not been led in the present case. We may also notice here at this stage the proposition of law laid down in Gurpreet Singh v. State of Haryana as follows: (SCC p. 27, para 20) "20. ... This plea of alibi stands disbelieved by both the courts and since the plea of alibi is a question of fact and since both the courts concurrently found that fact against the appellant, the accused, this Court in our view, cannot on an appeal by special leave go behind the abovenoted concurrent finding of fact."
36. But it is also correct that, even though the plea of alibi of the appellant is not established, it was for the prosecution to prove the case against the appellant. To this extent, the submission of the learned counsel for the appellant was correct. The failure of the plea of alibi would not necessarily lead to the success of the prosecution case which has to be independently proved by the Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 12/16/2024 7:50:03 PM NEUTRAL CITATION NO. 2024:MPHC-GWL:22301 27 M.Cr.C. No. 51224 of 2024 prosecution beyond reasonable doubt. Being aware of the aforesaid principle of law, the trial court as also the High Court examined the circumstantial evidence to exclude the possibility of the innocence of the appellant.
14. The Supreme Court in the case of Binay Kumar Singh v. State of Bihar, reported in (1997) 1 SCC 283 has held as under:
22. We must bear in mind that an alibi is not an exception (special or general) envisaged in the Indian Penal Code or any other law.
It is only a rule of evidence recognised in Section 11 of the Evidence Act that facts which are inconsistent with the fact in issue are relevant. Illustration (a) given under the provision is worth reproducing in this context:
"The question is whether A committed a crime at Calcutta on a certain date; the fact that on that date, A was at Lahore is relevant."
23. The Latin word alibi means "elsewhere" and that word is used for convenience when an accused takes recourse to a defence line that when the occurrence took place he was so far away from the place of occurrence that it is extremely improbable that he would have participated in the crime. It is a basic law that in a criminal case, in which the accused is alleged to have inflicted physical injury to another person, the burden is on the prosecution to prove that the accused was present at the scene and has participated in the crime. The burden would not be lessened by the mere fact that the accused has adopted the defence of alibi. The plea of the accused in such cases need be considered only when the burden has been discharged by the prosecution satisfactorily. But once the prosecution succeeds in discharging the burden it is incumbent on the accused, who adopts the plea of alibi, to prove it with absolute certainty so as to exclude the possibility of his presence at the place of occurrence. When the presence of the accused at the scene of occurrence has been established satisfactorily by the prosecution through reliable evidence, normally the court would be slow to believe any counter-evidence to the effect that he was elsewhere when the Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 12/16/2024 7:50:03 PM NEUTRAL CITATION NO. 2024:MPHC-GWL:22301 28 M.Cr.C. No. 51224 of 2024 occurrence happened. But if the evidence adduced by the accused is of such a quality and of such a standard that the court may entertain some reasonable doubt regarding his presence at the scene when the occurrence took place, the accused would, no doubt, be entitled to the benefit of that reasonable doubt. For that purpose, it would be a sound proposition to be laid down that, in such circumstances, the burden on the accused is rather heavy. It follows, therefore, that strict proof is required for establishing the plea of alibi. This Court has observed so on earlier occasions (vide Dudh Nath Pandey v. State of U.P.; State of Maharashtra v. Narsingrao Gangaram Pimple.''
15. No other argument is advanced by counsel for applicant.
16. Considering the totality of facts and circumstances of case, no case is made out warranting interference.
17. Application fails and is, hereby, dismissed.
(G.S.Ahluwalia)
` Judge
(and)
Signature Not Verified
Signed by: ANAND
SHRIVASTAVA
Signing time: 12/16/2024
7:50:03 PM