Recently, the Allahabad High Court reiterated that an accused public servant has no legal right to explain alleged disproportionate assets before registration of an FIR under the Prevention of Corruption Act, 1988, while dismissing a writ petition challenging vigilance proceedings. The Court upheld the validity of an FIR lodged under Sections 13(1)(b) and 13(2) of the Prevention of Corruption Act, 1988, observing that the law does not mandate either a prior hearing or a compulsory preliminary inquiry before registration of a corruption case where cognizable material already exists. The Bench significantly remarked that requiring such pre-FIR explanations would effectively elevate the investigating officer to the position of an enquiry officer or a Judge.
Brief facts:
The case stemmed from a vigilance inquiry into allegations that a public servant had amassed disproportionate assets beyond his known sources of income, leading to registration of an FIR under Sections 13(1)(b) and 13(2) of the Prevention of Corruption Act, 1988. The vigilance authorities alleged that the Petitioner’s expenditure and assets substantially exceeded his lawful income during the check period. Challenging the FIR before the High Court, the Petitioner argued that the proceedings were illegal as no prior explanation regarding the alleged disproportionate assets had been sought from him before registration of the case. He also relied upon earlier interim directions restraining authorities from compelling disclosure of asset details during the inquiry stage.
Contentions of the Petitioner:
The Petitioner argued that Explanation 1 to Section 13(1)(b) of the Prevention of Corruption Act specifically contemplates a situation where a public servant “cannot satisfactorily account” for disproportionate assets, and therefore an opportunity to explain the source of income ought to have been granted before lodging the FIR. It was contended that the vigilance department itself had admitted in its inquiry report that no explanation concerning income or expenditure had been sought from the petitioner. The Petitioner further relied upon various interim orders passed by the High Court in similar disproportionate assets cases to contend that FIRs lodged without affording such an opportunity were legally unsustainable.
Contentions of the Respondent:
On the other hand, the State opposed the writ petition contending that settled legal principles make it clear that a public servant cannot claim a right to explain alleged disproportionate assets before registration of an FIR. The Counsel further argued that the vigilance authorities had already conducted an open inquiry and gathered sufficient material indicating the commission of a cognizable offence, which justified immediate registration of the case under the Prevention of Corruption Act.
Observation of the Court:
The Division Bench of Justice Abdul Moin and Justice Pramod Kumar Srivastava observed, “The Apex Court in the case of Thommandru Hannah Vijaylakshmi (supra) after considering the judgment of the Apex Court in the case of K. Veeraswami (supra) categorically held that as 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 filing of a charge sheet, the similar right cannot be granted to the accused before filing of the First Information Report by making a preliminary inquiry mandatory.”
“From a perusal of the judgments of the Apex Court in the case of Thommandru Hannah Vijaylakshmi (supra), Sri Channakeshava. H.D (supra) & K. Veeraswami (supra) and the discussion made above it emerges that the Apex Court after considering the provisions of the Act, 1988 has categorically held that an accused public servant does not have any right to explain the alleged disproportionate assets before filing of the First Information Report”, added the Bench.
The Court observed, “From a perusal of Section 13 of the Act, 1988 it emerges that the a public servant is said to commit an offence of criminal conduct if he dishonestly or fraudulently misappropriates or otherwise converts for his own use any property entrusted to him or any property under his control or allows any other person to do so or he intentionally enriches himself illicitly during the period of his office.” The Bench further clarified that Explanation 1 to Section 13(1)(b) merely creates a presumption regarding illicit enrichment and does not mandate that a prior explanation must necessarily be sought from the accused before registration of an FIR. The Court rejected the petitioner’s interpretation that the absence of such an opportunity would automatically invalidate the vigilance proceedings.
The Bench further held, “Argument of the learned counsel for the petitioner that as Explanation 1 to Section 13 (1) (b) of the Act, 1988 categorically provides that a person can only be presumed to have enriched himself or to be in possession of pecuniary resources in case he cannot satisfactorily account for the same and as such, an explanation of the public servant has to be taken prior to lodging of the First Information Report under Section 13 of the Act, 1988 is patently misconceived.” The Court emphasised that no words can be added to the statute when the legislature itself has not provided for any mandatory pre-FIR hearing. The Bench made it clear that reading such a procedural safeguard into the provision would amount to judicial overreach beyond the statutory framework enacted under the Prevention of Corruption Act.
The Court observed, “The investigating officer is only required to collect material to find out whether the offence alleged appears to have been committed.” Quoting extensively from the Constitution Bench judgment in K. Veeraswami v. Union of India, the Bench reiterated that the role of the investigating officer is confined to the collection of incriminating material and not adjudication upon the accused’s defence. The Court further emphasised that compelling the investigating officer to first evaluate whether the accused’s explanation is satisfactory would improperly convert the investigator into an enquiry officer or a Judge, which is wholly inconsistent with the scheme of criminal investigation under law.
The Bench held, “the accused public servant does not have any right to explain the disproportionate assets prior to lodging of First Information Report.” The Court reiterated, while referring to the decisions of the Apex Court delivered in multiple cases, that the settled legal position leaves no scope for insisting upon a prior hearing before registration of a corruption case. The Court further observed that even though the earlier writ proceedings had restrained authorities from demanding asset disclosures during the inquiry stage, the same could not override the binding principles laid down by the Supreme Court on registration of FIRs in disproportionate assets cases.
The Court observed, “The said ‘source report’ is in fact a kind of preliminary inquiry in which the petitioner has been found to be having disproportionate assets.” The Bench noted that the vigilance department had already conducted an open inquiry and collected sufficient source material disclosing prima facie commission of a cognizable offence before registration of the FIR. The Court held that once such credible source information exists, registration of the FIR cannot be faulted merely because no separate opportunity of explanation was granted to the accused public servant.
The decision of the Court:
In light of the foregoing discussion, the Court dismissed the writ petition and upheld the FIR registered against the petitioner under the Prevention of Corruption Act. The Court held that neither the Prevention of Corruption Act nor the criminal procedure framework mandates a pre-FIR opportunity of hearing to a public servant in disproportionate assets cases.
Case Title: Deena Nath Yadav Vs. State of U.P. Thru. Prin. Secy. Deptt. Home, Confidential, and Vigilance, LKo. and Others
Case No.: Criminal Misc. Writ Petition No. - 4156 of 2026
Coram: Hon'ble Mr. Justice Abdul Moin, J. Hon'ble Mr. Justice Pramod Kumar Srivastava
Advocate for the Petitioner: Adv. Indu Prakash Singh
Advocate for the Respondent: G.A.
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